Commonwealth of Pennsylvania v. Dortort Brief for Appellants and Record

    J it  tlje Superior dTourt of Pennoploonia
Philadelphia District

No. 572 October Term, 1964

COMMONWEALTH OF PENNSYLVANIA
vs.

JEROME DORTORT. .) \('K,  J.LLFS. FREDER- 
ICK FELDMAN, ClOSEPH HARVEY> FRANK 
DELANO HALEY, GEOFFREY LOBENSTINE, 
WALTER LIVELY, MARGARET ANN NEISS- 
NER, FLORENCE JOHNSON, SUSAN C. MAY­

ER, LILLIAN MIRMAK,
Appellants

BRIEF FOR APPELLANTS AND RECORD

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

W illiam  L ee A kers ,
One East Penn Square Bldg., 
Philadelphia, Pa.,

H arry L ore,
135 South 19th Street, 
Philadelphia, Pa.,

Attorneys for Appellants.

Murrelle Printing Company, Law Printers, 201-203 Lockhart Street, Sayre, Pa.
Joseph F. Heffeman, Philadelphia Representative, MU 6-5692



INDEX TO BRIEF
P age

Statement of Questions Involved ...................  1
History of the Case ........................................  2
Argument:

1. A Criminal Conviction for a Civil Of­
fense Violates Due Process ...................  5

2. The Conviction, Being Without Evidence,
Violates Due Process, and This Consti­
tutional Deprivation May Be Raised on 
Certiorari .................................................. 10

3. The Magistrates’ Courts of Philadelphia 
Are Constitutionally Limited in Their
Jurisdiction to Hearing Cases Involving 
City Ordinances Under Which the Penal­
ty Sought Is One Hundred Dollars or
Less .........................................................  15

4. The Petitioners’ Previous Acquittal 
Bars Their Second Conviction for the 
Same Act ................................................  21

Conclusion .......................................................  26

TABLE OF CITATIONS

C ases :

Bartkus v. Illinois, 359 U.S. 121, 151 .............  25
Brown v. Hummel, 6 Pa. 86, 97 .................  9,29
Byers v. Olander, 161 Pa. Sup. 165 .............  19
City of New Castle v. Genbinger, 37 Pa. Sup.

'21  ................................................................. 13

l



Commonwealth v. Ashenfelder, 413 Pa. 517 .. 6, 28
Commonwealth v. Ayers, 17 Pa. Sup. 352, 358 13
Commonwealth v. Barbono, 56 Pa. Sup. 637 13
Commonwealth v. Beatty, 91 Pa. Sup. 37 . . . .  24
Commonwealth v. Bergen, 134 Pa. Sup. 62 . . 24
Commonwealth v. Bishop, 182 Pa. Sup. 151 . . 23
Commonwealth v. Cannon, 32 Pa. Sup. 78 . . 13
Commonwealth v. Comber, 374 Pa. 51 .........  23
Commonwealth v. Conn, 183 Pa. Sup. 144 . . . .  14
Commonwealth v. Divoskein, 49 Pa. Sup. 614 13
Commonwealth v. Goldberg, 31 D. & C. 2d 373,

375 ................................................................ 14
Commonwealth v. Greene, 410 Pa. I l l ........  6
Commonwealth v. Nesbit, 34 Pa. 398 .........  12
Commonwealth v. Palms, 141 Pa. Sup. 430,

438 ...............................................................  14
Commonwealth v. Strada, 171 Pa. Sup. 358 . . 8
Garner v. Louisiana, 368 U.S. 157 ......... . 10
Gieseu v. Conrad, 85 D. & C. 219 . ... . . . . .  . . 7
Huber v. Redly, 53 Pa. 112, 117 ......... ...........  8
Marsteller v. Marsteller, 132 Pa, 517 .......... 24
Rex v. Vipont et ah, 2 Burrows 1163, 1165 . . 12
Rutenberg v. Philadelphia, 329 Pa, 26 ........  21
Tappan v. Sementino, 13 D. & C. 2d 108 . . .b 7
Thompson v. City of Louisville, 362 U.S. 199 10
United States v. Chorteau, 102 U.S. 612 . . . .  25
United States v. Gates, Fed. Cas. No. 15, 191 25
United States v. Glidden Co., 78 F. 2d 639 .. 25

id



25United States v. Jim, 48 F. 2d 593 .................
United States v. LaFranca, 282 U.S. 568 . . . .
United States v. McKee, Fed. Gas. No. 15, 

688 ...............................................................
United States v. Seattle Brewing Co., 135 F.

