Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, No. 659 S.A. of 1975, in case of Commonwealth of Pennsylvania v. Mike Regan, a/k/a John Michael Regan.
Michael A. Donadee, with him Richard K. Brandt and Frank I. Smizik, for appellant.
No appearance entered nor brief submitted for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring Opinion by Spaeth, J.
[ 240 Pa. Super. Page 636]
John Michael Regan brings this appeal from the denial by the Allegheny County Court of Common Pleas of his petition for leave to file an appeal in forma pauperis. Because the denial of his petition was based on an improper administrative order promulgated by the lower court, we reverse.
The appellant was convicted by a district magistrate of a summary offense, retail theft, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3929, and sentenced to pay a fine of $200.00 plus costs of $11.00. On July 28, 1975, he attempted to take an appeal from this sentence to the court of common pleas by filing a notice of appeal following the form set forth in Pa.R.Crim.P. 67-68. However, the prothonotary refused to accept the notice of appeal because no receipt was attached showing payment of the fine and costs. The prothonotary was
[ 240 Pa. Super. Page 637]
acting in accordance with an administrative order entered on July 14, 1975 by the President Judge of the Allegheny Court of Common Pleas which required that "no appeal be allowed from a summary conviction unless the costs and fine are paid to the issuing authority (Justice of the Peace or Magistrate) or to the Prothonotary of this Court prior to the taking of an appeal."
Appellant then filed his petition for leave to appeal in forma pauperis alleging that his poverty prevented his paying the fine and costs and attaching an affidavit of indigency. In his affidavit it was asserted that appellant was employed and had a weekly net income of $94.00 and no savings or other property other than his one operable car and two other vehicles which were not operable. On this income appellant was supporting a dependent wife and two children. The court below, considering itself bound by the administrative order of the president judge, felt compelled to deny the petition and did so on August 1, 1975. Appeal was subsequently brought to this Court.
Following a conviction in a summary proceeding a defendant is entitled to an appeal to the court of common pleas. Pa. Const. art. V, § 9 (1968);*fn1 Pa.R.Crim.P. 67.*fn2
[ 240 Pa. Super. Page 638]
Appeals from summary judgments are perfected by filing a notice of appeal within 20 days of conviction stating, among other things, "the fine and costs imposed, if any, and whether the same have been paid." Pa.R.Crim.P. 67(b)(6). The rule states no additional requirements for perfection of an appeal; nowhere does it require payment of costs or fines imposed as a precondition to an appeal. To require the defendant to state whether the fine and costs have been paid does not demand that he pay them before the ...