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COMMONWEALTH EX REL. WATSON v. MONTONE. COMMONWEALTH EX REL. JOHNSON (04/03/74)

decided: April 3, 1974.

COMMONWEALTH EX REL. WATSON, APPELLANT,
v.
MONTONE. COMMONWEALTH EX REL. JOHNSON, APPELLANT, V. MONTONE



Appeals from orders of Court of Common Pleas, Family Division, of Philadelphia, March T., 1973, Nos. 2234 and 2290, in case of Commonwealth of Pennsylvania ex rel. Walter Watson v. Eugene Montone, Director, Youth Study Center, and Commonwealth of Pennsylvania ex rel. Gregory Johnson v. Same.

COUNSEL

Earle D. Lees, Assistant Defender, Michael L. Levy, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellants.

Lewis P. Mitrano, James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Cercone, J., concurs in the result.

Author: Spaeth

[ 227 Pa. Super. Page 542]

Two appeals are before the court, each by a juvenile, and each from the denial of a petition for writ of habeas corpus. They must be quashed.

Under the Juvenile Act, Act of December 6, 1972, P. L. 1464, No. 333, § 1 et seq., 11 P.S. §§ 50-101 to 103, 50-201, 50-301 to 335, if the proper authorities conclude that a child accused of an offense should be confined rather than sent home until notified to appear, a petition is presented to the court and within 72 hours an informal detention hearing is held. § 15, 11 P.S. § 50-312.

[ 227 Pa. Super. Page 543]

If the court decides that the child should be kept in custody, it "shall fix a time" for an adjudicatory hearing, which, "if the child is in detention, shall not be later than ten days after the filing of the petition." § 18(a), 11 P.S. § 50-315(a). "If the hearing is not held within such time, the child shall be immediately released from detention." Id.

Appellants, having been kept in custody, were brought before The Honorable Harvey N. Schmidt for an adjudicatory hearing on March 30, 1973. This was within ten days of their informal detention hearing. The Commonwealth, however, requested and was granted a continuance. Since the continuance delayed the adjudicatory hearing beyond the ten day period specified by § 18(a), 11 P.S. § 50-315(a), counsel for appellants sought their immediate release, first by oral request and then by petitions for writ of habeas corpus. When both requests were denied, counsel filed an appeal with this court and requested a supersedeas. Before the supersedeas could be acted upon, appellants were brought before The Honorable Paul A. Tranchitella. The Commonwealth was again not ready to proceed. Judge Tranchitella thereupon released one of appellants (he was eventually placed on probation); the other appellant was detained but only because other charges were outstanding against him. On April 16, 1973, this court refused appellants' petition for supersedeas.

"The existence of an actual controversy is an essential to appellate jurisdiction." Commonwealth ex rel. Ogden v. Cairns, 48 Pa. Superior Ct. 265, 266 (1911). For this reason, "if pending an appeal an event occurs which renders it impossible for the appellate court to grant any relief the appeal will be dismissed." Reichard's License, 45 Pa. Superior Ct. 606, 607 (1911). In the present case such an event has occurred. Appellants assert that under § 18(a), 11 P.S. § 50-315(a),

[ 227 Pa. Super. Page 544]

    they were entitled on March 30, 1973, to "be immediately released from detention." However, they have been released: one is on probation, and although the other is in detention, that is on other charges. Appellants' assertion regarding § 18(a) therefore presents an issue upon which no relief can be granted. Commonwealth ex ...


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