597 ...............................................................
United States v. Ulrica, 102 U.S. 612 .........
C on stitu tio n s  :
Constitution of Pennsylvania:

Article 5, Sec. 10 ..................................  3,
Article 5, Sec. 12 ................. 16,17,19, 20,
Article 1, Sec. 9 ....................................

Constitution of the United States, Fourteenth 
Amendment ...............................................  7,

S t a t u t e s :
Act of April 17, 1876, P. L. 29, §1, as amend­

ed, 19 P.S. 1189 ........................................
Act of March 15, 1858, P. L. 114, §1, 53 P.S. 

17082 ...........................................................
Act of April 15, 1835, P. L. 291, §7, 42 P.S. 

291 ...............................................................17,
Act of December 9, 1955, P. L. 817, §1, 42 P.S. 

241 ...............................................................20,
Act of May 9, 1949, P. L. 1028, §14, 42 P.S. 

1144 .............................................................
Act of March 31, 1810, P. L. 427, §30, 19 P.S. 

464 ...............................................................
Act of September 18, 1961, P. L. 1464, 19 P.S.

12.1 ...............................................................
Ord inances :

Philadelphia Code of General Ordinances, 
Clip. 10, 500 ................................................

iii

25

25

25
25

12
21

i

22

6

20

21

24

24

5

6



M iscellaneous  :

Anno. 80 ALE 2d 1362,; 1367 ; ., .................... 10
Francis Bacon, Essays Civil and Moral . . . .  11
31 Am. Jur., Justices of the Peace, §57 . . . .  16
1 Sutherland, Statutory Construction, §2025 18
12 C.J., Constitutional Law, §97, p. 260 ....19 ,20
Burke’s Politics; Selected Writings and

Speeches .....................................................  27
Herbert Spencer, Social Statistics .............  27

INDEX TO RECORD

I. Relevant Docket Entries .......................  la
II. Magistrate’s Transcript .........................  4a

III. Defendants’ Exceptions .........................  10a
TV. Opinion sur Exceptions .........................  12a

Order .........................................................  18a

IV



Statement of Questions Involved
1

STATEMENT OF QUESTIONS INVOLVED

1. Does a criminal conviction for an act. which 
gives rise to a civil action only, deprive the pe­
titioners of the due process of law secured by the 
Fourteenth Amendment to the Constitution of the 
United States!

(Answered in the negative by the Court below).

2. Where the petitioners are convicted of a crim­
inal offense before the Magistrate, and his return 
is devoid of any evidence or facts concerning the 
offense charged, have the petitioners been deprived 
of due process of law secured by the Fourteenth 
Amendment to the Constitution of the United 
States!

(Answered, in the negative by the Court below).

3. Are the Magistrate Courts of the City of 
Philadelphia limited in jurisdiction to hearing 
cases involving city ordinances under which the 
penalty sought is one hundred dollars or less!

(Answered in the negative by the Court below).

4. If a single act constitutes several offenses 
and the Commonwealth elects to prosecute for some, 
but not for all, is the Commonwealth thereafter 
barred from obtaining new convictions for the re­
maining offense!

(Ansivered in the negative, by the Court below).



2
History of the Case

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 initially charged with disorderly conduct, and 
breach of the peace. The gravamen of the offense 
was their continued presence in the room after be­
ing directed to leave by a police officer.

Appellants were then tried before Magistrate 
William Hagan, who found them each guilty of 
disorderly conduct and presumptively discharged 
them as to breach of the peace. From those con­
victions an appeal was taken under the Act of 
April 17, 1876, P. L. 29, Sec. 1, as amended, 19 
P S. Sec.- 1189. The appeal was allowed and a 
trial de novo, was ordered by the Court of Quarter 
Sessions.

