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COMMONWEALTH PENNSYLVANIA v. FRANKLIN P. TYSON (03/18/81)

decided: March 18, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
FRANKLIN P. TYSON, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT V. WILLIAM J. O'HARA, WILLIAM J. O'HARA, INC. AND O'HARA SANITATION CO., INC., APPELLEES



Appeals from the Order of the Court of Common Pleas of Montgomery County in cases of Commonwealth of Pennsylvania v. Franklin P. Tyson, No. 1898-79; Commonwealth of Pennsylvania v. William J. O'Hara, No. 1850(1)-79; Commonwealth of Pennsylvania v. William J. O'Hara, Inc., No. 1850(2)-79; and Commonwealth of Pennsylvania v. O'Hara Sanitation Company, Inc., No. 1850(3)-79.

COUNSEL

Keith Welks, Assistant Attorney General, for appellant.

Joseph A. Ciccitto, Assistant Public Defender, for appellee, Franklin P. Tyson.

Daniel Quinlan, for appellees, William J. O'Hara, William J. O'Hara, Inc. and O'Hara Sanitation Company, Inc.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 57 Pa. Commw. Page 571]

The instant appeal presents two questions. First, does this Court have jurisdiction to entertain an appeal from an order of the trial court dismissing charges of criminal conspiracy*fn1 and violations of the Clean Streams Law?*fn2 Second, on the merits, did the trial court err in concluding that the appellees were denied a speedy trial pursuant to Pa. R. Crim. P., Rule 1100, which mandates that trial shall commence no later than 180 days from the date on which the complaint is filed? For the reasons stated hereinafter, we must answer both questions in the affirmative.

Criminal complaints were filed against the appellees on March 22, 1979. On September 13, 1979, a hearing was held before President Judge Richard S. Lowe of the Court of Common Pleas of Montgomery County. At this time, the Commonwealth indicated that it was prepared to commence trial. The appellees, however, interposed an objection at this point to the propriety of the representation of the Commonwealth by an Assistant Attorney General from the Department of Environmental Resources. Judge Lowe deferred his ruling on this objection until September 17, 1979.

On September 17, Judge Lowe ruled that the Assistant Attorney General would not be permitted to proceed with the prosecution unless a petition was

[ 57 Pa. Commw. Page 572]

    filed seeking permission to intervene and supersede the District Attorney.

On September 18, 1979, the 180th day under Rule 1100, the Commonwealth docketed a petition for extension of time for commencing trial. The following day, the appellees filed a petition to dismiss charges under Rule 1100. On September 28, 1979, the Commonwealth filed the required intervention petition.

Judge Lowe again conducted hearings on October 1 and 2, 1979. The Assistant Attorney General was granted permission to represent the Commonwealth. Additionally, Judge Lowe ruled that the requirements of Rule 1100 had been satisfied by the Commonwealth. Several other outstanding motions ...


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