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COMMONWEALTH PENNSYLVANIA v. KERRY SCHIMELFENIG (03/06/87)

filed: March 6, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KERRY SCHIMELFENIG, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. THOMAS W. HALL, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JAMES MARTIN, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. DAVID EVANS, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. BRUCE T. BEVELACQUA, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. VERNON DALE HALL, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. WILLIAM HOBAN, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. DAVID V. KOHUT, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. DUANE ROBBINS, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. RICHARD WILSON, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. THOMAS MERRIGAN, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. EUGENE CURTIS, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JAMES W. ROONEY, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. PAUL BREZA, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. WILLIAM KIRK, APPELLEE



Appeal from the Order entered July 29, 1985, Court of Common Pleas, Lackawanna County, Criminal Division, at No. 84 Criminal 816. Appeal from the Order entered August 14, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 597. Appeal from the Order entered August 23, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 84 Criminal 1113. Appeal from the Order entered August 13, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 128. Appeal from the Order entered August 21, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 396. Appeal from the Order entered August 14, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 393. Appeal from the Order entered August 26, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 608. Appeal from the Order entered August 30, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 437. Appeal from the Order entered September 5, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 556. Appeal from the Order entered September 24, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 543. Appeal from the Order entered September 23, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 84 Criminal 772. Appeal from the Order entered September 23, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 434. Appeal from the Order entered October 2, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 84 Criminal 990. Appeal from the Order entered October 4, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 495. Appeal from the Order entered October 8, 1985, Court of Common Pleas, Lackawanna County, Criminal Division at No. 85 Criminal 588.

COUNSEL

Ernest D. Preate, District Attorney, Scranton, for Com., appellant.

Charles Winaconis, Scranton, for Thomas Hall, Vernon Hall, William Hoban, David V. Kohut, Paul Breza and William Kirk, appellees.

Stuart Suss, District Attorney, amicus curiae, West Chester.

Cirillo, President Judge, and Wickersham, Brosky, McEwen, Olszewski,*fn* Montemuro, Beck, Kelly and Johnson, JJ. Montemuro, J., files concurring opinion.

Author: Olszewski

[ 361 Pa. Super. Page 328]

The Commonwealth appeals from orders of the Court of Common Pleas of Lackawanna County dismissing fifteen complaints of driving under the influence of alcohol. In each case, the orders of dismissal were based upon two panel decisions of this Court, Commonwealth v. Press, 342 Pa. Super. 507, 493 A.2d 705 (1985), allocatur granted, 509 Pa. 534, 505 A.2d 251 (1986), and Commonwealth v. Revtai, 343 Pa. Super. 149, 494 A.2d 399 (1985), allocatur granted, 509 Pa. 496, 503 A.2d 932 (1986). Because each appeal calls into question the legitimacy of Press and Revtai, these fifteen cases were consolidated and certified for en banc review. Having reviewed the issues raised here and the rationale underlying the aforementioned cases, we expressly overrule Press and Revtai. Consequently, we reverse the orders before us and remand the cases for reinstatement of the complaints.

I.

Each appellee was arrested sometime between 1984 and 1985 for driving under the influence, 75 Pa. Cons.Stat.Ann.Sec. 3731 (Purdon 1977 & Supp.1986). Each appellee was also released by the arresting officer without having been arraigned, a procedure authorized by Rule 130(b) which provides:

(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or

[ 361 Pa. Super. Page 329]

    controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.

Pa.R.Crim.P. 130(b). Where a defendant is released under that provision, the arresting officer is required to file a criminal complaint as follows:

(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant's release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

Pa.R.Crim.P. 130(d). In each of the fifteen cases before us, the Commonwealth failed to comply with the five-day limitation of Rule 130(d); the complaints were filed anywhere between six and fifty-five days after the arrests. The Court of Common Pleas dismissed the complaints based upon Press and Revtai wherein we held that dismissal of charges was mandated for a violation of the five-day limitation. The Commonwealth now argues: (1) that appellees have waived the Rule 130(d) argument by failing to preserve it at the first instance and, alternatively, (2) that absent a showing of prejudice by appellees, dismissal of charges is an inappropriate remedy for a Rule 130(d) violation.

Before examining the merits of these claims, it is necessary to first review the relevant case law.

II.

This Court was first called upon to determine the effect of a Rule 130(d) violation in Commonwealth v. Press, supra, wherein we concluded that "(t)he word 'shall' contained in the first sentence of Pa.R.Crim.Pro. 130(d) is couched in mandatory terms and the only sanction available is the dismissal of the charges against the defendant." Press, 342 Pa. Super. at 510, 493 A.2d at 706. In making that determination, the Press court declined to apply the

[ 361 Pa. Super. Page 330]

    remedial rule contained in Chapter 100 of the Criminal Procedure Rules:

Rule 150. Defects in Form, Content, or Procedure -- Court Cases

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 150. Ordinarily, Rule 150 would apply to a violation of Rule 130(d) since Rule 130 is part of Chapter 100. The Press court concluded, however, that "(t)he failure to file a criminal complaint within the time limitation prescribed by Pa.R.Crim.Pro. 130(d) is not a procedural defect such as to be governed by Pa.R.Crim.Pro. 150. Therefore, appellee was not required to show actual prejudice before the information against her could be dismissed." Press, 342 Pa. Super. at 510, 493 A.2d at 706.

In Commonwealth v. Revtai, supra, this Court expounded on the conclusion reached in Press. In particular, the Revtai court determined that the specific time constraint of Rule 130(d) controlled and was an exception to the broad and general provision of Rule 150. Revtai, 343 Pa. Super. at 153, 494 A.2d at 401. Relying upon the legislative history of Rule 130, the Revtai court also concluded that the language of Rule 130(d) was mandatory and not merely directive:

The legislative history, preceding enactment of Rule 130, is most instructive. Rule 130 was originally adopted as Pa.R.Crim.P., Rule 118, 42 Pa.C.S. in 1964 and has been amended four times before achieving its present form in 1981. In its initial form, the rule provided only that a defendant was to be taken promptly before the proper issuing authority and an immediate preliminary arraignment held. The rule was amended to provide for a defendant's release in certain instances, pending the

[ 361 Pa. Super. Page 331]

    filing of a complaint. The amended rule did not impose a time limit for filing the complaint nor mandate sanctions for unnecessary delay in filing. Case law, interpreting the rule in this form, reviewed the standard of unnecessary delay in view of the ...


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