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decided: June 14, 1973.


Appeals from orders of Court of Common Pleas of Wyoming County, March T., 1972, Nos. 36 and 37, in case of Commonwealth of Pennsylvania v. Guy Cook and Bruce E. Daugherty.


M. J. DeSisti, for appellants.

James E. Davis, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Wright, P. J., would affirm on the order of the court below.

Author: Spaulding

[ 226 Pa. Super. Page 275]

Appellants Guy Cook and Bruce E. Daugherty were convicted at separate hearings by a Wyoming County District Justice of the Peace on charges of speeding in violation of The Vehicle Code.*fn1 Contending that the Commonwealth has failed to satisfy its statutory requirement of establishing the accuracy of radar equipment used in detecting the offense, appellants petitioned the Court of Common Pleas for a writ of certiorari in order to obtain a view of the transcript of the summary proceedings. The court ordered the praecipe for the writ to be dismissed, the writ quashed and the convictions affirmed on the grounds that appellants' claims were not the proper subject for review on certiorari. Appellants appeal from the order.

Under the Minor Judiciary Court Appeals Act, Act of December 2, 1968, P. L. 1137, § 1, 42 P.S. § 3001 et seq., a defendant, after being convicted in summary proceeding may elect to bring an appeal to the court of common pleas and obtain a trial de novo*fn2 or, in the alternative, may petition the court of common pleas of the district to issue a writ of certiorari and to bring the transcript of the summary proceedings before it for review of that record.*fn3 Appellants in this case opted for the latter.*fn4

The court below, in denying appellants the relief they sought via certiorari, "attempted to settle the

[ 226 Pa. Super. Page 276]

    comparative roles of an appeal from a conviction in a summary proceeding under the Minor Judiciary Court Appeals Act . . . and the device of Certiorari." The court was of the opinion ". . . [a]ny question is raisable in an appeal under the Minor Judiciary Court Appeals Act, but that Certiorari allows an extremely narrow scope of review. 'Ordinarily Certiorari in a summary criminal matter may deal only with questions of law, not questions of fact, not the admissibility, competency, sufficiency, or relevancy of evidence heard by the Justice of the Peace.' [Citing Commonwealth v. Rosenberger, No. 88, January Term (Court of Common Pleas, Wyoming County).]"

While the Court of Common Pleas, in its reviewing capacity on certiorari, is given discretion in granting such relief (by the very terms of the Minor Judiciary Court Appeals Act*fn5), we find that the court erred in holding that the instant case fell beyond its scope of review. The court below was correct in asserting that where there exists a statutory right of appeal, questions of fact may not be reviewed on certiorari. The latter device, in reviewing the regularity of the record, can only properly entertain questions of law, to the exclusion of issues related to the sufficiency, admissibility, competency or relevancy of evidence presented to the justice of the peace. Commonwealth v. Quinn, 215 Pa. Superior Ct. 78, 257 A.2d 266 (1969); Wilmington Steamship Co. v. Haas, 151 Pa. 113, 25 A. 85 (1892). The instant case, however, raises a question of law which is reviewable on certiorari.

[ 226 Pa. Super. Page 277]

The Act under which appellants were convicted mandates that such convictions cannot be sustained unless the Commonwealth produces proof of, inter alia, the accuracy of the radar detecting device used, and the posting of radar warning signs on the highway.*fn6 Where by statutory requirement the method of proving an offense must include the production of evidence of a

[ 226 Pa. Super. Page 278]

    specific type and it is alleged that the record is wholly devoid of any such showing, the assertions raise a question of law reviewable on certiorari. The absence of this required Commonwealth testimony on the face of the transcript returned by the magistrate renders that transcript fatally defective. Commonwealth v. Simons, 214 Pa. Superior Ct. 337, 257 A.2d 694 (1969). See Commonwealth v. Brose, 412 Pa. 276, 194 A.2d 322 (1963). "Generally, summary proceedings must be strictly pursued since they are not only penal in nature but also because they deny the right of trial by jury." Simons, supra at 340-41.

The court below thus erred in concluding that appellants' contentions were not properly raisable on certiorari. The order of the court below is reversed and the cases remanded for further consideration of the petitions for certiorari.


Order reversed and case remanded.

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