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COMMONWEALTH PENNSYLVANIA v. RICHARD ALLEN KERN (01/08/82)

filed: January 8, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
RICHARD ALLEN KERN, APPELLANT



No. 656 PHILADELPHIA, 1980, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Lehigh County, No. 450-S of 1978.

COUNSEL

Richard J. Orloski, Allentown, for appellant.

Michael E. Moyer, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Hester, Cavanaugh and Van der Voort, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Hester

[ 294 Pa. Super. Page 152]

The appellant was convicted of numerous summary offenses before a District Magistrate. He filed a timely appeal to the Court of Common Pleas of Lehigh County. The appellant also filed a Motion to Dismiss the prosecution, alleging that the action had not been properly instituted pursuant to Pennsylvania Rule of Criminal Procedure 51, 42 Pa.C.S.A., in that the district magistrate had issued a citation

[ 294 Pa. Super. Page 153]

    to him rather than a summons. See Commonwealth v. Shelton, 260 Pa. Super. 82, 393 A.2d 1022 (1978). Said Motion to Dismiss was entertained by the lower court immediately prior to the scheduled hearing de novo, on March 21, 1979, at which time the court ordered that the charges against the appellant be dismissed because the Commonwealth could not establish that a summons had been issued. The Commonwealth filed a petition to rescind the Order of March 21, 1979, alleging that the parties had mistaken the facts and that a summons had been properly issued to appellant. On April 2, 1979, the lower court issued a Rule on the appellant to show cause why the Order should not be rescinded. Neither the Commonwealth nor the appellant ever appealed the Order of March 21, 1979.

On February 27, 1980, the lower court entered an Order granting the Commonwealth's Petition to Rescind the Order of March 21, 1979, on the basis of the testimony of the district magistrate to the effect that a summons had, in fact, been issued to the appellant on July 12, 1978. The lower court held that it had jurisdiction to review the Order of March 21, 1979 and that the defense of double jeopardy did not apply.

On March 17, 1980, the appellant filed a Notice of Appeal, and on April 2, 1980, the lower court stayed further proceedings below pending the disposition of this Appeal.

The appellant raises numerous issues on appeal, including the following: (1) was the Order of February 27, 1980, which dismissed the appellant's defense of double jeopardy, a final appealable Order; (2) was the Order of February 27, 1980 appealable as an interlocutory appeal as of right, pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(5), 42 Pa.C.S.A.; (3) did the lower court have jurisdiction to rescind its Order of March 21, 1979; (4) as a result of the rescission of the Order of March 21, 1979, was the appellant placed in double jeopardy.

For the reasons stated below, we affirm the lower court's Order of February 27, 1980, and ...


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