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HANDWRITING EXEMPLAR NEIL CASALE (11/17/86)

decided: November 17, 1986.

IN RE HANDWRITING EXEMPLAR OF NEIL CASALE, APPELLANT


Appeal from Order of Superior Court of Pennsylvania at No. 2250 PHL 1983, Entered January 16, 1985, Quashing Judgment in the Court of Common Pleas of Lycoming County at No. 83-10,672 338 Pa. Superior Ct. 111, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Hutchinson

[ 512 Pa. Page 549]

OPINION OF THE COURT

By allowance, Neil Casale (appellant), appeals an order of Superior Court quashing, as interlocutory, his appeal from the order of the Court of Common Pleas of Lycoming County. In response to a motion filed " ex proprio motu ", i.e. "of his own accord", by the District

[ 512 Pa. Page 550]

Attorney of Lycoming County, Common Pleas issued a rule to show cause and then ordered appellant to appear at the office of the District Attorney for the purpose of submitting to a handwriting exemplar examination as requested by the Commonwealth. Because appellant raises a question of the court's jurisdiction to entertain such a motion, we granted leave to appeal. We now hold that, while Common Pleas has jurisdiction to determine controversies of the general class to which this case belongs, it lacks the power to act until that jurisdiction has been invoked in accordance with the pertinent rules of criminal procedure. See Pa.R.Crim.P. 101.

During the course of a police investigation into a burglary and robbery committed within the City of Williamsport in Lycoming County, a juvenile who participated in the crimes testified, both at his own hearing and at the trial of his brother, that Neil Casale, owner of the Taproom Tavern in Williamsport, had arranged for the burglary and robbery. The juvenile testified that appellant had written the address of the place to be entered on a piece of paper, which was subsequently discovered on those premises by the police. Based on this testimony, the police continued to investigate the robbery and the District Attorney for Lycoming County served a "Motion to Compel Handwriting Exemplar" on appellant in order to compare his handwriting with the handwriting found at the victim's residence.

Relying on the case of Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354 (1970), appellant argues, by analogy to subpoenas, that a prerequisite to the issuance of an order to produce a handwriting exemplar is a pre-existing matter or cause pending before the court. Polak addressed that issue under provisions of the Act of June 16, 1836, P.L. 784. That statute has since been repealed and replaced with sections 912 and 931 of the Judicial Code, which largely refer matters of criminal procedure to our constitutional rule-making power. Act of July 9, 1976, P.L. 586, No. 142, effective 60 days from the date of final enactment of the Act of April 28, 1978, P.L. 202, No. 53. Thus it appears appropriate for us to set forth the present requirements of

[ 512 Pa. Page 551]

    the Code and our rules of procedure concerning the questions of jurisdiction and judicial power which appellant has raised.

At the outset, we note that the Pennsylvania Constitution provides:

Section 5. There shall be one court of common pleas for each judicial district . . .

(b) having unlimited original jurisdiction in all cases except as may otherwise be provided by law.

Pa. Const. art. V, § 5(b). Though modified, this language is reiterated in the Judicial Code, supra:

(a) General rule. -- Except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503 (relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.

(b) Concurrent and exclusive jurisdiction. -- The jurisdiction of the courts of common pleas under this section shall be exclusive except with respect to actions and proceedings concurrent jurisdiction of which is by statute or by general rule adopted pursuant to section 503 vested in another court of this Commonwealth or in the district justices.

42 Pa.C.S. § 931.

Every court of common pleas shall have power to issue, under its judicial seal, every lawful writ and process to or to be served or enforced by system and related personnel as such courts have been heretofore authorized by law or usage to issue. Every judge of a court of common pleas shall ...


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