Philadelphia v. Dortort Brief for Appellee

    IN THE

Superior Court of Pennsylvania
Philadelphia District

October Term, 1964 No. 572

City of Philadelphia 
(Amended by the Court below from 
Commonwealth of Pennsylvania)

v.
Jerome Dortort, Jack  Jiles, F rederick Feldman , 
Joseph Harvey, F rank  Delano H aley , Geoffrey 
Lobenstine, W alter L ively, Margaret A n n  N eiss- 
ner, F lorence Johnson, Susan C. Mayer, L illian 
M irm ak ,

Appellants

BRIEF FOR APPELLEE

Appeal from Dismissal of Exceptions to Magistrate’s 
Return by C.P. Court No. 2 of Philadelphia 
County, Charles L. Guerin, Judge, at No. 4604, 
December Term, 1963.

W illiam  G. Klen k , II 
Assistant City Solicitor

Matthew  W. Bullock, Jr. 
Deputy City Solicitor

E dward G. Bauer, Jr.
City Solicitor
Attorneys for the Appellee

703 City Hall Annex 
Philadelphia, Pa. 19107
THE LEGAL INTELLIGENCER, 10 S. 37TH ST.. PHILA. 19104



INDEX

Page

Counter-Statement of Questions Involved ............  1
Counter-History of the C a se .....................................  2

Argum ent....................................................................... 5
I. The Superior Court Is Without Juris­

diction to Entertain an Appeal from an 
Order of the Court of Common Pleas Sus­
taining a Conviction by a Magistrate 
for Violation of a Municipal Ordinance . 5

II. Assuming Arguendo That This Court 
Has Jurisdiction to Hear This Appeal,
It May Be Heard Only on Narrow Cer­
tiorari ...........................................................  10

III. Regardless of How the Action Is Initi­
ated, an Action for Violation of a Munici­
pal Ordinance Is a Civil Proceeding . . .  12

IV. The Magistrate’s Court Had Jurisdic­
tion over the Persons of the Appellants . 13
a. Two separate acts of legislature pro­

vide for the institution of process for 
the violation of a Municipal Ordin­
ance of cities of the First Class . . .  13

b. Appellants were properly before the
Magistrate’s Court for violation Of 
Sec. 10-501(2) (h) of The Philadel­
phia Code ............................................... 16
1. The action was properly instituted 

pursuant to the Act of May 3,1876,
P. L. 99, §1, 53 P.S. §13349 . . . .  16

l



INDEX— Continued

Page
2. The action was properly instituted

pursuant to the Act of March 15, 
1858, P. L. 114, §1, 53 P.S. 
§17082 ............................................  18

3. Appellants have waived all rights
to object to alleged defects of serv­
ice of process by appearing with­
out objection and proceeding to 
trial without ob jection .................  18

V. Enforcement of Section 10-501(2) (h) 
of the Philadelphia Code Is Within the 
Jurisdiction of the Magistrates’ Courts 
When the Penalty Sought and Imposed
Is One Hundred Dollars or L e s s ........  20

VI. The Magistrate’s Return Is Regular 
on Its Face and Fulfills the Require­
ments of the Act of March 20, 1810,
P. L. 208, §22, 42 P.S. §497 .................  24

VII. The Plea of Autrefois Acquit Is Inap­
plicable to the Case at Bar .................  28

Conclusion ......................................................... 32

n



TABLE OF CITATIONS

Cases: Page
Appeal of Glidding, 81* Pa. Superior Ct. 72

(1872) ...............................................................  24
Baldali v. Hartman, 410 Pa. 652 (1963) . . .  10, 24
Battles v. Nesbit, 149 Pa. Superior Ct. 134 (1943) 25
Bedford v. Kelly, 61 Pa. 491 (1869)............... 24, 26
Bell Appeal, 396 Pa. 592 (1959) ....................... 7, 9
Chester v. McGeoghegan, 6 Pa. Superior Ct. 358

(1898) ............................................................... 22
Collins v. Collins, 37 Pa. 387 (1 8 6 0 )................. 21, 22
Colwyn Borough v. Tarbotton, 1 Pa. Superior Ct.

179 (1896) ....................................................... 19
Commonwealth v. Ashenfelder, 413 Pa. 517 (1964)

12, 14, 18, 21, 24, 28
Commonwealth v. Bishop, 182 Pa. Superior Ct.

151 (1956) ..........................................  29, 30, 31
Commonwealth v. Comber, 374 Pa. 570 (1953) 29, 31
Commonwealth v. Evans, 45 Pa. Superior Ct. 174

(1911) ...............................................................  30
Commonwealth v. Greene, 410 Pa. I l l  (1963) . . .  28
Commonwealth v. Hanzlik, 191 Pa. Superior Ct.

460 (1960) Certified to Supreme Court 400 
Pa. 134 (1960) .................................... 5, 6, 7, 9

Commonwealth v. Hindin, 88 D. & C. 292 (1944) . 16
Commonwealth v. Rubin, 82 Pa. Superior Ct. 315

(1923) ...............................................................  13

in



TABLE OF CITATIONS— Continued

Cases: Page
Edwards v. South Carolina, 372 U. S. 229, 83 S. Ct.

680 (1963) .....................................................  28
Field Enterprises Ed. v. Golatt, 199 Pa. Superior 

Ct. 422 (1962) ............................................  21, 22
Lynch v. Hickey, 152 Pa. Superior Ct. 129 (1943)

24, 25
McGinnis v. Vernon, 67 Pa. 149 (1870) ............... 24
Mineo v. Eureka Security and Fire Marine Ins.

Co., 182 Pa. Superior Ct. 75 (1956) .......  31
Pleasant Hills Boro Council v. Carroll, 182 Pa. 

Superior Ct. 102 (1 9 5 6 )................................ 13
Reid v. Wood, 102 Pa. 312 (1883) .......................  13
Shoup v. Mannino, 188 Pa. Superior Ct. 457

(1959) ...............................................................  31
Sweitzer v. Emert, 55 Pa. Superior Ct. 176 (1913)

18, 19
United States v. Glidden Co., 78 F. 2d 639 (6th 

Cir. 1935) ......................................................... 31

United States v. Kessler, 213 F. 2d 53 (3rd Cir. 
1954) .................................................................  13

York v. Baynes, 188 Pa. Superior Ct. 581 (1959)
12, 14

Weidenhamer v. Bertie, 103 Pa. 448 (1883) . .  18, 19

Constitutions:

Constitution of Pennsylvania, Article V, § 1 2 ___  21

IV



TABLE OF CITATIONS— Continued

Statutes: Page
Act of March 20, 1810, P. L. 208, §22, 42 P.S.

§957 ..................................................  5, 10, 24, 26
Act of March 15, 1858, P. L. 114, §1, 53 P.S. 

§17082 ..................................................  15, 18, 23
Act of May 3, 1876, P. L. 99, §1, 53 P.S. §13349..

15, 16, 17, 23
Act. of June 24, 1895, P. L. 212, §7 (c ) , 17 P.S.

§184 ...................................................................  8
Act of June 24, 1939, P. L. 872, §406, 18 P.S.

