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COMMONWEALTH PENNSYLVANIA v. J. B. SACK (02/02/77)

decided: February 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
J. B. SACK, PITTSBURGH OFFICE FURNITURE, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of J. B. Sack, Pittsburgh Office Furniture, Plaintiff in error v. Commonwealth of Pennsylvania, Defendant in error, No. 5224 of 1975.

COUNSEL

Robert A. Jarvis, with him Beck, McGinnis & Jarvis, for appellant.

D. R. Pellegrini, Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellees.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 28 Pa. Commw. Page 423]

Several alleged violations of the Pittsburgh Fire Prevention Code*fn1 (Fire Code) are the seeds of a tangled and blighted case which this Court has been called upon to examine. The case is tangled because of the number of judicial entities which have become involved; it is blighted because none of those entities have yet allowed a hearing of the matter.

The City of Pittsburgh, through its Fire Prevention Bureau, filed what is called a criminal complaint*fn2 against J. B. Sack, Pittsburgh Office Furniture (Sack) on May 22, 1975. Before a hearing could be held before the magistrate of the housing court, Sack filed a praecipe for a writ of certiorari with the Court of Common Pleas of Allegheny County. The writ was granted ex parte by Judge Brown, and the magistrate was directed to return to the prothonotary of the common pleas court the record of the proceedings and "all things touching on the subject," which at this point consisted solely of the complaint. When, two weeks later, the record was received, notice of the writ of certiorari was sent to the City.

Thereafter, the City moved to quash the writ, contending, inter alia, that such writ was not to be issued prior to judgment by the magistrate. On August 15, 1975, Judge Farino quashed the writ of certiorari and directed that a hearing on the Fire Code violations be held before the magistrate of the housing court.*fn3 Prior to a hearing, however, Sack appealed to the Superior

[ 28 Pa. Commw. Page 424]

Court. The City's subsequent petition to transfer the appeal to this Court was granted by the Superior Court on October 22, 1975.

Before us is the appeal of Sack from the order of Judge Farino quashing the writ of certiorari and a motion by the City to quash the appeal because it is taken from an interlocutory order. Assuming, without deciding, that Sack's appeal is not from an interlocutory order, we will dismiss the appeal because the writ of certiorari was improperly granted.

Initially, we note that the housing court, as one of the preserved magistrate's courts of the City of Pittsburgh,*fn4 is subject to the Pennsylvania Rules of Civil Procedure before Justices of the Peace. Specifically, Pa. R.C.P.J.P. Nos. 1009 et seq., dealing with certiorari, apply to the housing court magistrate and proceedings before him. Rule 1009 at all times pertinent to these proceedings provided:

A. Unless he was the plaintiff in the action before the justice of the peace, a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction over the parties or subject matter, improper venue or such gross irregularity of procedure as to make the judgment void. If the party aggrieved by the judgment was the plaintiff in the ...


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