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COMMONWEALTH v. BARNES (03/24/66)

decided: March 24, 1966.

COMMONWEALTH
v.
BARNES, APPELLANT



Appeal from order of Court of Quarter Sessions of Lancaster County, No. 3, page 50, in case of Commonwealth of Pennsylvania v. Raymond Barnes, Jr.

COUNSEL

Michael J. Perezous, for appellant.

Theodore A. Parker, Assistant District Attorney, with him Wilson Bucher, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Wright and Montgomery, JJ., would affirm the order below.

Author: Ervin

[ 207 Pa. Super. Page 208]

We are asked in this case to reverse the action of the court below in refusing the defendant's petition for the allowance of an appeal from a summary conviction before a magistrate, without having before us the transcript of the magistrate's record. All that we have are the defendant's petition and the order of the

[ 207 Pa. Super. Page 209]

    court refusing the appeal. The court below did not write an opinion.

Art. V, § 14 of the Constitution of Pennsylvania provides: "In all cases of summary conviction in this Commonwealth, or of judgment in suit for a penalty before a magistrate, or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or judge thereof upon cause shown." To put such a provision into effect, the legislature passed the Act of April 17, 1876, P. L. 29, 19 PS § 1189, which provides, as amended: "In all cases of summary conviction in this Commonwealth, before a magistrate or court not of record, either party, even though any fine imposed has already been paid, may, within ten days after such conviction, appeal to the court of quarter sessions of the county in which such magistrate shall reside or court not of record shall be held, upon allowance of the said court of quarter sessions, or any judge thereof, upon cause shown; . . . ."

One of the earliest cases considering these provisions was Thompson v. Preston, 5 Pa. Superior Ct. 154 (1897). In that case it was said: "An appeal from the judgment of a magistrate for a penalty, or in a summary conviction, should not be allowed save for cause shown: McGuire v. Shenandoah, 109 Pa. 613; Commonwealth v. Eichenberg, supra [140 Pa. 158]. To ascertain the cause alleged, reference must be had to the petition presented to the court below: Commonwealth v. Menjou, 174 Pa. 25, and we cannot go outside the petition and deal with the case, as though it had originated on a certiorari to the magistrate. Ordinarily an appeal should not be permitted, if the party desiring it has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved, or there is something to indicate oppression, corruption or disregard of law on the part

[ 207 Pa. Super. Page 210]

    of the magistrate, or after-discovered evidence which would justify a new trial, under the well-known rules relating to new trials for that cause. Neither art. V, sec. 14 of the constitution, nor the act of 1876, which was passed to carry it into effect, contemplates that an appeal shall be allowed merely because the party desiring it is dissatisfied with the result of the trial before the magistrate, as is the case with most defeated litigants, and cheers himself with hopes of better success in the next encounter." See also: Com. v. Yocum, 29 Pa. Superior Ct. 428.

It was in Com. v. Weimer, 36 Pa. Superior Ct. 451 (1908), that the first mention of a transcript of the magistrate is found. In that case Rice, P. J., said: "Undoubtedly for an abuse of discretion the party aggrieved by the refusal of the appeal would have a remedy in this court, but the abuse of discretion must appear somewhere in the proceedings sent up to us for review. . . . It is suggested in the appellant's argument that the case raises a difficult question of law, and we may say that if this appeared in the transcript of the magistrate and the transcript were before us this might be ground for holding that the court ought to have granted the appeal. But as we have suggested the transcript is not sent up and it is impossible to see how we can convict the court below of an abuse of discretion, unless it be held that upon an appeal from the action of the court the facts averred in the ...


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