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COMMONWEALTH v. RUCCO (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
RUCCO, APPELLANT



Appeal from order of Court of Common Pleas of Bucks County, No. 639 of 1973, in case of Commonwealth of Pennsylvania v. Francis Rucco.

COUNSEL

Clyde W. Waite, Assistant Public Defender, for appellant.

Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Van der Voort, J. Price, J., joins in this dissent.

Author: Hoffman

[ 229 Pa. Super. Page 249]

This is an appeal from an Order denying appellant's motion to quash an indictment based on an alleged violation of the "180 day rule."*fn1 We do not reach the substantive issue for it is clear that the appeal is from an interlocutory order and must be quashed.

With the exception of those classes of appeals which are within the exclusive jurisdiction of the Supreme and Commonwealth Courts, this court has appellate jurisdiction over "all appeals from final orders of the courts of common pleas." Appellate Court Jurisdiction Act, July 31, 1970, P. L. 673, No. 223, Art. III, § 211.302 (emphasis added). Our appellate jurisdiction extends to non-final orders only where: (a) an appeal from an interlocutory order is authorized by law: Appellate Court Jurisdiction Act, supra, § 501(a), 17 P.S. § 211.501 (a); (b) a lower court has certified the issue involved in the interlocutory order as "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter . . .": Id., § 501 (b), 17 P.S. § 211.501(b); or, (c) the appellee has waived an objection to the jurisdiction of the court: Appellate Court Jurisdiction Act, supra, § 503(a), 17 P.S. § 211.503(a). Regarding

[ 229 Pa. Super. Page 250]

    the latter two instances of jurisdiction over appeals from interlocutory orders, we may, in our discretion refuse to exercise that jurisdiction. We do not have that discretion in the instant case because the lower court has not certified the case as involving "a controlling question of law" and the appellee has specifically objected to our jurisdiction over this appeal. We have jurisdiction, therefore, only if the instant appeal is from a final order or if it is an appeal from an interlocutory order which is authorized by law.

Normally, an individual charged with a crime does not have the right to appeal before his trial and conviction, or thereafter until final judgment and sentence. Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954). Extraordinary circumstances "requiring the safeguarding of basic human rights" may justify the relaxation of this rule. See Commonwealth v. Trunk, 311 Pa. 555, 167 A. 333 (1933); Commonwealth v. Kilgallen, supra. Our courts have, however, consistently held that an order denying a motion to quash an indictment is interlocutory, and, hence, not appealable. Commonwealth v. Farris, 443 Pa. 251, 278 A.2d 906 (1971); Commonwealth v. Laughlin, 389 Pa. 109, 132 A.2d 265 (1957); Commonwealth v. O'Brien, 389 Pa. 109, 132 A.2d 265 (1957); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967); Commonwealth v. Fudeman, 186 Pa. Superior Ct. 547, 152 A.2d 428, aff'd 396 Pa. 236, cert. den., 361 U.S. 902, 80 S. Ct. 211 (1958). An appeal may however be taken from such an order when the indictment is defective on its face. Commonwealth v. Smith, 212 Pa. Superior Ct. 403, 244 A.2d 787 (1968). The indictment herein is not defective on its face, and appellant has not contended that extraordinary circumstances justify an exception to the rule. If appellant's claim that the "180 day rule" was violated is correct, he will have faced the expense and ordeal of a trial. This problem, however, would be present in every criminal

[ 229 Pa. Super. Page 251]

    case in which a pretrial order might terminate the proceedings. See Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968).

Appellant appears to be arguing that this appeal which is from an interlocutory order is one which is authorized by law. The argument is based upon the Act of June 28, 1957, P. L. 428, § 2, 19 P.S. § 881. That act provides that when there is a violation of the 180 day rule, "no court of this state shall any longer have jurisdiction [of the action]." Appellant argues that since the act is a jurisdictional one, an appeal from an order under the act raising a jurisdictional question should be allowed. We need not decide whether the act is a purely jurisdictional one or not for, assuming that it is, an appeal from an order thereunder is not authorized by law. Appeals from interlocutory orders raising questions of jurisdiction in civil ...


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