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COMMONWEALTH PENNSYLVANIA v. LOUIS J. CARTER (07/25/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 25, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS J. CARTER, APPELLANT

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. Louis J. Carter, No. 4709 October Term, 1975.

Opinion by Judge DiSalle, Following Reargument.

Author: Disalle

[ 36 Pa. Commw. Page 574]

This appeal from an order of the Court of Common Pleas of Montgomery County striking the appeal

[ 36 Pa. Commw. Page 575]

    of Louis J. Carter (Appellant) from an adjudication of guilt upon the charge of falsely activating a home burglar alarm in violation of the Lower Merion Township Ordinance was originally heard by a panel of judges of this Court. Subsequent to the filing of the opinion in the case, we agreed to hear reargument before the Court en Banc. Since the facts were fully set forth in the opinion of the panel, and are reported at Commonwealth v. Carter, 36 Pa. Commonwealth Ct. 569, 377 A.2d 831 (1977), we will not reiterate them here. While we agree with the conclusion of the panel that the appeal in this case was civil in nature, upon reconsideration we now modify the order attached thereto.

It is well-settled that the law favors the right of appeal. The Pennsylvania Supreme Court in Womelsdorf v. Heifner, 104 Pa. 1, 4 (1883): "Where an appeal has been taken in good faith, and within the time prescribed by law, it is usual to allow a defect to be amended. In other words, to perfect the appeal." See Field's Appeal, 305 Pa. 125, 157 A. 262 (1931). Where the defect is the erroneous filing of the proceeding in the wrong court, this error may be corrected by certifying the case to the proper tribunal. Gaitley's Adoption, 303 Pa. 200, 202, 154 A. 368, 369 (1931); Romberger Appeal, 190 Pa. Superior Ct. 11, 16, 151 A.2d 805, 808 (1959).

Analogously, we note that Pa. R.A.P. 751 allows for the liberal transfer of cases which are improperly filed in our appellate courts. It is provided therein:

(a) General rule. If an appeal or other matter is erroneously taken to or brought in a court which does not have jurisdiction of the appeal or other matter, the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper court of this Commonwealth, where the appeal

[ 36 Pa. Commw. Page 576]

    or other matter shall be treated as if originally filed in that court on the date erroneously filed in the other court.

(b) Transfers by prothonotaries. An appeal or other matter may be transferred from a court to another court under this rule by order of court or by order of the prothonotary of any appellate court affected.

This Rule, and the judicial pronouncements relating to the certification to the proper tribunal of cases erroneously filed, indicate an intent to preserve a litigant's right of appeal if at all possible.*fn1

In the instant case, the appeal was timely filed, albeit in the wrong division of the court of common pleas. Consequently, the lower court should not have stricken Appellant's appeal. Instead, it should have, sua sponte, if necessary, transferred the appeal from the criminal to the civil docket. We therefore remand this case for that purpose.

Order

And Now, this 25th day of July, 1978, the order of this Court dated September 8, 1977, is hereby vacated, and the order of the Court of Common Pleas of Montgomery County, Criminal Division, in No. 4709, October Term, 1975, dated July 26, 1976, dismissing the appeal of Louis J. Carter, is reversed and the case is remanded to permit the court below to transfer the appeal to its civil docket.


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