§4406 ............................................................. 13, 28
Act of April 21, 1949, P.L. 665, Art. II, §17, 53 

P.S. §13131 ....................................................... 20
Act of September 18, 1961, P. L. 1464, 19 P.S. 

§12.1 ...............................................................  13-14
Act of August 14, 1963, P. L. 401, §1 (c ) , 17 

P.S. § 1 8 4 ...........................................................  8

Charters:
Philadelphia Home Rule Charter, §1 -100 ........... 20

Ordinances:

Philadelphia Code of General Ordinances—
§10-501(2) (h) ................................ 2 et seq.
§10-502(1) ................................................  4

Miscellaneous:

Black’s Law Dictionary, 4th Ed., 1951, p. 236 . .  29

v



Counter-Statement of Questions Involved 1

COUNTER-STATEMENT OF QUESTIONS 
INVOLVED

1. Does the Superior Court have jurisdiction to 
entertain an appeal from a decision of a court of com­
mon pleas discharging a petition of certiorari to a 
magistrate’s court?

(Not decided by the Court below.)

2. Assuming arguendo that the Superior Court 
has jurisdiction over such an appeal is the scope of 
review limited to narrow certiorari?

(Not decided by the Court below.)

3. Does a magistrate of Philadelphia County have 
jurisdiction to hear an action for the violation of a 
municipal ordinance which provides for a penalty in 
excess of one hundred dollars, where the City specifi­
cally limits its claim for penalty to one hundred dollars 
or less?

(Answered in the affirmative by the Court below.)

4. Does the defense of autrefois acquit bar an 
action for violation of a municipal ordinance where 
the elements of the prior criminal prosecutions are 
different from the elements necessary to make out a 
violation of the municipal ordinance?

(Answered in the negative by the Court below.)



COUNTER-HISTORY OF THE CASE

On September 20, 1963, the appellants herein were 
arrested in Room 210, City Hall, Philadelphia, by police 
officers of the City of Philadelphia. They were forth­
with taken to the Sixth District Police Station and 
charged with disorderly conduct and breach of the 
peace.

The appellants came before Magistrate William 
Hagan on September 21, 1963, at which time testi­
mony was taken. The Magistrate continued the hear­
ing until September 30, 1963, so that other witnesses 
might be produced. The appellants were summarily 
convicted of disorderly conduct from which an appeal 
was taken on October 4, 1963. There was no disposition 
of the charge of breach of the peace. On January 24, 
1964, Judge Charles L. Guerin of Common Pleas Court 
No. 2 of Philadelphia County, sitting in Quarter Ses­
sions Court found all the defendants not guilty of dis­
orderly conduct.

On January 31, 1964, pursuant to a complaint 
filed by Deputy Police Commissioner Prank Rizzo 
charging breach of the peace and violation of Section 
10-501 (2) (h) of The Philadelphia Code of Ordinances, 
summonses were issued by Magistrate Hagan to each 
of the appellants and served thereon. Section 10-501- 
(2) (h) provides as follows:

“  (2) No person shall:
*  *  *  *  *

(h) use any City facility or enter into any 
City property without authority.”

Pursuant to said summonses, appellants appeared 
before Magistrate Hagan on February 4, 1964, at 2:00 
o’clock P. M. At that time, counsel for appellants ad­
vised the Magistrate that a complaint had been filed

2 Counter-History of the Case



Counter-History of the Case 3

in the District Court of the United States for the East­
ern District of Pennsylvania at the behest of the said 
appellants against the District Attorney of Philadel­
phia County, the City Solicitor of Philadelphia, Magis­
trate William Hagan, the Commissioner of Police of 
Philadelphia and Frank Rizzo, Deputy Commissioner 
and complainant herein, seeking to enjoin the said 
persons from “ proceeding with” the hearing set for 
February 4, 1964. At the same time, counsel for appel­
lants herein threatened Magistrate Hagan with the 
institution of contempt proceedings against him in the 
event that he proceeded with the hearings set for that 
date. The said Magistrate thereupon, “ turned over” 
the cases to the United States District Court and con­
tinued the hearings.

Thereafter, the appellants herein filed a petition 
with the United States District Court for removal of 
the instant matters pending before Magistrate Hagan 
to the said District Court. On motion of the Common­
wealth of Pennsylvania, and after hearing, the Peti­
tion for Removal was dismissed (February 6, 1964, 
Criminal No. 21631), and the matter was remanded to 
the State Court for further proceedings (Hon. John 
W. Lord, Jr.). An appeal to the Circuit Court of Ap­
peals from this order was dismissed (April 10, 1964, 
No. 14,772).

Upon remand, the cases were thereupon relisted 
by Magistrate Hagan for hearing in Central Police 
Court on February 14, 1964, at which time and place 
all appellants appeared with counsel who examined 
and cross-examined all witnesses testifying in the 
cause. None of the appellants testified, nor did they 
offer any evidence in their behalf.

After considering all the evidence presented, the 
Magistrate adjudged all appellants guilty of violating



4 Counter-History of the Case

the provisions of Section 10-501(2) (h) of the Phila­
delphia Code and adjudged them not guilty of the 
charge of breach of the peace. On the charge of violat­
ing Section 10-501(2) (h), the Magistrate imposed on 
each appellant a fine of $50.00 and costs of $2.50, or in 
the event of non-payment of fine and costs, imprison­
ment for 10 days in County Prison, pursuant to Section 
10-502(1) which states:

“ The penalty for violation of any provision of this 
Chapter shall be a fine not less than $50. nor more 
than $300. together with imprisonment not ex­
ceeding 90 days if the fine and costs are not paid 
within 10 days.”

Appellants did not appeal from these convictions 
to the Court of Quarter Sessions or the Court of Com­
mon Pleas. They did, however, file a Petition for Writ 
of Certiorari in the Court of Common Pleas and pur­
suant to the writ subsequently issued, the Magistrate 
filed his return and certified his record. To this return 
of the Magistrate, appellants filed Exceptions. The 
Exceptions were heard by Hon. Charles L. Guerin of 
Common Pleas Court No. 2 of Philadelphia County on 
May 22, 1964. In an oral opinion of the same day, the 
Court dismissed the Exceptions and the Petition. The 
Court further authorized an amendment of the caption 
of the case to eliminate the Commonwealth of Pennsyl­
vania and substitute the City of Philadelphia as party 
plaintiff.

On June 19, 1964, appellants filed a Petition for 
Writ of Certiorari from the Supreme Court pursuant 
to Rule 68-V2 of that Court. On July 29, 1964, the 
Petition for Writ of Certiorari to the Supreme Court 
was denied without prejudice to appeal to the Superior 
Court. Appellants then filed an appeal to this Court on 
August 3, 1964.



ARGUMENT

Argument 5

I. T he Superior Court Is without Jurisdiction to 
Entertain an  A ppeal from an  Order of the 
Court of Common Pleas Sustaining a Convic­
tion by a  Magistrate for V iolation of a 
Municipal Ordinance.

