Appeal, No. 200, Oct. T., 1960, from order of Municipal Court of Philadelphia, July T., 1959, No. 1119, in case of John Gribbel, II v. George Donoian. Order affirmed.
Edward G. Bauer, Jr., with him Ballard, Spahr, Andrews & Ingersoll, for appellant.
Albert S. Fein, for appellee.
Before Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (rhodes, P.j., absent).
[ 193 Pa. Super. Page 446]
On June 23, 1959 a judgment was entered in Magistrate's Court No. 8, Philadelphia County, in favor of the plaintiff in an action in trespass in the amount of $92.83. On July 13, 1959 defendant filed an appeal in the Municipal Court of Philadelphia. On July 17, 1959 the plaintiff filed a motion to strike off the appeal for the reason that the Act of May 17, 1956, P.L. 1626, No. 541, 42 PS § 913a, limits the right of appeal from magistrate's judgment to cases where the judgment is in excess of $100.00. On August 5, 1959 the defendant filed a petition for rule to show cause why special leave to file an appeal under the Act of May 17, 1956 should not be allowed. On August 27, 1959 the defendant's rule was discharged by Judge FELIX PIEKARSKI but no action was taken on the plaintiff's motion to strike off the defendant's appeal. Judge PIEKARSKI gave no reason for striking off the defendant's rule. On April 25, 1960 the plaintiff's motion to strike off the defendant's appeal was dismissed by Judge JOHN A. BOYLE. He subsequently filed an opinion in which he found that the Act of May 17, 1956 did not apply to appeals from magistrates to the Municipal Court of Philadelphia. The plaintiff then filed this appeal.
On appeal the following questions were argued:
1. Is not the Act of May 17, 1956, P.L. 1626, 42 PS § 913a, unconstitutional?
2. Assuming that the Act of May 17, 1956, P.L. 1626, 42 PS § 913a, is constitutional, is it not true that this act does not apply to Philadelphia County as it does or may do to other counties in Pennsylvania?
[ 193 Pa. Super. Page 447]
Since we have unanimously agreed that the act is unconstitutional, it will be unnecessary for us to consider the second question.
The Act of May 17, 1956, P.L. 1626, No. 541, 42 PS § 913a, provides as follows: "In every action of trespass before a magistrate, alderman or justice of the peace, in which a right of appeal from the decision thereof to the court of common pleas now exists, the right of appeal shall hereafter apply only where the judgment given by the magistrate, alderman or justice of the peace shall exceed the amount of one hundred dollars ( $100), excluding costs. In case the amount of the judgment does not exceed one hundred dollars ( $100), the judgment ...