Appeal from the Order of the Municipal Court of Philadelphia County in case of Commonwealth of Pennsylvania v. Southeastern Pennsylvania Transit Authority, No. M.C. 71-10-586.
Lewis H. Van Dusen, Jr., with him J. Freedley Hunsicker, Jr. ; Or counsel, Drinker, Biddle & Reath, for appellant.
T. Michael Mather, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
An appeal from an Order of the Philadelphia Municipal Court was filed in this Court and the Commonwealth by the District Attorney of Philadelphia County moved to quash the appeal. This is the issue to be resolved by us.
The District Attorney of Philadelphia filed in the Philadelphia Municipal Court in October, 1971, a criminal complaint against the Southeastern Pennsylvania Transportation Authority (SEPTA) alleging that SEPTA had violated Section 612 of the Pennsylvania Penal Code, Act of June 24, 1939, P.L. 872, § 612, 18 P.S. § 4612, by operating and maintaining a public nuisance. The complaint charged that the fleet of buses which SEPTA operates in the City and County of Philadelphia continuously emits excessive volumes of smoke fumes, odors, gases and other noxious materials. The prosecution seeks a court order which would direct SEPTA to abate the alleged practices by installing certain remedial equipment and programming suitable operating procedures.
SEPTA moved to quash the complaint on the grounds, inter alia, that it was an agency and instrumentality of the Commonwealth and as such was not subject to criminal prosecution.*fn1 The court below ruled that the Municipal Court did have jurisdiction and dismissed SEPTA's motion. It found that the provisions of the legislation by which SEPTA was created made it the proper subject of criminal prosecution.*fn2
SEPTA thereafter appealed the order to us on the grounds that: SEPTA, as an agency and instrumentality of the Commonwealth is not subject to criminal prosecution under The Penal Code; that the Air Pollution Control Act, 35 P.S. § 4000, et seq., superseded and repealed Section 612 of The Penal Code, 18 P.S. § 4612, and that SEPTA is not subject to criminal prosecution because the Air Pollution Control Act established exclusive procedures in the air pollution field.
The District Attorney in turn filed a motion to quash SEPTA's appeal alleging that this Court is without jurisdiction to hear an appeal in a criminal matter and that the Act of March 5, 1925, P.L. 23, § 672, 12 P.S. § 672, which provides for appeals from interlocutory orders, cannot be invoked for the purpose of establishing jurisdiction in the instant situation. The District Attorney alleges further that there are no exceptional circumstances which would warrant this Court's assumption of jurisdiction.
The Superior Court of Pennsylvania is the court of proper jurisdiction because this ...