In Commonwealth v. Hanzlik, 191 Pa. Superior 
Ct. 460 (1960) the Court reviewed its power to hear 
“appeals from orders of either the court of quarter 
sessions or the court of common pleas in reviewing 
judgments of courts not of record” and concluded that 
it had no such jurisdiction whatever. This Court spe­
cifically referred to actions for penalties for violation 
of municipal ordinances as included in the category 
of cases which this Court has no power to review.

In reaching its conclusion this Court made refer­
ence to the Act of March 20, 1810, P.L. 208, 42 P.S. 
§957, which provides as follows:

“ In all cases, either party shall have the privilege 
of removing the cause by writ of certiorari from 
before any justice, whose duty it shall be to certify 
the whole proceeding had before him, by sending 
the original precepts, a copy of the judgment and 
execution or executions, if  any be issued: provided 
always, That the proceedings of a justice of the 
peace shall not be set aside or reversed on cer­
tiorari for want of formality in the same, if it 
shall appear on the face thereof that the defend­
ant confessed a judgment for any sum within the 
jurisdiction of a justice of the peace, or that a 
precept issued in the name of the commonwealth 
of Pennsylvania, requiring the defendant to ap­
pear before the justice on some day certain, or



6 Argument

directing the constable to bring the defendant or 
defendants forthwith before him, agreeably to 
the provisions and directions contained in this 
act, and that the said constable having served the 
said precept, judgment was rendered on the day 
fixed in the precept, or on some other day to which 
the cause was postponed by the justice, with the 
knowledge of the parties; and that no execution 
issued by a justice shall be set aside for infor­
mality, if  it shall appear on the face of the same 
that it issued in the name of the commonwealth of 
Pennsylvania, after the expiration of the proper 
period of time, and for the sum for which judg­
ment had been rendered, together with interest 
thereon and costs, and a day mentioned on which 
return is to be made by the constable, and that 
the cause of action shall have been cognizable 
before a justice of the peace; and that the judg­
ment of the court of common pleas shall be final 
on all proceedings removed as aforesaid, by the 
said court, and no writ of error shall issue 
thereon.”

The Hanzlik case involved an appeal from an 
order of a court of quarter sessions finding certain 
defendants not guilty of violating a township ordi­
nance. This Court certified the case to the Supreme 
Court because of its own lack of jurisdiction. In so 
doing it stated (pp. 462,463) :

“ Section 22 of the Act of March 20, 1810, P.L. 
208, 5 Sm. L. 161, 42 PS §957 provides for re­
moving the cause by writ of certiorari from before 
a justice of the peace to the court of common 
pleas. The section also provides ‘that the judgment 
of the court of common pleas shall be final on all



Argument 7

proceedings removed as aforesaid, by said court 
[of common pleas], and no writ of error shall 
issue thereon.’
“ The only way such case may be reviewed, there­
fore, is on narrow certiorari emanating from the 
Supreme Court. This Court cannot grant appel­
late review in such cases. Bell Appeal, supra.
“ This provision relates not only to ordinary civil 
proceedings in contract or tort, but also to actions 
to recover a penalty for the breach of a municipal 
ordinance prohibiting an act not a public offense 
or indictable. Mahanoy City Borough v. Wad- 
linger, 142 Pa. 308, 21 A. 823 (1891). Colwyn 
Borough v. Tarbotton, 1 Pa. Superior Ct. 179 
(1896). It applies to alderman, magistrates and 
burgesses. See cases under 42 PS §957.

* * * * *

“ The action in this case brought against the de­
fendant for violation of an ordinance was a suit 
for a penalty and it should have been appealed 
to the court of common pleas. York v. Baynes, 188 
Pa. Superior Ct. 581, 149 A. 2d 681 (1959). How­
ever, this is not important here, for we have no 
jurisdiction to entertain appeals from either the 
court of common pleas in suits for penalties to 
enforce ordinances or the court of quarter sessions 
in summary proceedings.”

The decision in Hanzlik is consistent with the well 
settled and oft stated rule that this Court may hear 
only those matters which it is specifically authorized 
to hear. This rule is precisely stated by the Supreme 
Court in Bell Appeal, 396 Pa. 592, 608 (1959) as 
follows:



8 Argument

“ To summarize: Where a right of appeal from 
the action of a lower court is not authorized by 
statute, or is expressly denied, or the statute pro­
vides that the action of the court below shall be 
final, appellate review of the proceeding can be 
had only on a writ of certiorari. Authority to issue 
such a writ is reposed in the Supreme Court by 
the Act of May 22, 1722 which conferred upon it 
the powers of the Court of King’s Bench. The Su­
perior Court is not clothed with such powers and 
is, therefore, without jurisdiction to review the 
proceedings of a lower court on certiorari. The 
Superior Court’s appellate jurisdiction rests ex­
clusively in direct appeal to it when expressly au­
thorized by statute.”

Appellants contend that the Act of August 14, 
1963, P.L. 401, Sec. 1 (c ), 17 P.S. §184, has enlarged 
the jurisdiction of this Court so as to create jurisdic­
tion over this matter. The aforecited Act is an amend­
ment to the Act of June 24, 1895, P.L. 212, §7 (c), as 
amended, which stated:

“ Any action, claim, distribution, or dispute of 
any kind in the common pleas, at law or in equity, 
whether originating therein or reaching that 
court by appeal or certiorari from some other 
court or tribunal, if the subject of the controversy 
be either money, chattels, real or personal, or the 
possession of or title to real property, and if also 
the amount or value thereof really in controversy 
be not greater than five thousand dollars, exclu­
sive of costs, and if also the action be not brought, 
authorized or defended by the Attorney General 
in his official capacity.”



Argument 9

The Act as amended by the above Act now states:
“All actions and proceedings at law in the courts 
of common pleas and in the County Courts of 
Allegheny County and Philadelphia County and 
all similar courts, whether originating therein or 
reaching that court by appeal or certiorari from 
some other court or tribunal, if the subject of the 
controversy be either money, chattels, real or per­
sonal, or the possession of or title to real property, 
and if also the amount or value thereof in con­
troversy be not greater than ten thousand dollars, 
exclusive of costs.”

It is obvious that the Act of August 14, 1963 did 
not broaden the jurisdiction of this Court as it relates 
to this case under the above cited decisions. In fact, 
it could be argued that the legislature has “ affirmed” 
the judicial interpretations of the various acts con­
strued in the Bell Appeal, supra, and Commonwealth 
v. Hanzlik, supra.

The present case is clearly one on which, under 
the above authorities this Court may not hear. It is 
an appeal from the order of the Court of Common 
Pleas of Philadelphia County dismissing exceptions 
to the judgment of a Philadelphia magistrate who had 
found the appellants guilty of violating a Philadelphia 
ordinance.

For the reasons stated, it is submitted that this 
Court should sustain the appellees within Motion to 
Dismiss the appeal herein.



10 Argument

II. A ssuming A rguendo T hat T his Court Has 
Jurisdiction to Hear T his A ppeal, It May  Be 
Heard Only  on N arrow Certiorari.

