Appeals, No. 324, Jan. T., 1961, from order and sentence of Court of Quarter Sessions of the Peace of Philadelphia County, Amy T., 1961, Miscellaneous Docket, and No. 504, Jan. T., 1961, from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1961, No. 965, in case of Commonwealth of Pennsylvania v. Glenn W. Bricker. Order and sentence of Court of Quarter Sessions affirmed; order of Court of Common Pleas affirmed; reargument refused March 30, 1962.
Glenn W. Bricker, appellant, in propria persona.
Matthew W. Bullock, Jr., Assistant City Solicitor, with him Arlen Specter, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, James C. Crumlish, Jr., District Attorney, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
These are companion cases arising out of a set of circumstances following the arrest of the defendant on March 29, 1961, on which date the defendant was operating his automobile on East River Drive in Fairmount
Park, Philadelphia. The cases were argued together and will therefore be disposed of in one opinion.
On March 29, 1961, a traffic summons was issued by a Fairmount Park guard alleging that the defendant was operating at a speed of 50 miles an hour in a 35 mile an hour zone and notifying him to appear before Magistrate Marotta in traffic Court at 800 North Broad Street on April 5, 1961. Defendant appeared at that time and attempted to defend on the ground that since the summons alleged that he was operating at 50 miles an hour the Commonwealth must prove that he was operating at 50 miles an hour, not merely that he was exceeding 35 miles an hour, which he readily admitted. He also tried to introduce testimony as to the size of the tires on the police car and whether they were the same tires that were on the car at the time when its speedometer was tested. Defendant contended that this testimony would affect the reliability and accuracy of the evidence of speed as disclosed by the speedometer of the policeman's car. The magistrate rejected the defendant's contentions, adjudged him guilty and ordered him to pay a fine of $10 and $5 costs. Defendant refused to pay the fine and costs and in lieu thereof posted $25 bail to obtain his freedom.
Thereafter, defendant tried unsuccessfully to obtain a transcript from the Magistrate and on the 9th day, being fearful that the time for an appeal would lapse, filed a petition in the Miscellaneous Court of Quarter Sessions for a rule upon the Commonwealth to show cause why the order of the Magistrate should not be vacated. The rule was granted. On May 5, 1961, the matter came before Judge MILNER, sitting in the Court of Quarter Sessions. Judge MILNER held (1) that the procedure was improper, (2) that the defendant (a) should have appealed to the Court of Quarter Sessions, or (b) should have obtained a writ of certiorari issued out of the Court of Common Pleas. Accordingly, he discharged the rule, but stated that in the interest of
justice he would treat defendant's petition for a rule to show cause as an appeal. Defendant took no appeal from this order and made no objections to the ensuing hearing as on appeal and participated therein. In addition to the same defense which he had attempted to raise before the Magistrate, he raised an additional contention, viz., the Magistrate did not have jurisdiction because the Act*fn* purporting to establish the "Traffic Court of Philadelphia" ...