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decided: October 5, 1978.


No. 157 January Term, 1977, Appeal from Order of the Superior Court of Pennsylvania, filed at No. 734 October Term, 1975, affirming the Order of the Court of Common Pleas, Criminal Division, of Luzerne County at No. 9390 of 1973, dismissing Writ of Certiorari.


Silverblatt & Townend, James F. Geddes, Jr., Wilkes-Barre, for appellant.

Patrick J. Toole, Jr., Dist. Atty., Joseph J. Van Jura, Asst. Dist. Atty., Wilkes-Barre, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.

Author: Pomeroy

[ 485 Pa. Page 249]


The appellant, Frank J. Wadzinski, was in 1973 an unsuccessful candidate for mayor of the City of Nanticoke. After the election, Wadzinski was charged in a criminal complaint with violating section 1614 of the Pennsylvania Election Code*fn1 in that during the 48 hour period before election day

[ 485 Pa. Page 250]

    appellant made a paid political broadcast referring to his opponent without giving prior notice of the broadcast as required by the Code. He was convicted of this offense and fined $25 by a district magistrate. Pursuant to the Minor Judiciary Court Appeals Act,*fn2 appellant filed a petition for a writ of certiorari with the Court of Common Pleas of Luzerne County challenging the constitutionality of section 1614 of the Election Code, supra note 1, and claiming certain irregularities in the magistrate's proceedings. The court of common pleas dismissed the writ, holding in part that the constitutionality of a statute is not a cognizable issue upon appeal by way of writ of certiorari.*fn3 The Superior Court

[ 485 Pa. Page 251]

    affirmed,*fn4 and we allowed an appeal to this Court.

The narrow issue for decision concerns the proper scope of review by a court of common pleas upon appeal to it by a writ of certiorari from a minor court. Although the provision under which appellant petitioned the lower court has now been suspended, see note 2 supra, and this problem is unlikely to recur, it nevertheless must be answered in this case, for appellant asserts that his constitutional rights have been violated. We hold that the common pleas court did have the power to entertain the merits of appellant's claim upon a grant of certiorari.*fn5

As both courts below concluded, the proper procedure at the time appellant filed his petition with the court of common pleas in 1973 was to file an appeal under section 3 of the Minor Judiciary Appeals Act, supra note 2, 42 P.S. § 3003, which provided for a general appeal and a hearing de novo by a court of common pleas.*fn6 Instead, appellant filed a

[ 485 Pa. Page 252]

    petition for a writ of certiorari under section 6 of that Act, 42 P.S. § 3006. The question is whether, having followed the wrong procedure, appellant's case is fatally flawed.

Historically, the writ of certiorari was merely a remedy to bring before a court of record asserted procedural defects in the proceedings before a justice of the peace or magistrate; the writ afforded but a limited scope of review, not embracing substantive errors. See Commonwealth v. Detsch, 74 Pa.D. & C.2d 555 (Warren County, 1975). Thus certiorari jurisdiction of the courts of common pleas, as those courts existed prior to the adoption of a new judiciary article, Article V, of the Constitution of Pennsylvania in 1968, see note 9 infra, extended no further than the power to review the regularity of the proceedings before a magistrate or justice of the peace. An appeal on the merits from a summary conviction before a minor court could be taken only to the court of quarter sessions where the case would be heard de novo, but conversely, that court was without power to review any matter within the scope of a writ of certiorari, i. e., the technical regularity of the proceedings below. Commonwealth v. Meckes, 144 Pa. Super. 381, 19 A.2d 555 (1941); Commonwealth v. Scott-Powell Dairies, 128 Pa. Super. 598, 194 A. 684 (1937); Commonwealth v. Hunter, 107 Pa. Super. 513, 164 A. 113 (1933).*fn7 The practice was succinctly

[ 485 Pa. Page 253]

    described by the Superior Court in Commonwealth v. Benson, 94 Pa. Super. 10 (1928),*fn8 as follows:

"The practice relating to (1) appeals from summary convictions, and (2) their review on certiorari is well settled. If it is desired to attack only the regularity of the proceedings before the justice or alderman, this is done by a writ of certiorari to the Court of Common Pleas, and the assignment of the alleged errors relied on; in which event the judgment of the inferior magistrate is sustained or set aside, depending on whether the proceedings objected to are found to be legal and regular or not, and whether they sustain the conviction or not. But if an appeal is asked for, this is directed to the Court of Quarter Sessions and, if allowed, the case is heard de novo before a judge of that court." 94 Pa. Super. at 13-14.

The practice above described developed under the judicial framework as it existed in this Commonwealth prior to the adoption of the present judiciary article, Article V, of the Pennsylvania Constitution in 1968. Since January 1,

[ 485 Pa. Page 2541969]

there has been only one court of original jurisdiction which is a court of record, viz., the court of common pleas as it was reconstituted by the new Article V.*fn9 There is no longer a court of quarter sessions. Thus whether a party aggrieved by a minor court's summary conviction wishes to proceed either by petitioning for certiorari or by taking a general appeal, he seeks his remedy in the court of common pleas; jurisdictional restraints upon the former common pleas court under the old system no longer exist. The court of common pleas, as reconstituted, possesses the jurisdictions of the former courts of common pleas, courts of quarter sessions, courts of oyer and terminer, orphans' courts, and juvenile courts. One of the purposes of the unified court is, of course, to simplify procedure and remove archaisms from the judicial system. A case may not be dismissed because brought in the wrong court; if the matter is justiciable, there is jurisdiction in the court of common pleas to hear it, and in a multi-division court the remedy for bringing the

[ 485 Pa. Page 255]

    case in the wrong division is not a dismissal, but a transfer of the matter to the correct division.*fn10

In short, in light of the changes in the court structure and the practice and procedure in Pennsylvania in recent years, a procedural mistake such as appellant made here should no longer prove fatal. There is today no justifiable reason to send appellant from pillar to post without a hearing on his basic claim of unconstitutionality of the statute under which he was prosecuted.

The common pleas court below, while recognizing the procedural flaw in the defendant's appeal, nevertheless, as an alternative ground of decision, entertained Wadzinski's constitutional claims as if on general appeal. Apparently believing that this consideration of appellant's substantive claim was ultra vires the court of common pleas, the Superior Court did not address the issue. We must, therefore, remand this case to the Superior Court for decision on the constitutional question.

[ 485 Pa. Page 256]

Order of the Superior Court is vacated and the case remanded to that court for further proceedings consistent with this opinion.

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