The trial de novo was held on January 24, 1964 
before the Honorable Charles L, Guerin. At the 
outset, the District Attorney advised the Court that 
the evidence would not sustain the conviction be­
low, and the Court thereupon entered a verdict of 
not guilty as to the appellants.

Thereafter, on January 31, 1964, upon an in­
formation sworn by Frank Rizzo, a police officer, 
criminal summonses were issued by Magistrate Wil­
liam Hagan for each of the appellants.' The sum­



History of the Case
3

monses were identical in form save the name of the 
appellant. A copy of one such summons is in the 
(Record, page 8a). The summons charged breach 
of the peace and violation of City of Philadelphia 
Ordinance 10-501(2) (h).

The appellants were again tried before Magis­
trate William Hagan, on February 14, 1964, who 
this time clearly discharged the appellants on the 
offense of breach of the peace, without, however, 
indicating whether he acted in response to the 
plea by defendants of prior adjudication or on the 
merits. He found the appellants guilty under the 
ordinance and imposed a fine on each of fifty dol­
lars or ten days in jail. Prior to this hearing, at 
which appellants were adjudged guilty of violating 
the ordinance, they sought to have the proceedings 
before the Magistrate enjoined and removed to the 
United States District Court for the Eastern Dis­
trict of Pennsylvania. The Magistrate was named 
as a party defendant and service was made by the 
United States Marshal on February 4, 1964.

Thereafter, the appellants herein sought writs of 
certiorari from the Common Pleas Court. Their 
petition was granted upon a rule to show cause and 
in due course the writ was issued by Court of Com­
mon Pleas Number 2. The certiorari was issued 
under the Constitutional power of the Court given 
by Art, 5, Sec. 10 of the Constitution of Pennsyl­
vania. Pursuant to the command of the writ, the 
Magistrate filed his return and defendants prompt­
ly filed exceptions thereto (Record, pages 10a,



4
History of the Case

11a). The exceptions were argued on May 22, 
1964 before the Honorable Charles L. Guerin and 
all were dismissed, the Court rendering an oral 
opinion thereon (12a-18a).

The reference in the opinion to a writ of habeas 
corpus is erroneous. No writ was ever sought, at 
any time, by appellants and no writ of habeas cor­
pus ever issued. The prior adjudication by Judge 
Guerin was not guilty (2a).



Argument
o

ARGUMENT

1. A CRIMINAL CONVICTION FOR A CIVIL 
OFFENSE VIOLATES DUE PROCESS

Appellants were brought before the Magistrate 
by warrants issued under the Penal Code. Act 
of Sept. 18, 1961, P. L. 1464, 19 P.S. 12.1. There 
were two counts to the information. The first 
count charged the defendants with breach of the 
peace. The second count charged a violation of the 
City ordinance.

The prosecution was commenced, tried, and ad­
judged as a criminal proceeding. It was conduct­
ed by the District Attorney, (At the argument on 
the. exceptions lie was “ appointed”  City Solicitor.) 
The Magistrate was asked to hold the defendants 
for the action of tlie grand jury on the charge of 
breach of the peace and convict them summarily of 
violating the ordinance. At the conclusion of the 
trial,.the Magistrate announced he. was discharging 
defendants as to. breach of the peace, and finding 
them guilty of violating the ordinance. He pro­
nounced sentence of 10 days in the County Prison 
or a fine of $50.00 plus $2.50 costs, as to .each of the 
appellants. The ordinance provides as follows:



6
Argument

“ No person shall: . . .
(h) use any city facility or enter into any 

city property without authority. The penalty 
for violation of any provision of this chapter 
shall be a tine not less than $50.00 nor more 
than $300.00 together with imprisonment not 
exceeding 90 days if the fine and costs are not 
paid within 10 days.”  Philadelphia Code of 
General Ordinances Chapter 10-500. Sections 
10-501(2) (h) and 10-502.