Even if we may assume arguendo that this Court 
has jurisdiction to hear the present appeal its scope 
of review is limited to narrow certiorari since under 
the Act of March 20, 1810, 42 P.S. §957:

“ . . . the judgment of the court of common pleas 
shall be final on all proceedings removed as afore­
said, by the said court, and no writ of error shall 
issue thereon.”

The Supreme Court has repeatedly held that 
where a statute specifically provides that the decision 
of a lower court is final or that no appeal lies there­
from appellate review may only be had on narrow 
certiorari. The scope of narrow certiorari is clearly 
set forth in Baldali v. Hartman, 410 Pa. 652, 653 
(1936) as follows:

“ Where a statute expressly denies the right of 
appeal, or provides that the action of the court 
below shall be final, then review may be had only 
by the Supreme Court by means of narrow certio­
rari. Under narrow certiorari our scope of re­
view is limted to a determination of whether the 
court had jurisdiction; whether the proceedings 
were regular; whether the court exceeded its 
power and authority; and, whether there was a 
violation of constitutional rights. Meell Appeal, 
405 Pa. 184, 174 A. 2d 110 (1961); Devito v. 
Civil Service Commission, 404 Pa. 354, 172 A. 
2d 161 (1961).”



Argument 11

Thus, the magistrate’s verdict must be sustained 
if (1) the magistrate had jurisdiction of the parties 
and the action, (2) the proceeding was regular on its 
face, and (3) no violation of appellants’ constitutional 
rights appear on the record. It is submitted that the 
record discloses the propriety of the proceedings in 
all these respects.

The exceptions of the appellants to the proceed­
ings before the Magistrate raise the following issues 
(R. 1 0 a ):

(1) The proceeding before the magistrate 
was actually a criminal proceeding when it should 
have been a civil proceeding (Exceptions 1, 2, 3).

(2) The magistrate lacked jurisdiction be­
cause the ordinance in question authorizes penal­
ties up to $300 and because the record fails to 
show service of a summons on any appellant (Ex­
ceptions 4 and 6).

(3) The magistrate’s return was defective 
because it failed to furnish certain specific infor­
mation about the proceedings before him (Ex­
ceptions 7, 8, 9, 10).

(4) The magistrate’s return shows that the 
conviction was not supported by the evidence (Ex­
ceptions 11, 12).

(5) The magistrate’s return shows that ap­
pellants’ plea of autrefois acquit should have been 
sustained. (Exception 13).

Exception 5 which states that summonses were 
issued for one date and a hearing held on another has 
apparently been abandoned by the appellants.

The above issues are specifically discussed in the 
following sections of the brief.



12 Argument

III. Regardless of H ow the A ction Is Initiated, an  
A ction for V iolation of a Municipal Ordi­
nance Is a Civil Proceeding.

There was for a long time confusion and disagree­
ment among the lower courts of the Commonwealth as 
to whether there can be instituted criminal proceedings 
for the violation of ordinances passed by the various 
political subdivisions of the Commonwealth. However, 
the Supreme Court in a recent decision, Commonwealth 
v. Ashenfelder, 413 Pa. 517 (1964), clarified the law 
and squarely held that an action for violation of an 
ordinance is civil in nature and no appeal lies to the 
Court of Quarter Sessions from a judgment entered 
against a defendant for the violation of a municipal 
ordinance. The Court in its decision quoted from York 
v. Baynes, 188 Pa. Superior Ct. 581, 585 (1959) where­
in Judge Woodside stated:

“ It is our opinion that an action brought against 
a defendant for the violation of a municipal ordi­
nance is a suit for the recovery of a penalty due 
the municipality, and is a civil proceeding. It is 
not a summary proceeding which is a criminal 
proceeding, even though it may be started by war­
rant. A judgment entered against a defendant for 
the violation of a municipal ordinance is for a 
penalty even though it may be referred to by the 
legislature and the magistrate as a ‘fine’.”

Therefore, as above stated, regardless of the terms 
used any “ conviction” for the violation of a municipal 
ordinance is civil. Appellants contend, however, in the 
face of the Ashenfelder case that they were convicted 
in a criminal action. They base this, in part, on the 
process used (or alleged lack thereof) in instituting 
the within action, an issue hereinafter discussed, and



Argument 13

partly on the fact that the action was brought in the 
name of the Commonwealth represented by the Dis­
trict Attorney, that “ warrants” were issued and a 
“ fine” was imposed, thus necessitating a finding that 
a criminal conviction was had.

It has been the holding of this Court and the Su­
preme Court of this Commonwealth that, while it is 
technically error to bring an action in the name of the 
Commonwealth for the violation of a municipal ordi­
nance, it does not constitute reversable error. Pleasant 
Hills Boro Council v. Carroll, 182 Pa. Superior Ct. 102 
(1950); Reid v. Wood, 102 Pa. 312 (1883). Further, 
in the case at bar, the Commonwealth was, in fact a 
proper party in that there were originally two other 
charges preferred against appellants as a result of 
the same acts on their part, i.e., disorderly conduct and 
breach of the peace. Both such actions must be brought 
in the name of the Commonwealth. Disorderly conduct 
clearly must be so instituted because it is a violation 
of the Act of June 24, 1939, P.L. 872, §406, 18 P.S. 
§4406. Breach of the peace, it has been held, is a com­
mon law indictable offense. United States v. Kessler, 
213 F. 2d 53 (3 Cir. 1954) ; Commonwealth v. Rubin, 
82 Pa. Superior Ct. 315 (1923). Further, at the hear­
ing February 14, 1964 before Magistrate Hagan at 
which evidence as to the violation of the ordinance 
was received, the charge of breach of peace was still 
open and, in fact, defendants were found not guilty 
thereof.

With regard to appellants’ contention that “war­
rants” were issued to institute this action thus making 
it a criminal proceeding, it should be noted that no 
warrants were ever issued in this matter. Process was 
originally instituted by sight arrest and later criminal 
summonses were issued pursuant to the Act of Sep­



14 Argument

tember 18, 1961, P.L. 1464, 19 P.S. §12.1 (which actu­
ally prohibits the issuance of warrants as to the crim­
inal proceedings herein involved) for breach of the 
peace. Included therein was a recital of the charge that 
Section 10-501(2) (h) of The Philadelphia Code had 
been violated. However, even if warrants had been 
issued, both Commonwealth v. Ashenf elder, supra, and 
York v. Baynes, supra, specifically hold that institution 
of process by warrant does not change the civil nature 
of the matter. The same position was taken by the 
Courts with regard to the imposition of a “ fine.”  As 
stated at page 525 of Commonwealth v. Ashenf elder, 
supra:

“ Even though this action was instituted by the 
issuance of a warrant— which the record before 
us does not disclose— and even though the penalty 
under the provisions of the ordinance is termed a 
‘fine’, this is fundamentally an action instituted 
for the violation of a township ordinance and an 
appeal from the judgment entered in such action 
should have been taken to the court of common 
pleas and not the court of quarter sessions.”

The mere fact that the District Attorney who was 
properly before the Court as to the breach of peace 
charge also conducted that part of the hearing involv­
ing the violation of the ordinance would not seem rele­
vant in determining whether the action was civil or 
criminal.



