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submitted: May 24, 1982.


No. 2530 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Elk County, Criminal Division, at No. 80 of 1980


Stuart Mark Bliwas, Assistant Attorney General, Harrisburg, for Commonwealth, appellant.

David Alvin Whitney, Ridgway, for appellee.

Brosky, Wieand and Beck, JJ.

Author: Brosky

[ 306 Pa. Super. Page 469]

The Commonwealth appeals here from an order issued in the Elk County Court of Common Pleas.*fn1 That order sustained an appeal from a conviction in Magistrate's

[ 306 Pa. Super. Page 470]

Court for purchasing a hunting license when hunting privileges were revoked. The issue presented here is the validity of a supersedeas of the license revocation. The court below held that the supersedeas was effective and thus enforcement of the revocation was barred. However, since the court did not have jurisdiction to issue the supersedeas, it was of no effect, revocation enforcement was permissible, and we reverse.

The Pennsylvania Game Commission contends, correctly, that exclusive jurisdiction over appeals from its orders lies with the Commonwealth Court.*fn2 Therefore, they argue, a supersedeas of the license revocation issued by a court other than the Commonwealth Court is void and the Commission is free to enforce the revocation.

This case has an involved procedural background. In April, 1979, the Pennsylvania Game Commission revoked the hunting and trapping privileges of appellee, Dale Roger Miller, for two years.*fn3 In May of that year, Miller appealed the revocation order to the Elk County Court of Common Pleas. On May 14, President Judge Greiner set a hearing date and granted a supersedeas of the revocation pendente lite. The Commonwealth filed a motion to dismiss on June 21, 1979, based on a lack of jurisdiction in the Court of Common Pleas. The following day, an order was issued by President Judge Greiner transferring the appeal to Commonwealth

[ 306 Pa. Super. Page 471]

Court.*fn4 On August 16, 1979, Miller purchased a hunting license.

On January 31, 1980, a citation was filed with Justice of the Peace Friedl of Elk County against Miller for violation of ยง 316(g) of the Game Law: purchasing a hunting license while his hunting privileges were revoked. At a hearing on May 8, 1980, Miller was found guilty and fined $40 plus $16 costs.

Miller appealed this conviction to the Court of Common Pleas. On October 9, 1980, President Judge Greiner entered an order sustaining the appeal on the basis that the supersedeas he had granted on May 14, 1979 was in effect at the time of the violation on August 16. The Commonwealth's appeal from that order is now before us.

Two incontrovertible statements of law combine to determine the decision in this case. First, the Court of Common Pleas had no jurisdiction to hear the appeal of the license revocation. Second, any act taken by a court without proper jurisdiction is null and void.

When a Judge exercises a power not conferred upon him by law, his act is more than a mere irregularity, which can be waived by Defendant; it is a nullity.

Moschzisker, Ch.J., Commonwealth v. Hall, 291 Pa. 341 at 354, 140 A. 626 at 631 (1927).

The supersedeas issued by President Judge Greiner was, therefore, without legal force; it could not halt the Game Commission or the Justice of the Peace from enforcing the revocation; nor could it protect Miller in his unauthorized purchase of a new license.*fn5

We are not unmindful of the potential for a certain unfairness in allowing a person to be punished by one court

[ 306 Pa. Super. Page 472]

    of the Commonwealth for acting within bounds made permissible by another court of this Commonwealth. Here, Miller could have believed that the supersedeas made it lawful for him to purchase the license. Indeed, a Common Pleas President Judge thought that the supersedeas was in force on August 16 and that the purchase of the license was consequently lawful. Nonetheless, other considerations must prevail.

An important principle of our constitutional form of government is that organs of the government must not arrogate to themselves powers which have not been lawfully assigned to them. The legitimacy of governmental acts must be preserved; and this is advanced by treating as void all illegitimate governmental acts. A proper functioning of this system in the courts mandates the strict disapproval of judicial acts committed outside their jurisdictional sphere. They are to be given no legal effect.

We reverse and remand for trial de novo in the Court of Common Pleas.

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