Since the fine is at least $50.00 petitioners ar­
gued that its enforcement and the proceedings there­
under should be governed by the Act of March 15, 
1858, P. L. 114, Sec. 1, 53 P.S. 17082. This act 
provides as follows:

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

No action of debt or assumpsit was brought 
against the defendants by either the City or 
the Commonwealth. Instead, the Commonwealth 
brought a criminal prosecution commenced as an 
indictable offense. The Supreme Court of Penn­
sylvania has made it plain that violations of ordi­
nances give rise to civil actions, Commonwealth v. 
Ashenfelder, 413 Pa. 517, and has condemned the 
use of criminal proceedings for such acts: Com­
monwealth v. Greene, 410 Pa. 111.

The statute is plain on its face and its applica­
tion to the ordinance is irresistible. Neither the



Argument
7

District Attorney nor the Court below suggested 
any reason why it should not control this case. 
Appellants contend it does. The statute conforms 
to the principle that violations of ordinances give 
rise to civil not criminal actions. The jurisdic­
tion of the Magistrate to proceed criminally ex­
tends only to those acts made criminal by our law. 
Just as a Court of Common Pleas can not pro­
ceed criminally on a complaint in assumpsit, the 
Magistrate can not entertain a criminal prosecu­
tion of a noncriminal matter. As a defect of form 
it would be fatal. Tappan v. Sementino, 13 D. & 
C. 2d 108. Here, it is one of substance, by which 
the petitioners have been greatly harmed and preju­
diced. The statute admits of no exceptions. If it 
means anything, its words are mandatory. It pro­
vides the sole and exclusive method of proceeding 
on the subject ordinance. Without the required 
action of debt, there has been no proceeding for 
violating the ordinance under our law. The judg­
ment of the Magistrate, having no legal founda­
tion in an appropriate action is void, Giesen v. 
Conrad, 85 D. & C. 219.

It is seldom that a mere error of state law of­
fends the State and Federal Constitutions. How­
ever, both the ninth section of the Bill of Rights 
of the Constitution of this Commonwealth and the 
first section of the Fourteenth Amendment to the 
Constitution of the United States guarantee the 
essential concepts of justice often described as due 
process. ‘ ‘ Due process of law means a course of 
legal proceedings according to those rules and prin­



8
Argument

ciples which have been established for the protec­
tion of private rights” , Commonwealth v. Strada, 
171 Pa. Superior Ct. 358. “ It ordinarily implies 
and includes a complaint, a defendant and a judge, 
regular allegations, opportunity to answer and a 
trial according to some settled course of judicial 
proceeding.”  Huber v. Reily, 53 Pa. 112, 117.

In this case the settled course of judicial pro­
ceeding has been completely avoided. The appel­
lants were entitled to the benefits of the civil law 
and its rules. What rules govern a trial that is al­
ternately criminal and civil? What rules of evi­
dence prevail? Are the petitioners entitled to strict 
construction of the offense and the charging paper 
or is mere notice sufficient? May the appellants 
file an affidavit of defense thereby preserving their 
■defenses on the record? IIow may an action, 'which 
vacilates, at the whim of the prosecutor, between 
civil and criminal be defended"] Can a trial with 
these uncertainties be due process? Can it be ac­
cording to the law of the land? Indeed, Mr. Jus­
tice Douglas spoke on this subject when he ad­
dressed the American Law Institute in The May­
flower Hotel in Washington, D.C., on May 20, 1953:

“ History show's that governments bent on a 
crusade, or officials filled with ambitions have 
usually been inclined to take short-cuts. The 
cause being a noble one (for it always is), the 
people being filled with alarm (for they usu­
ally are), the government being motivated by 
worthy aims (as it always professes), the de­
mand for quick and easy justice mounts. These



Argument
9

short-cuts are not as flagrant perhaps as a 
lynching, but the ends they produce are cumu­
lative and if they continue unabated, they can 
silently rewrite even the fundamental law of 
the nation.”

The appellants were convicted. That word, with all 
it implies, will follow them a:s an ever present cloud 
forever.

