No. 158 Pittsburgh, 1981, No. 619 Pittsburgh, 1981, Appeals from the Orders of January 6, 1981 in the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at Nos. SA-1299 and SA-1300 of 1980.
Thomas Orson Vreeland, Washington, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Hester, Johnson and Popovich, JJ. Johnson, J., files a dissenting opinion.
[ 311 Pa. Super. Page 65]
This is a consolidated appeal from separate orders of court which dismissed the appeals filed by appellants, Keith and Kevin Krut, from their convictions before a district magistrate. For the reasons herein stated, the matter must be remanded for proceedings not inconsistent with this opinion.
Appellant, Keith Krut, was convicted of disorderly conduct,*fn1 a summary offense, and sentenced to pay a fine and costs of $126.00. Appellant, Kevin Krut, was convicted of multiple offenses and was ordered to pay fines and costs totaling $310.00.*fn2 Both of the appellants timely appealed
[ 311 Pa. Super. Page 66]
their convictions to the Court of Common Pleas of Allegheny County. The trial court dismissed the appeals for the reason that the appellants had failed to appear in court on the scheduled trial date. The instant consolidated appeal then followed.*fn3
According to appellants, defense counsel requested a continuance on January 5, 1981, the day before the hearing was scheduled. At that time, the trial court advised counsel of its policy to deny continuances in statutory appeals. Appellants also contend that an explanation was given to the trial court for their absence; that is, each appellant "was out of the country pursuant to some unavoidable business." Brief for Appellants at 4. We need not reach the merits of appellants' argument because notwithstanding the reason for appellants' absence, the trial court should have determined the facts of the case and rendered a verdict.
The instant appeal is controlled by a recent decision of this Court, Commonwealth v. Kyle, 307 Pa. Super. 446, 453 A.2d 668 (1982). In Kyle, this Court remanded the matter for a trial de novo because the trial court improperly dismissed Kyle's appeal from a summary conviction when the appellant had failed to appear at the scheduled trial date. Our Court said the following:
"The action of the lower court [in] dismissing the appeal was improper. "This court has repeatedly held that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either 'guilty' or 'not guilty.'" Commonwealth ...