Appeal from the Orders of the Court of Common Pleas of Philadelphia County (Trial Division - Civil) at No. 2622 of July Term, 1975. NO. 700 OCTOBER TERM, 1976.
Bernard Chanin, Philadelphia, with him Howard Gittis, Philadelphia, for appellants.
Gregory M. Harvey, Philadelphia, submitted a brief for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., concurs in the result. Price, J., dissents. Spaeth, J., did not participate in the consideration or decision of this case.
[ 247 Pa. Super. Page 14]
On July 21, 1976, by petition duly filed, eight electors of Philadelphia County sought the certification to the lower court for audit of the campaign accounts of Frank L. Rizzo, mayoralty candidate and eventual victor in the primary election of May 20, 1975. The authority so to do is granted by the "Election Code", Act of 1937, June 3, P.L. 1333, Art. XVI, § 1611, as amended by the Act of 1974, July 21, P.L. 587, No. 204, § 1, 25 P.S. § 3231(a):
[ 247 Pa. Super. Page 15]
Within thirty days after the last day for filing any expense account and affidavit required by this act any five electors of the State or of the political subdivision may present a petition to the Court of Common Pleas of the County in which is situated the office where such account has been filed, or with the Commonwealth Court where a Statewide office is concerned, praying for an audit. Thereupon the court shall direct the officer or board with whom such account has been filed to certify the same to the court for audit . . . .
The Act continues to detail the procedure for the audit.
On August 21, 1975, respondents, the various treasurers of the Rizzo campaign committees, filed a motion to dismiss the petition, in which motion following recitation of pertinent facts the movants alleged that the petitioners' points for audit are "either spurious, factually baseless or trivial in nature and fail to justify the request for relief . . .", and thereafter stated their reasons in a form which resembled an answer to the petition. Further movants-respondents averred that petitioners' "application may not be granted in the absence of a proper case for such relief".*fn1
Following argument by counsel on August 25, 1975, before the Honorable Edwin S. MALMED, Judge, the lower court in two Orders dated September 2, 1975, (1) denied respondents' motion to dismiss and (2) granted petitioners' request for certification. In the latter Order, the Philadelphia County Board of Elections was directed to certify to the court for audit certain named and all other, but not named, primary election expense accounts of the candidate. These Orders are now before us.*fn2
[ 247 Pa. Super. Page 16]
The threshold question is whether these Orders are appealable. We believe that they are because respondents' motion to dismiss encompasses a challenge to the subject matter jurisdiction of the lower court by questioning whether good cause for such an audit has been shown. The lower court was of the opinion that it possessed subject matter jurisdiction without good cause being shown. This is made evident by the fact that it denied the motion to dismiss and granted petitioners' prayer, thus deciding the merits of petitioners' allegations on petition and "answer" (i. e. motion to dismiss) alone. The Act of 1925, March 5, P.L. 23, § 1, 12 P.S. § 672, provides for an appeal where jurisdiction to make an order is challenged notwithstanding the fact that the order (or orders, as here,) are interlocutory. In pertinent part the Act provides: "Wherever in any proceeding at law . . . the question of jurisdiction over . . . the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings . . ., and the decision may be appealed . . . as in cases of final judgments". We note that this Act has been suspended in part by the Rules of Civil Procedure insofar as those Rules mandate practice and procedure to be followed when raising preliminary questions.*fn3 However, nowhere in the "Election Code", supra, or the Rules of Civil Procedure is it stated by statute that the practice and ...