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BENJAMIN PAUL SHERRER v. WILLIAM H. LAMB. APPEAL BENJAMIN PAUL SHERRER (09/23/83)

filed: September 23, 1983.

BENJAMIN PAUL SHERRER, INDIVIDUALLY AND ON BEHALF OF A CLASS AND OF SUBCLASSES OF WHICH HE IS A MEMBER
v.
WILLIAM H. LAMB. APPEAL OF BENJAMIN PAUL SHERRER



NO. 1504 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Chester County, Civil, NO. 28 of 1978

COUNSEL

Joseph P. Green, Jr., Assistant Public Defender, West Chester, for appellant.

Lee Russlander, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Hester, Montemuro and Popovich, JJ.

Author: Montemuro

[ 319 Pa. Super. Page 292]

This is an appeal from an order dismissing appellant's class action complaint in equity, on the basis of preliminary objections as to jurisdiction.

Appellant Sherrer was arrested and incarcerated on January 26, 1978, on the basis of an outstanding bench warrant which had been issued on October 31, 1974. The warrant had been issued in connection with an alleged burglary that had occurred in July of 1969.

On or about February 16, 1978, appellant, through his attorney, the Public Defender of Chester County, filed a petition for writ of habeas corpus alleging that he was illegally confined on the charges contained in indictment No. 76 September Term, 1973. A hearing on the petition for writ of habeas corpus was scheduled for March 8, 1978. On March 7, 1978, appellant filed a class action complaint in equity, which is the subject of this action. The habeas corpus hearing was held before the Honorable Thomas Pitt of the Court of Common Pleas, Chester County. By order dated March 8, 1978, Judge Pitt dismissed the charges against appellant and ordered that all outstanding warrants be quashed.

On or about April 10, 1978, appellee District Attorney filed preliminary objections to the complaint in equity, contending that the action was moot, and under separate heading challenging the class action allegations. On May 3, 1978, appellant filed an answer to these preliminary objections. After briefs were submitted, on June 3, 1980, the Honorable Leonard Sugerman of the Court of Common Pleas, Chester County, issued an order sustaining the preliminary

[ 319 Pa. Super. Page 293]

    objections and dismissing the complaint. This appeal followed.

The process by which the court below reached its conclusion was as follows. As was stated earlier, appellee filed preliminary objections as to the class action allegations, and as to jurisdiction -- specifically alleging that appellant's action was moot. The lower court, while stating that it was "not directly treating the issue of class action status", proceeded to do so anyway and concluded that the appellant had failed to move for class action certification under Pa.R.C.P. 1707. Accordingly, the lower court treated the matter as an action by the appellant in his individual ...


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