Appeal from the Order of the Court of Common Pleas of Northampton County in case of Commonwealth of Pennsylvania v. William and Mahala Sufrich. Violation of Borough of Freemansburg Ordinance No. 140, No. 228-1980.
Richard J. Orloski, Calnan & Orloski, for appellants.
Paul F. McHale, Jr., with him Frank Danyi, for appellee.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge Mencer did not participate in the decision in this case.
This is an appeal by John and Mahala Sufrich (appellants), from an order of the Court of Common Pleas of Northampton County changing the venue of a summary proceeding in which the appellants were the named defendants. The appellants assert, first, that the lower court's order was one changing venue in a criminal proceeding; and is thus immediately appealable as of right, even though interlocutory, pursuant
to Pa. R.A.P. 311(a)(3). The appellants also assert that the order was entered in violation of their due process rights.
In March 1980, a citation was filed charging the appellants with a summary offense, the violation of a municipal ordinance of the Borough of Freemansburg relative to the storage of junk automobiles. The citation bore the name of the Commonwealth of Pennsylvania as the prosecuting party, and was filed with the district justice for Northampton County's "2-3" magisterial district. The appellants pled "not guilty" to the charge laid in the citation, and demanded a trial.
On April 2, 1980, the President Judge of the Court of Common Pleas of Northampton County entered an order changing the venue of the mentioned summary proceeding, from the county's "2-3" magisterial district to the county's "1-2" magisterial district. It is acknowledged in the President Judge's memorandum opinion that the venue order was ex parte. That is, the order was entered without a hearing, and was based solely on the request of the police chief of the Borough of Freemansburg. According to the lower court's opinion, the police chief had advised the court, in effect, that the original district justice harbored a predisposition about the case that was prejudicial to the prosecution. It is undisputed that, prior to the entry of the court's order, the appellants had been given no notice of the police chief's request.
The first issue to be addressed is whether the venue order appealed from is the kind of interlocutory order that is appealable as of right under Pa. R.A.P. 311(a)(3). The appellee, captioned as being the Commonwealth of Pennsylvania, asserts that the order here in question is not within the intendment of Pa. R.A.P. 311(a)(3).
Pa. R.A.P. 311(a)(3) provides that, unless otherwise prescribed by general rule, an ...