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PHILADELPHIA v. DORTORT ET AL. (03/19/65)

decided: March 19, 1965.

PHILADELPHIA
v.
DORTORT ET AL., APPELLANTS



Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1963, No. 4604, in case of Commonwealth of Pennsylvania (amended to City of Philadelphia) v. Jerome Dortort et al.

COUNSEL

William Lee Akers, with him Harry Lore, for appellants.

William G. Klenk, II, Assistant City Solicitor, with him Matthew W. Bullock, Jr., Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 205 Pa. Super. Page 214]

This is an appeal from an order of Common Pleas Court No. 2 of Philadelphia County dismissing exceptions to a magistrate's return brought before the court on certiorari. The City of Philadelphia, appellee, has moved to dismiss it for the reasons that the Act of March 20, 1810, P. L. 208, 5 Sm. L. 161, § 22, 42 P.S. § 957, declares that the judgment of the Court of Common Pleas is final and unappealable in such cases, and Bell Appeal, 396 Pa. 592, 152 A.2d 731 (1959), held that the Superior Court has no right of review by certiorari. We are of the opinion that such right was subsequently given to this Court by the Act of August 14, 1963, P. L. 819, § 1, 17 P.S. § 184-184.1(pp), which we think was passed to overcome the effect of Bell Appeal. Therefore, the motion to dismiss will be denied.

Since the Act of 1810 aforesaid denied the right of appeal, our right of review must be on the basis of "narrow" certiorari, Kaufman Construction Company v. Holcomb, 357 Pa. 514, 55 A.2d 534 (1947), and our inquiry will be limited to a determination of whether the lower court had jurisdiction, whether the proceedings were regular, whether the lower court exceeded its power and authority, and whether there was a violation of constitutional rights. Badali v. Hartman, 410 Pa. 652, 190 A.2d 301 (1963). We are limited to a review of the record and may not properly consider matters dehors the record. Badali v. Hartman, supra; Roming v. Shivers, 156 Pa. Superior Ct. 205, 39 A.2d 786 (1944).

[ 205 Pa. Super. Page 215]

This action was begun by the filing of a complaint with the magistrate by the Deputy Police Commissioner of the City of Philadelphia and by the issuance of a summons in the name of the Commonwealth of Pennsylvania.

In the complaint appellants were charged with the common law indictable offense of breach of the peace,*fn1 and also that they on September 20, 1963, "did in violation of Chapter 10-500, Section 10-501(2)(h) of the Philadelphia Code of General Ordinances use a City facility, namely; the office of the Development Coordinator, Room 210, City Hall, Philadelphia, Pennsylvania, and entered into said City property, and remained therein, without authority, and refusing to leave the same when lawfully requested so to do. . . ."

After a hearing which the appellants attended the magistrate discharged appellants from the breach of the peace charge; but he found them guilty of violating the ordinance and imposed on each of them a fine of $50 and costs. Appellants did not appeal from these judgments but they petitioned the Common Pleas Court for a writ of certiorari to bring up the magistrate's record. After having permitted the proceedings to be amended by substituting the City of Philadelphia for the Commonwealth of Pennsylvania as the complainant because the criminal offense had been dismissed and only the violation of the ordinance remained, the lower court dismissed the exceptions to the return of the magistrate. In Pleasant Hills Borough v. Carroll, 182 Pa. Superior Ct. 102, 125 A.2d 466 (1956), we allowed a similar amendment. Also see Commonwealth v. Ashenfelder, 413 Pa. 517, 198 A.2d 514 (1964).

[ 205 Pa. Super. Page 216]

Although the present action was instituted in the name of the Commonwealth of Pennsylvania and was at first coupled with a criminal charge, those irregularities in the initial proceedings do not alter the fact that now we are dealing with a penalty for violating a municipal ordinance, which is a civil action and is not a summary conviction or a criminal offense. ...


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