Argument 15

IV. The Magistrate’s Court Had Jurisdiction Over 
the Persons of the A ppellants.

a. Two Separate Acts of Legislature Provide for the 
Institution of Process for the Violation of a Muni­
cipal Ordinance of Cities of the First Class.
Appellants contend that there is but a single 

method of instituting process for the violation of a 
municipal ordinance in Philadelphia; this is clearly in­
correct.

Unquestionably, as cited by appellants, one method 
of bringing such an action set forth in the Act of March 
15, 1858, P.L. 114, §1, 53 P.S. §17082, which provides:

“ For all breaches of the ordinances of the City of 
Philadelphia where the penalty demanded is fifty 
dollars and upwards, actions of debt shall be 
brought in the corporate name of the City of 
Philadelphia.”

However, the Act of May 3, 1876, P.L. 99, §1, 53 
P.S. §13349, provides a second method of instituting 
an action for the violation of a Philadelphia ordinance; 
it provides:

“ Any police officer or constable, upon view of the 
breach of any ordinance of any city of the first 
class, is authorized to forthwith arrest the person 
or persons so offending without any process, and 
to take said person or persons forthwith before 
any police magistrate or alderman of said city, 
who shall thereupon require bail for the appear­
ance of said person at a time to be fixed for the 
hearing of said charge, and in default of bail to 
commit for a hearing; and at said hearing the 
case shall be proceeded with as if the parties were 
appearing before said magistrate or alderman



16 Argument

upon a summons duly issued and returned served, 
or if both parties desire it the case may be en­
tered and determined by the magistrate or aider- 
man in like manner, without requiring bail or 
further continuance.”

Thus, clearly, appellants contention that an action 
for debt or assumpsit is the exclusive method of insti­
tuting an action for violation of a municipal ordinance 
is clearly in error. Actions brought pursuant to the 
above Act of May 3,1876, are civil; as Judge Levinthal 
stated in Commonwealth v. Hindin, 88 D. & C. 292 
(1944) at page 297:

“ In our opinion, the fact that this statute author­
izes arrests on sight, in case of breach of ordi­
nances, does not require us to hold that the pro­
ceeding are criminal in their nature. The com­
mencement of certain civil proceedings by arrest 
is common in tort actions begun through writs of 
capias ad respondum. All that the legislature has 
done by the aforesaid Act of 1876 was to authorize 
the actions for the recovery of penalties for breach 
of ordinance by arrests without any other process. 
This cannot have the effect of converting what 
would be otherwise be a civil suit for the collec­
tion of a penalty into a criminal prosecution re­
sulting in a summary conviction.”

b. Appellants Were Properly Before the Magistrate's 
Court for Violation of Section 10-501(2) (h) of 
the Philadelphia Code.

1. The Action Was Properly Instituted Pursuant 
to the Act of May 3, 1876, P. L. 99, %133^9.

As has been set out in appellee’s Counter-History 
of the Case, defendants were initially arrested on sight



Argument 17

and brought before a magistrate and charged with 
breach of the peace and disorderly conduct. There­
after, a hearing was held by Magistrate Hagan on 
September 21, 1963, and continued until September 
30, 1963, at which time appellants were found guilty 
of disorderly conduct and fined $7.50 plus costs. No 
disposition of the charge of breach of the peace was 
made. Appellants appealed the conviction to the Court 
of Quarter Sessions and on January 24, 1964, Judge 
Guerin reversed the convictions as to the disorderly 
conduct charge and specifically held that the charges 
of breach of the peace remained open and undeter­
mined before Magistrate Hagan. For the purpose of 
having Magistrate Hagan enter a decision on the open 
charges of breach of the peace the District Attorney 
caused to be issued what purport to be criminal sum­
monses. Contained within these “ criminal summons” 
was a recital that the defendants were charged with 
having violated Section 10-501(2) (h) of The Phila­
delphia Code and were directed to appear before Mag­
istrate Hagan for the disposition of both charges.

Under the Act of May 3, 1876, the defendants 
could have been properly arrested on sight, brought 
before a magistrate and charged with a civil violation 
of the ordinance without any further process. In the 
instant case the defendants were in fact properly ar­
rested for breach of the peace and disorderly conduct 
and the allegation of an admittedly civil violation add­
ed after the initial hearing but prior to conclusion of 
the subsequent hearings regarding the above charges. 
Indeed, no objection was raised by defendants’ counsel 
to the addition of the violation at the time nor was any 
statement entered on record that the initial arrests 
were illegal. The process by which the violation of the 
ordinance was instituted was, therefore, within the 
purview of the aforecited Act of May 3,1876.



18 Argument

2. The Action Was Properly Instituted Pursuant
to the Act of March 15, 1858, P. L. 1H, §1, 
53 P. S. 117082.

Judge Guerin, sitting as a Judge of Quarter Ses­
sions Court specifically held that the charge of breach 
of peace was still open and undecided. Thus, the “ crim­
inal summonses” issued by Magistrate Hagan were 
unnecessary with regard to that charge and the re­
cital thereof in the summonses was surplusage. Fur­
thermore, since pursuant to the Ashenfelder decision, 
no criminal action was possible as to the ordinance, the 
“ criminal summonses” were in fact civil summonses 
for violation of the municipal ordinance. As such they 
fulfilled the requirement of the Act of March 15, 1858, 
before cited, requiring institution of such proceedings 
to be in debt (or assumpsit). Here the initial proceed­
ing could be regarded as the issuance of a summons. 
Under the circumstances, the defendants were prop­
erly before magistrate and charged with the violation 
of the ordinance.

3. Appellants Have Waived All Rights to Object
to Alleged Defects of Service of Process by 
Appearing Without Objection and Proceed­
ing to Trial Without Objection.

It has long been the law of this Commonwealth 
that where the institution of process before a magis­
trate or justice of the peace is in some manner defec­
tive the appearance of the defendant and the proceed­
ing to trial on the merits without objection constitutes 
a waiver of the defect in that such appearance gives 
the magistrate jurisdiction over the person. Weiden- 
hamer v. Bertie, 103 Pa. 448 (1883); Sweitzer v. 
Emert, 55 Pa. Superior Ct. 176 (1913).



Argument 19

The appellants appeared before Magistrate Hagan 
on February 14, 1964, and proceeded to trial solely on 
the issue of whether there was a violation of Section 
10-501(2) (h) of The Philadelphia Code as shown by 
the Magistrate’s return. Counsel for the defendants 
made this abundantly clear by continuously objecting 
to evidence which was offered regarding the charge of 
breach of the peace on the grounds that the Common­
wealth had rested its case as to that charge. No objec­
tion was made by appellants to the hearing on the ordi­
nance violation nor to the manner in which the ap­
pellants came before the court.

Thus, in the words of the Supreme Court in 
Weidenhamer v. Bertie, supra, at page 450:

“ The transcript shows the defendant below ap­
peared and went to trial without objection. This 
was a waiver of all questions relating to the re­
turn of summons and the time of service. It gave 
the justice jurisdiction of his person.”

