John J. Waldron, Allentown, for petitioner.
Howland W. Abramson, Philadelphia, for C.P. Ct. of Lehigh County.
William Platt, Dist. Atty. and William Ford, Asst. Dist. Atty.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, former J., did not participate in the decision of this case. Larsen, J., files a concurring opinion. Zappala, J., joins the opinion announcing the judgment of the Court and files a concurring opinion. McDermott, J., files a dissenting opinion in which Papadakos, J., joins.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Petitioner, Harry Liciaga, filed in this Court a petition for writ of prohibition challenging the appropriateness of the Court of Common Pleas of Lehigh County's grant of a writ of certiorari. The issue presented is whether, after all
charges at a preliminary hearing have been dismissed, a writ of certiorari is available to test the legality of the district justice's determination that no prima facie case exists. Petitioner argues that the Commonwealth must rearrest an individual after the dismissal of charges at a preliminary hearing, and that a writ of certiorari is an improper avenue to reinstitute charges. The issue is whether this type of ruling is of such a nature as to require a right of review by a higher tribunal. Respondent, Court of Common Pleas of Lehigh County, asserts that a writ of certiorari is available to test the propriety of a district justice's determination that a prosecution fails for lack of a prima facie case. We conclude, for the reasons hereinafter set forth, that the nature of such a ruling does not possess the finality as would require review.
The pertinent facts and procedural history are as follows. On July 7, 1987, George Bastian was found dead at his home in Allentown, Pennsylvania. On July 8, 1987, John Johnson was arrested and charged with being involved in the murder of Mr. Bastian. On July 13, 1987, petitioner was arrested. In addition to the charge of murder, petitioner was also charged with burglary, theft, receiving stolen property and criminal conspiracy. On August 7, 1987, a preliminary hearing was held in Lehigh County before a district justice. After the presentation of the testimony, the district justice ruled that the Commonwealth had failed to establish a prima facie case as to any of the charges against petitioner. Consequently, the charges were dismissed. On August 28, 1987, the Commonwealth presented in the Court of Common Pleas of Lehigh County a petition for writ of certiorari to the district justice, or, in the alternative, requested that a Lehigh County Court of Common Pleas judge sit as a committing magistrate for preliminary hearing purposes. On January 27, 1988, an en banc panel of the Court of Common Pleas of Lehigh County granted the Commonwealth's petition for writ of certiorari and, upon review of the notes of testimony of the preliminary hearing, found that a prima facie case was established as to all charges against petitioner.
On April 27, 1988, petitioner filed a writ of prohibition in this Court challenging the right of the court of common pleas to require him to stand trial on these charges.
The purpose of writ of prohibition is to prevent an inferior judicial tribunal from assuming jurisdiction it does not possess or from taking some action which constitutes an abuse of its jurisdiction. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). The issuance of this type of writ is discretionary and is to be used only with great caution and in cases of extreme necessity. Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948). A jurisdictional complaint in this context must be distinguished from an allegation of an abuse of discretion. In the latter situation a court has the power to act but exercises that power in an inappropriate manner. Where the challenge is not to the tribunal's jurisdiction, a predicate is not established for entertaining a writ of prohibition. Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978); Appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979); In re Reyes, 476 Pa. 59, 381 A.2d 865 (1977); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), aff'd per curiam, 466 Pa. 187, 352 A.2d 11, cert. denied and appeal dismissed, 423 U.S. 1083, 96 S.Ct. 873, 47 L.Ed.2d 94 (1976); McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). The instant petition challenges the power of the court of common pleas to issue a writ of certiorari in response to an allegedly erroneous determination by a district justice that the Commonwealth failed to establish a prima facie case. For the reasons that follow, we conclude that the common pleas court does have the power to issue writs of certiorari to district justices, but that the exercise of that power was inappropriate under the instant facts.