Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



decided: March 18, 1981.


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.


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 were also ruled upon at this time. Written orders followed these decisions.

The appellees immediately requested that Judge Lowe approve their appeal to the Pennsylvania Supreme Court from his interlocutory decisions on the intervention and Rule 1100 questions. Such approval was granted. The Supreme Court, however, denied the appellees' petition for permission to appeal from these interlocutory orders. Judge Lowe then ordered that trial on the original charges commence within 120 days of the Supreme Court order, entered November 30, 1979.

On March 10, 1980, the case was called to trial before Judge Vincent A. Cirillo also of the Court of Common Pleas of Montgomery County. Appellees again filed motions to dismiss under Rule 1100. On March 11, 1980, following argument, Judge Cirillo issued an order granting these motions and dismissing all charges. This appeal followed.

Appellees contend that jurisdiction over this appeal lies with the Superior Court, not this Court. The pertinent part of the jurisdictional statute in question provides that:

[ 57 Pa. Commw. Page 573]

[T]he Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following cases:

(2) Governmental and Commonwealth regulatory criminal cases. -- All criminal actions or proceedings for the violation of any:

(ii) Regulatory statute administered by any Commonwealth agency. . . . The term 'regulatory statute' as used in this subparagraph does not include any provision of Title 18 (relating to crimes and offenses).

Section 762(a)(2)(ii) of the Judicial Code, 42 Pa. C.S. § 762(a)(2)(ii).

The appellees are charged with violating Sections 301 and 307 of the Act and with conspiracy to violate the Act under Section 903 of the Crimes Code. Appellees first argue that because they are being criminally prosecuted under the Act, this appeal from a dismissal of that prosecution is not within our appellate jurisdiction. It is clear, however, that Section 762(a)(2) of the Judicial Code vests appellate jurisdiction in this Court over certain criminal matters. We conclude, after reviewing the entire Act and its purposes,*fn3 that the Act is a "regulatory statute" within the meaning of Section 762(a)(2)(ii) of the Judicial Code.*fn4 The fact that the Act provides for the imposition of

[ 57 Pa. Commw. Page 574]

    criminal penalties, Section 602 of the Act, 35 P.S. § 691.602, does not change its overall character as a statute regulating certain conduct within the state. In addition, the Department of Environmental Resources is a Commonwealth agency within the definition of Section 762(a)(2)(ii) of the Judicial Code and is empowered to administer the Act. Section 1901-A(20) of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, added by Section 20 of the Act of December 3, 1970, P.L. 834, 71 P.S. § 510-1(20); Section 5 of the Act, 35 P.S. § 691.5. We, therefore, have appellate jurisdiction over a criminal action or proceeding charging a violation of the Act.*fn5

Secondly, appellees argue that because the charge of conspiracy is a Title 18 charge, the last sentence in Section 762(a)(2)(ii) of the Judicial Code operates to divest our Court of jurisdiction over this appeal. While conspiracy is clearly a crime under Title 18, we cannot ignore the fact that it is a crime based on the existence of another separate attempted, planned or completed crime. See Section 903 of the Crimes Code. We believe, under the facts of this case, where appellees have been charged with both a violation of the Act and conspiracy to violate the Act and where this

[ 57 Pa. Commw. Page 575]

Court has appellate jurisdiction of the substantive Act violation, we should also have jurisdiction over the closely related conspiracy charge. In doing so, we note that the interests of judicial economy and the expeditious administration of justice are furthered when two charges arising out of the same facts can be appealed to the same court. The alternative of appealing the Act violation to this Court and the conspiracy charge to the Superior Court would require repetitious appellate presentation and could lead to conflicting adjudications. Indeed, if the two charges had been split up on appeal between our Court and the Superior Court, it is possible that the Superior Court would have transferred its half of the case to this Court within its power under Section 705 of the Judicial Code, 42 Pa. C.S. § 705, and Pa. R.A.P. 752(a), allowing such a transfer where the same or related questions of law and fact are involved.

The broad question addressed by Judge Cirillo in March 1980 and by this Court now is whether, after the filing of criminal complaints on March 22, 1979, 180 days passed without either the commencement of trial or a valid extension of the time for same.

We first note the rule that absent some evidence it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case, has been applied to Pa. R. Crim. P., Rule 1100. Commonwealth v. Eck, Pa. Superior Ct. , 416 A.2d 520 (1979), Commonwealth v. Griffin, 257 Pa. Superior Ct. 153, 390 A.2d 758 (1978). We decline to accept the Commonwealth's position that Judge Cirillo's March 11, 1980 order was a nullity. Though he did not have new testimony before him, the judge did then have an accumulation of more than five months of events to consider.

September 18, 1979 was the 180th day after the filing of the criminal complaints. We find no impropriety

[ 57 Pa. Commw. Page 576]

    in the prosecution filing on September 17th its petition for extension; Judge Lowe did not rule until that day that he considered the defendants' objection to an assistant attorney general prosecuting the case to be well founded and supported by Commonwealth v. Schab, 477 Pa. 55, 383 A.2d 819 (1978). We further believe that the elements for a valid Rule 1100(c) extension were present. The "due diligence" of the prosecution is amply supported by the record -- the transcripts of every hearing establish the prosecution's preparedness for and willingness to instantly proceed to trial and present evidence. Nevertheless, a series of pretrial hearings on discovery and the appointment of experts had to be conducted. Finally, once Judge Lowe made his September 17th ruling, the trial could not commence: the prosecution needed time to prepare, submit, argue and ultimately obtain a resolution of its petition for the assistant attorney general to participate. In light of the eleventh hour commotion and of the trial court's calendar (the next trial week was October 1, 1979), it was acceptable for the lower court to rule on October 1st on the petition for extension. See Commonwealth v. Lane, 245 Pa. Superior Ct. 146, 369 A.2d 335 (1976), Commonwealth v. Ray, 240 Pa. Superior Ct. 33, 360 A.2d 925 (1976).

We cannot agree that Judge Lowe deferred beyond October 1, 1979 action on the petition for extension. The judge did act on the petition at the October 1st hearing. After hearing a colloquy on the merits of the petition for extension and the defendants' motion to dismiss, the judge commented that his court "has done its best to conform to the philosophy and intent of Rule 1100 by scheduling trial today, Monday, October 1st, 1979," immediately ruled "that Rule 1100 has been satisfied" and denied the motion to dismiss.*fn6

[ 57 Pa. Commw. Page 577]

The court and the parties next spent two days addressing the prosecution's petition to consolidate and the defendants' omnibus pretrial motions. The rules to show cause why the petition to consolidate and the omnibus bills should not be granted were marked returnable at the time of trial. We therefore conclude that the court had plainly proceeded "to the hearing of any motions which had been reserved for the time of trial"*fn7 and thereby complied with Rule 1100.*fn8

[ 57 Pa. Commw. Page 578]

Accordingly, we will enter the following


And Now, March 18, 1981, the order of the Court of Common Pleas of Montgomery County, docketed to Criminal Division No. 1850-79 and 1898-79, dated March 11, 1980, sustaining motions to dismiss, is reversed. The cases are remanded to the court of common pleas for speedy trial forthwith.


Reversed and remanded.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.