Similarly, the Superior Court in Sweitzer v. 
Emert, supra, at page 178 stated:

“ In the present case the record does not show lack 
of jurisdiction either of the parties or the subject 
matter. It is contended that the constable’s return 
does not show legal service. But the defendant ap­
peared before the justice and the case was tried 
on its merits. This gave the justice jurisdiction 
of the person of the defendant beyond any con­
troversy; . . .”

See also Borough of Colwyn v. Tarbotton, 1 Pa. Su­
perior Ct. 179 (1896), wherein the exceptions pertain­
ing to the jurisdiction of the justice were dismissed.

It is submitted that the appellants were validly 
before the Court under either of the aforementioned



20 Argument

acts of legislature. However, if the Court should find 
a defect in process the appellants, on the record, have 
conclusively waived their rights to object by appearing 
before the Magistrate and going to trial on the merits 
without objection.

V. E nforcement of Section 10-501(2) (h) of the 
Philadelphia Code Is W ithin  the Jurisdiction 
of the Magistrates’ Courts W hen  the Pen ­
alty Sought and Imposed Is One Hundred 
Dollars or Less.

Appellants contend that since the municipal ordi­
nance herein at issue provides for a minimum fine of 
fifty dollars and a maximum fine of three hundred 
dollars and in default of payment thereof the imposi­
tion of jail sentences that the magistrates’ courts of 
Philadelphia have no jurisdiction to hear violations 
thereof and that it is particularly unconstitutional 
when there is a criminal conviction.

The First Class City Home Rule Act of April 21, 
1949, P.L. 665, Article II, Section 17, 53 P.S. §13131, 
and the City Charter, Section 1-100 provide that the 
City may enact ordinances imposing penalties up to 
three hundred dollars and further, the City has, in fact, 
enacted numerous ordinances providing for maximum 
penalties of three hundred dollars. Literally twenty 
thousand suits were brought before the magistrates’ 
courts this year by the City pursuant to such ordi­
nances. If the appellants’ contention were accepted all 
of these cases would have to be instituted in the County 
Court. The impossible situation which would be created 
if this were the case is apparent.

That the civil jurisdiction of the magistrates’ 
courts in Philadelphia is limited to one hundred dollars 
in civil actions is not the issue; appellee concedes that



Argument 21

this is the case. Field Enterprises Ed. v. Golatt, 198 
Pa. Superior Ct. 422 (1962) 1 Appellee, however, de­
nies that the mere fact that an ordinance provides for 
a maximum penalty of three hundred dollars is suffi­
cient under the Constitution to oust jurisdiction from 
the magistrates’ courts where in fact the maximum 
penalty demanded by the City was limited to one 
hunder dollars and the court, in fact, imposed a penalty 
of fifty dollars. The summons issued by the magistrate 
and specifically made part of his return states: 
“ . . . you are liable to a fine not exceeding one hundred 
dollars ($100).” The magistrate’s transcript states 
that . . all defendants . . . were adjudged guilty 
of violating the provisions of Section 10-501 (2) (h) of 
The Philadelphia Code of City Ordinances and were 
sentenced to pay a fine of $50.00 and costs of $2.50 or 
imprisonment for 10 days in County Prison.”

Appellants’ position rests on the proposition that 
the present action was criminal. As stated before, Com­
monwealth v. Ashenfelder, supra, has determined that 
actions such as now before the Court are civil proceed­
ings. Thus, appellants’ objection resolves itself to the 
following question: does a magistrate of Philadelphia 
County have constitutional and legislative authority 
to hear and determine actions for violation of a muni­
cipal ordinance wherein the penalty demanded is one 
hundred dollars or less and judgment is entered for 
said sum or less but where the municipal ordinance 
under which the action was instituted authorizes a 
penalty in excess of one hundred dollars?

This precise question has never been decided by 
this Court or the Supreme Court of Pennsylvania. Since 
the early decision of Collins v. Collins, 37 Pa. 387, 390

1 This jurisdictional limitation is established by Art. V, 
Sec. 12 of the Pennsylvania Constitution.



22 Argument

(1860), it has been held that the jurisdiction in a 
contract action depends on the following test:

“  ‘The sum demanded’ is the test of jurisdiction. 
To get at that, we look at the transcript of the 
justice and the narr. on the appeal, and the prac­
tice is to receive parol testimony also; and from 
all these sources to determine the jurisdiction by 
the matter of fact. If it appear that the plaintiff’s 
demand really exceeded $100, and that he involved 
the justice in litigation beyond his jurisdiction by 
remitting the excess, it is of great importance to 
declare against the jurisdiction, . . .”

The above case was cited and followed by this 
Court in Field Enterprises Ed. v. Golatt, supra. As be­
fore stated, the sum demanded by the summons as in 
the present case was one hundred dollars or less. Ap­
pellants’ position appears to be since the ordinance au­
thorizes a maximum penalty of three hundred dollars 
that, by analogy to the “ sum demand” test of the Col­
lins case that the “ sum demanded” in this litigation 
must be three hundred dollars. There would be merit 
in such a position if the ordinance demanded a mini­
mum fine of three hundred dollars. Here, however, the 
minimum demanded is fifty dollars. An action for vio­
lation of an ordinance is unlike a contract claim where 
the amount of the claim is determinable to the penny. 
The penalty sought will vary as to the enormity of the 
violation in the eyes of the City which institutes the ac­
tion. Thus the situation is analogous to Chester v. Mc- 
Geoghegan, 6 Pa. Superior Ct. 358, 360 (1898) where­
in this Court stated:

“ The appellants argue, however, that the city be­
cause it is a municipality having its powers and



Argument 23

duties defined by statute, cannot legally sue for 
less than the principal, with the interest and pen­
alty attached. To this we cannot assent. The 
proper municipal officers may compromise claims, 
or remit them in whole or in part, when delay and 
expense may be saved by so doing, being responsi­
ble at the proper time and place for any breach of 
duty. The appellants are not in court as citizens 
defending the rights of the city, but as mere debt­
ors refusing to pay a just debt, on the sole ground 
that the plaintiff might have sued for more. They 
cannot be heard to object in this proceeding, that 
the city authorities have done what any private 
suitor might lawfully do, to secure a standing in 
the alderman’s court.”

Appellee is entitled in the first instance to deter­
mine the amount of penalty sought and, in a proper 
case, to elect to bring the action before a magistrate or 
the County Court. All the City must do is affirmatively 
to throw off, before the hearing, that amount of the 
penalty which would be in excess of the jurisdiction of 
the inferior court. To hold otherwise would be to allow 
defendants to avoid liability on the sole ground that 
the City could have sought a greater penalty.

That suits for penalty may be brought before a 
magistrate is above question. Act of March 15, 1858, 
P.L. 114, §1, 53 P.S. §17082; Act of May 3, 1876, P.L. 
99, §1, 53 P.S. §13349.

The magistrate had jurisdiction over the appel­
lants in accordance with the above cited acts since the 
penalty demanded was not in excess of one hundred 
dollars as both the summonses and the Magistrate’s 
transcript show.



