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COMMONWEALTH v. CROFT (12/20/71)

decided: December 20, 1971.

COMMONWEALTH, APPELLANT,
v.
CROFT



Appeals from orders of Superior Court, Oct. T., 1970, Nos. 606, 607, 634, 648, and 649, vacating the orders and remanding the records of the Court of Common Pleas, Family Court Division, of Philadelphia, Nos. 39-69-33901, 19-69-80198, 23-69-58151, and 1-69-14563, in the matters of Ellis Croft, a minor, Maurice Murray, a minor, Matthew Jackson, a minor, Timothy Downs, a minor, and Kenneth Moore, a minor.

COUNSEL

Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Martha K. Treese, Assistant Defender, with her Vincent J. Ziccardi, Defender, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.

Author: Jones

[ 445 Pa. Page 580]

The Court of Common Pleas, Family Court Division, Juvenile Branch, of Philadelphia, adjudged each of the five appellees to be delinquent on various charges but

[ 445 Pa. Page 581]

    permitted them to remain in their respective homes subject to some form of juvenile probation. Timely petitions for rehearing were filed by each appellee alleging only that "errors of law and/or fact were made at the time of said hearing and that said Order was improvidently made." Each petition was subsequently denied as the juvenile court judge concluded that a rehearing is discretionary when the juvenile is not removed from his home. On appeal, the Superior Court reversed, two judges dissenting, and held that a rehearing was mandatory even with these limited forms of probation. Moore Appeal, 217 Pa. Superior Ct. 206, 269 A.2d 395 (1970). We granted the Commonwealth's petitions for allocatur.

These appeals do not present the question of a constitutional right to a rehearing; nor is there present any question of the denial of a juvenile's right to appeal. "The action of the juvenile court is always subject to appellate review and correction for errors of law or abuse of discretion." Holmes Appeal, 175 Pa. Superior Ct. 137, 146, 103 A.2d 454, 459 (1954); aff'd, 379 Pa. 599, 109 A.2d 523 (1954), cert. denied, 348 U.S. 973 (1955).

The sole question of law presented by these appeals is whether a rehearing, following a probation order, is mandatory or discretionary under Section 15 of The Juvenile Court Law (Act of June 2, 1933, P. L. 1433, § 15, 11 P.S. § 257) which provides:

"Within twenty-one (21) days after the final order of any judge of the juvenile court, committing or placing any dependent, neglected or delinquent child, such child shall, as a matter of right, by his or her parent or parents or next friend, have the right to present to the court a petition to have his or her case or cases reviewed and reheard, if, in the opinion of such parent, parents, or next friend, an error of fact or of law, or of both, has been made in such proceedings or final

[ 445 Pa. Page 582]

    order, or if the said order has been improvidently or inadvertently made.

" Upon the presentation of such petition the court shall grant such review and rehearing as a matter of right." (Emphasis added.)

The juvenile court judge relied on our language in Com. v. McIntyre, 435 Pa. 96, 98, 254 A.2d 639, 641 (1969), that, "'committing or placing' as used in 11 P.S. § 257 envisions an order of the juvenile court judge 'placing' the juvenile in a home or institution." As correctly demonstrated by the Superior Court, McIntyre is inapposite as it involved the issue whether a rehearing is mandatory following the juvenile court's certification of the case to the criminal court. Such certification does not "commit" or "place" the juvenile and, moreover, certification is not a final order.

We also agree with the Superior Court's determination that an order of the juvenile court allowing a juvenile to remain at home subject to some form of probation is a "final order". We similarly recognize and approve the Superior Court's conclusion that even limited forms of probation "constitute some interference with the adjudicated youth's civil liberty." 217 Pa. Superior Ct. at 208, 269 A.2d at 396. However, none of these legal principles resolve the pivotal issue posed by these appeals: Does a juvenile court order allowing the delinquent youth to remain at home subject to ...


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