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PHILADELPHIA v. HOME AGENCY (12/23/71)

decided: December 23, 1971.

PHILADELPHIA
v.
HOME AGENCY, INC. AND TOWER REAL ESTATE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of City of Philadelphia v. Home Agency, Inc. and Tower Real Estate, No. 2597 October Term, 1969. Appeal transferred from the Supreme Court of Pennsylvania to the Commonwealth Court of Pennsylvania, November 24, 1970.

COUNSEL

John B. Day, Assistant City Solicitor, with him Matthew W. Bullock, Jr., First Deputy City Solicitor, Francis J. Morgan, Assistant City Solicitor, Thomas A. Matthews, Assistant City Solicitor, and Levy Anderson, City Solicitor, for appellant.

Stephen A. Sheller, with him Astor & Weiss, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers. Concurring Opinion by Judge Crumlish, Jr. Judge Kramer joins in this Opinion. Dissenting Opinion by Judge Manderino.

Author: Rogers

[ 4 Pa. Commw. Page 175]

Here the City of Philadelphia represented by the City Solicitor caused to be filed in the Municipal Court of Philadelphia pleadings called Code Enforcement Complaints, charging the appellees, business entities, with violations of the Philadelphia Fair Practices Ordinance. A judge of the Municipal Court sustained demurrers and remanded the Complaints to the Commission on Human Relations for a public hearing. The City, believing these rulings to be erroneous, appealed to the court of common pleas 27 days after they were made. The common pleas court on motion of the appellees dismissed the appeals on the sole ground that they were not timely filed in compliance with Municipal Court Rule 6005(c) which provides: "The Commonwealth's appeal shall be taken not less than 15 days

[ 4 Pa. Commw. Page 176]

    from the date of the decision on the pretrial application." (Emphasis supplied.) Rule 6005(c) is one of a number of rules appearing under the general heading of Rules of Criminal Procedure for the Municipal Court of Philadelphia. Municipal Court Rule 29(a), on the other hand, provides as follows: "(a) An appeal from a final judgment or order of the Municipal Court shall be taken within thirty (30) days to the Trial Division of the Court of Common Pleas. . . ."

We have concluded that the lower court's holding that the appeal period was governed by criminal rule 6005(c) rather than general rule 29(a) is contrary to settled law and to rule 6005(c) itself.

It has been consistently held by the appellate courts of this State that prosecutions under municipal ordinances are civil, not criminal actions. We agree with the statement of the distinguished Solicitors of the City that:

"The courts have repeatedly held that despite the erroneous captioning of a case in the name of the Commonwealth,*fn1 despite calling the penalty a fine,*fn2 despite designating the offense a misdemeanor,*fn3 despite commencing the prosecution with a warrant,*fn4 despite the use of other criminally-oriented words,*fn5 the prosecution for violation of a municipal ordinance is a civil case. . . ."

We might add the words of Mr. Justice Cohen in Waynesburg Borough v. Van Scyoc, 419 Pa. 104, 105, 213 A.2d 216, 217 (1965) that "It is now the settled law of this Commonwealth that an action for violation of ...


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