24 Argument

VI. T he Magistrate’s Return Is Regular on Its 
Face and Fulfills the Requirements of the 
A ct of March 20, 1810, P.L. 208, §22, 42 P.S. 
§497.
As stated before, the action before the Court is a 

civil proceeding, Commonwealth v. Ashenf elder, supra. 
As such it is governed by the Act of March 20, 1810, 
P. L. 208, 5 Sm. L. 161, §22, 42 P.S. §957, and is re- 
viewable on narrow certiorari. Baldali v. Hartman, 
supra. Therefore, as set out in the Baldali case at page 
653 such review is limited to :

“ . . . whether the court had jurisdiction; whether 
the proceedings were regular; whether the court 
exceeded its power and authority; and whether 
there was a violation of constitutional rights.”

The questions of jurisdiction and power and au­
thority have been dealt with in preceeding sections of 
this brief. Thus, the only questions remaining are 
whether the proceedings were regular and whether 
there was a violation of constitutional rights.

A writ of certiorari brings up for review nothing 
but the record. Bedford v. Kelly, 61 Pa. 491 (1869) ; 
Appeal of Glidding, 81* Pa. 72 (1872).

Although appellants argue that no evidence of any 
kind was adduced at trial to support their “ conviction,” 
is is clear that the evidence need not be set out in the 
return as is the case of a summary conviction; all that 
is necessary is that the return show that the findings of 
fact made by the magistrate are based on the evidence 
adduced at the trial and this may be inferred by refer­
ence to the allegations of the complaint. McGinnis v. 
Vernon, 67 Pa. 149 (1870); Bedford v. Kelly, supra; 
Lynch v. Hickey, 152 Pa. Superior Ct. 129 (1943). 
There is a presumption that the facts found by the 
magistrate were based on evidence. Bedford v. Kelly,



Argument 25

supra; Lynch v. Hickey, supra. All that is required is 
that the docket show that witnesses were sworn and 
testified. Battles v. Nesbit, supra.

In the case before the Bar the transcript states 
that:

“ Defendants, Jerome Dortort, Jake Jiles, Frede­
rick Feldman, Frank Delano Haley, Geoffrey Lo- 
benstine, Walter Lively, Margaret Ann Neissner, 
Florence Johnson, Susan Mayer, and Lillian Mir- 
mak, as well as one Joseph Harvey, were charged 
in a sworn complaint, executed by and sworn to 
under the oath of Frank Rizzo, Deputy Commis­
sioner of Police of the City of Philadelphia, an at­
tested copy of which complaint is hereunto at­
tached and made part hereof, with breaches of the 
peace and with violating the provisions of Chapter 
10-500, Section 10-501(2) (h) of the Philadelphia 
Code in that each of the defendants did use a City 
facility, namely, the office of the Development Co­
ordinator, Room 210, City Hall, Philadelphia, 
Pennsylvania, and entered into said City Property, 
and remained therein, without authority, and re­
fused to leave the same when lawfully requested 
so to do, the said offenses being committed on the 
20th day of September, 1963 at and in Room 210, 
City Hall, Philadelphia, Pennsylvania. “ Pursuant 
to said sworn complaint and information, which 
was filed with me on January 31,1964, summonses 
were duly issued by me, under my hand and seal 
and served upon each of said defendants, together 
with copies of the complaint, summoning each of 
the defendants to appear before me at Room 625 
City Hall, Philadelphia, Pennsylvania on Febru­
ary 4, 1964. The original summonses and precepts 
as to each defendant are hereunto attached and 
made part hereof.



26 Argument

“ Also attached hereto and made part hereof, are 
copies of the docket entries as to each defendant, 
showing, inter alia, the names of the witnesses 
who appeared, at the hearing held before me on 
February 14, 1964, and who, after being duly 
sworn according to law, testified.
“ All of the defendants, with the sole exception of 
defendant, Joseph Harvey, appeared and were 
represented by counsel and were given an oppor­
tunity to examine all witnesses. None of the de­
fendants testified nor did they offer any witnesses 
in their behalf.
“ After considering all evidence presented, all de­
fendants, with exception of defendant Joseph Har­
vey, who did not appear, were adjudged guilty of 
violating the provisions of Section 10-501(2) (h) 
of the Philadelphia Code of City Ordinances and 
were sentenced to pay a fine of $50.00 and costs of 
$2.50 or imprisonment for 10 days in County 
Prison. As to the charge of breach of peace, each 
defendant was discharged.”

(R. 4a, 5a, 6a)

The docket entries show that the same four wit­
nesses, Richard R. Buford, Deputy Commissioner 
Frank Rizzo, Loretta Logan, and Inspector Frank No­
lan testified as to each deefndant and both the tran­
script and complaint show the acts complained of.

Thus, the return shows that evidence was adduced 
from sworn witnesses, that there was service upon the 
defendants (or service was unnecessary as hereinbe­
fore discussed), and that a judgment was entered. 
Such a return fulfills the mandate of the Act of March 
20, 1810, P.L. 208, 42 P.S. §957, which provides only 
that



Argument 27

. . the proceedings of a justice of the peace 
shall not be set aside or reversed on certiorari for 
want of formality in the same, if it shall appear 
on the face thereof that the defendant confessed 
a judgment for any sum within the jurisdiction of 
a justice of the peace, or that a precept issued in 
the name of the commonwealth of Pennsylvania, 
requiring the defendant to appear before the jus­
tice on some day certain, or directing the constable 
to bring the defendant or defendants forthwith 
before him, agreeably to the provisions and direc­
tions contained in this act, and that the said con­
stable having served the said precept, judgment 
was rendered on the day fixed in the precept, or 
on some other day to which the cause was post­
poned by the justice, with the knowledge of the 
parties; . .

Appellants’ objections 7, 9, 10, 11 and 12 go to the 
merits of the case and the sufficiency of the evidence. 
Clearly, from the above act, certiorari is improper to 
raise such questions. Bradford v. Kelly, supra. How­
ever, it is clear that the return, including the tran­
script and the complaint, shows that the magistrate 
found facts based upon evidence of how the offense was 
committed (Objection 7) ; that the defendants were 
identified at the place of the offense (Objection 9) and 
the time of the offense (Objection 10).

Objection 12 goes to the application of the ordin­
ance to the appellants, claiming, it would seem, that 
once having properly entered onto city property the 
refusal to leave on proper request does not constitute a 
violation of Sectionl0-501 (2) (h) of The Philadelphia 
Code of Municipal Ordinances. While such an asser­
tion is not properly before the Court on certiorari, it



28 Argument

is sufficient to note that the Courts of this Common­
wealth have long held that proper entry is vitiated 
when the permission is terminated by the proper party 
and, further, that the United States Supreme Court 
has specifically upheld the right of a state (or munici­
pality) to reasonably limit periods of time during 
which public facilities are open to the public. Edwards 
v. South Carolina, 372 U.S. 229, 238, 83 S. Ct. 680, 684 
(1963).

