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COMMONWEALTH EX REL. NICHOLS v. HENDRICK. (04/12/62)

THE SUPERIOR COURT OF PENNSYLVANIA


April 12, 1962

COMMONWEALTH EX REL. NICHOLS, APPELLANT,
v.
HENDRICK.

Appeal, No. 358, Oct. T., 1961, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1961, No. 3862, in case of Commonwealth ex rel. Sherwood Nichols v. Edward J. Hendrick, Superintendent. Appeal dismissed.

COUNSEL

Malcolm W. Berkowitz, for appellant.

Arlen Specter, Assistant District Attorney, with him Arthur J. Marion, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 197 Pa. Super. Page 647]

OPINION BY MONTGOMERY, J.

In this appeal from the dismissal of his petition for a writ of habeas corpus, relator-appellant contends that he was denied due process as guaranteed by article I, section 9 of the Pennsylvania Constitution, by the Due Process and Equal Protection Clause of the United States Constitution, and also by the Magistrates' Court Act of 1937, Act of June 15, 1937, P.L. 1743, No. 368, ยงยง 1-14, 42 P.S. 1101-1114 (PP). In support of his contention he assigns alleged irregularities relating to a preliminary hearing conducted in connection with a criminal proceeding wherein he was charged with larceny of an automobile and operating a motor vehicle without the consent of the owner. As a result of that hearing he was held for grand jury action, and committed in default of $1,000 bail, set by the magistrate.

Following a hearing on his petition for the writ, the lower court (WEINROTT, J.) concluded that relator was not illegally detained and that he was not denied due process of law; and dismissed the petition. This appeal followed.

This appeal must be dismissed as interlocutory and as not involving any jurisdictional or constitutional question. In Commonwealth ex rel. Nichols v. Lederer, 193 Pa. Superior Ct. 482, 165 A.2d 711, affirmed 404 Pa. 218, 172 A.2d 319, we held appeals such as this to be interlocutory. In Commonwealth v. O'Brien, 181 Pa. Superior Ct. 382, 124 A.2d 666, this Court held that a similar relator was not deprived of any constitutional rights because he had not been afforded a preliminary hearing in a criminal matter. Jurisdiction is not questioned, therefore Commonwealth ex rel. DiDio v. Baldi, 176 Pa. Superior Ct. 119, 106 A.2d 910, does not apply.

Disposition

Appeal dismissed.

19620412

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