VII. T he Plea of A utrefois A cquit Is Inapplicable 
to the Case at Bar.

As hereinbefore discussed the violation of a mu­
nicipal ordinance gives use to a civil proceeding only. 
Commonwealth v. Ashenf elder, supra. Nothing in the 
record indicates that the appellants were ever charged 
with trespassing; they were charged with breach of 
peace and disorderly conduct, criminal offenses. The 
elements of these crimes by their very definition do not 
include the elements necessary to find a violation of 
Section 10-501(2) (h) of The Philadelphia Code.

Disorderly Conduct is defined by the Act of June 
24, 1939, P.L. 872, §406,18 P.S. §4406, as:

“ Whoever wilfully makes or causes to be made 
any loud, boisterous and unseemly noise or dis­
turbance to the annoyance of the peaceable resi­
dents near by, or near to any public highway, road, 
street, lane, alley, park, square, or common, where­
by the public peace is broken or disturbed or the 
traveling public annoyed, . . .”

The gravamen of such an offense is noise and disorder. 
Commonwealth v. Greene, 410 Pa. I l l  (1963). By the 
words of statute it need not be physically on public 
property. Likewise, breach of the peace envisions “ . . .



Argument 29

a disturbance of the public tranquility and order.” 
Black’s Law Dictionary, 4th Ed., 1951, page 236.

Section 10-501(2) (h) prohibits, “ . . . use [of] 
any city facility or enter into any city property with­
out authority.”  No disturbance is required. The act 
punishable is the unauthorized use or entrance on city 
property. The elements required are clearly different 
from those involved in disorderly conduct and breach 
of the peace.

Appellants rely on two cases, Commonwealth v. 
Comber, 374 Pa. 570 (1953) and Commonwealth v. 
Bishop, 182 Pa. Superior Ct. 151 (1956) to sustain 
their position. It is submitted that both of these de­
cisions enunciate rules which are contrary to appel­
lants’ contention.

In Commonwealth v. Comber, supra, one of the 
questions before the Court was whether the plea of 
autrefois acquit bars a conviction for assault and bat­
tery and/or aggravated assault and battery when there 
has been a previous acquittal for involuntary man­
slaughter. On the facts of that case the Court allowed 
such a plea and at page 584 reviewed and cited with 
approval earlier cases touching on this issue; the Court 
stated:

“ In ‘Commonwealth ex rel. Moszcyzynski v. Ashe, 
343 Pa. 102, 21 A. 2d 9 2 0 , . . .  we said: “ The true 
test of whether one criminal offense has merged 
in another is not (as is sometimes stated) whether 
the two criminal acts are ‘successive steps in the 
same transaction’ but it is whether one crime nec­
essarily involves another, as, for example, rape 
involves fornication, and robbery involves both as­
sault and larceny . . : Com. v. McCusker, 363
Pa. 450, 457, 70 A. 2d 273.”

(Emphasis by the Court)



30 Argument

“ In Commonwealth v. Forney, 88 Pa. Superior Ct. 
451, 465, the Court said: ‘ “ The test in the plea of 
autre-fois acquit is whether the evidence neces­
sary to support the second indictment would have 
been sufficient to convict [defendant] on the first 
[indictment, of the lesser offense charged in the 
second] : Commonwealth v. Hazlett, 16 Pa. Su­
perior Ct. 534; Commonwealth v. Brown, 28 Pa. 
Superior Ct. 296; Commonwealth v. Allegheny V. 
Railway, 14 Pa. Superior Ct. 336” . . .  A former 
acquittal is only a bar where the defendant could 
have been convicted on the first indictment of the 
charge preferred in the second: Hilands v. Com­
monwealth, 114 Pa. 372.’ Accord: Com. v. Trim­
mer, 84 Pa. 65, 70; Com. v. Moon, 151 Pa. Supe­
rior Ct. 555, 560, 30 A. 2d 704; Com. v. Bardolph, 
123 Pa. Superior Ct., 35,186 A. 421.”

(Emphasis by the Court.)

In Commonwealth v. Bishop, supra, the question 
arose as to whether a defendant could be convicted of 
operating a motor vehicle while under the influence of 
a narcotic or habit forming drug after having been 
acquitted of operating a motor vehicle while under the 
influence of intoxicating liquor under the same factual 
circumstances. In upholding the plea the Court cited 
Commonwealth v. Evans, 45 Pa. Superior Ct. 174 
(1911) and quoted the following language of that case 
at page 157:

“ . . . a conviction of fornication was held to be a 
bar to a subsequent prosecution for bastardy 
growing out of the same unlawful sexual act. The 
court therein emphasized that the act of unlaw­
ful intercourse was the essential fact upon which 
the offense was based; and that, depending upon



Argument 31

the circumstances, an act of unlawful intercourse 
might constitute simple fornication, fornication 
and bastardy, seduction, or adultery. It was 
pointed out that there might be more than one 
count but not more than one prosecution.”

Without question under the facts of this case the 
evidence necessary to convict appellants of the criminal 
acts charged would not have shown a violation of a 
municipal ordinance.

Further, the violation of the ordinance gives rise 
to a civil action only and as such can not be subject 
to the defense of autrefois acquit in that form of ac­
tion, the burden of proof and parties being different. 
Cf. Shoup v. Mannino, 188 Pa. Superior Ct. 457 
(1959); Mineo v. Eureka Security Fire and Marine 
Ins. Co., 182 Pa. Superior Ct. 75 (1956).

Appellants further contend at page 25 of their 
brief that several federal cases have held “ that a crimi­
nal prosecution bars a later suit for penalty which 
arises out of the same act.”  This is not an accurate 
statement of the test applied by the cases cited. Al­
though the decisions do hold that the defense of autre­
fois acquit may be available in a suit for a penalty, the 
test applied is the same as in the Comber and Bishop 
cases above. For example, in United States v. Glidden 
Co., 78 F. 2d 639, 642 (1935) contains the following 
statement:

“ The answer here alleges that the offense or of­
fenses charged in the indictment consisted of a 
series of acts extending over and including the 
same period of time as charged in the petition in 
the case at bar, and that every fact alleged in the 
present petition might have been proved under the 
indictment.”



32 Argument

In all of the federal cases cited a civil suit for pen­
alty was brought by the United States for the same of­
fense for which there had been a previous criminal 
determination instituted by the federal government. 
In the case before the bar not only are the parties and 
burden of proof different but the acts complained of are 
different. The gravamen of the disorderly conduct and 
breach of peace charges is noise and disturbance. The 
mere fact that appellants refused in an orderly and 
quiet manner to leave city property is insufficient and 
would be by itself inadmissable to show breach of peace 
or disorderly conduct. So also would be evidence of 
loud or boisterous behavior be inadmissable to show 
unauthorized entrance onto or use of city property.

It is submitted, therefore, that the defense of 
autrefois acquit is inapplicable to the present action.

Conclusion

The defendants have been adjudged to be in viola­
tion of Section 10-501(2) (h) of the Philadelphia Code 
of General Ordinances after notice and a fair hearing. 
The judgment of the Court below should be affirmed.

Respectfully submitted,

W illiam  G. Klen k , II 
Assistant City Solicitor

Matthew  W . Bullock, Jr. 
Deputy City Solicitor

Edward G. Bauer

City Solicitor 
Attorneys for the Appellee