The law of the Commonwealth required a civil 
action. A criminal prosecution, in the teeth of our 
law, shocks the conscience and cries out for relief. 
Such a perversion of procedure probably would not 
have been even attempted before a tribunal learned 
in the law. By combining this illegitimate proce­
dure and practice with the Magistrate’s Court, the 
Commonwealth has effectively deprived appellants 
of their rights under the law. The appellants’ right 
to be served, to file answers, to preliminarily ob­
ject, to have judgment on the pleadings, discovery 
and, if the cause goes against them, a judgment of 
debt rather than a conviction of crime have been 
stripped away. Whatever rights they may have 
been entitled to were rendered so uncertain of mode 
of assertion that they were strangled by the gordi- 
an knot below. Due process has been completely 
avoided.

The court below has shifted the burden of secur­
ing these rights to this Court. This burden has 
been assumed in the past with alacrity. Brown v. 
Hummel, 6 Pa. 86.



10
Argument

2: THE CONVICTION, BEING WITHOUT
EVIDENCE, VIOLATES DUE PROCESS

Exceptions Nos. 7, 8, 9, 10, 11 and 12 (lOa-lla), 
filed by the appellants to the Magistrate’s return, 
were treated as one by the Court below. All these 
exceptions treat of the fact that the Magistrate’s 
return showed no evidence of any kind adduced at 
the trial of appellants to support their conviction. 
It is perfectly clear that a conviction without evi­
dence of guilt violates federal due process. Thomp­
son v. City of Lowisvitte, 362 U. S. 199, 80 S. Ct. 
624, 4 L. Ed. 2d 654 (1960) ; Garner v. Louisiana, 
368 U. S. 157, 82 S. Ct. 248, 7 L. Ed. 2d 207 (1961).

hi Thompson, the Supreme Court found no evi­
dence in the record to support a conviction of dis­
orderly conduct, and, accordingly held, 362 U. S. 
at 206, 4 L. Ed. 2d at 659 :

“ Just as ‘ convictions upon a charge not made 
would be sheer denial of due process’ so is it 
a violation of due process to convict and pun­
ish a man without evidence of his guilt.”

In the excellent annotation on Thompson in 80 
A.L.R. 2d 1362 the simple truth is stated that (p. 
1367):

“ Even a layman totally lacking in legal 
sophistication could be expected to give a nega­
tive and unhesitating answer to the question 
whether the criminal law permits conviction of



Argument
11

crime when the prosecution introduces no evi­
dence. . . . ”

Not only was the law ignored by the Court below, 
but elemental justice should have dictated to' the 
learned judge below that the conviction of appel­
lants could not stand where there was not a scin­
tilla of evidence to support it. “ Judges must be­
ware of hard constructions and strained infer­
ences” , wrote Sir Francis Bacon in 1597, “ for there 
is no worse torture than the torture of laws.” 1

It is in such eases that misapplication of state 
law offends the federal Constitution. Such is the 
instant case.

The Court below refused to consider these excep­
tions, which relate to the absence of evidence, and 
grounded its refusal on the totally fallacious propo­
sition, urged by the .District Attorney, that these 
substantive defects in the proof had been waived 
by taking certiorari to the Court of Common Pleas 
instead of an appeal to the. Court of Quarter Ses­
sions.2

1 Francis Bacon, Essays Civil and Moral (Cassell’s 
National Library, 1891), p. 170.

-  The Court below specifically stated as follows. (17a):
. “ All of these Exceptions [No. 7, 8, 9, 10, 11 and 
12] relate to the merits of the controversy and are 
not properly reviewable upon a Writ of Certiorari. 
For error of : the nature complained of in these ex- 
-ceptions, there is a remedy provided ... , by appeal

. ..to the Court of Quarter Sessions . . ...and the Court 
of Quarter Sessions would then have jurisdiction to 
hear the matter de novo and make its findings of 
fact and of guilt or innocence.”



12
Argument

It is submitted that certiorari to the Magistrate 
is the proper, appropriate and legal manner to 
raise the defect of no evidence. Indeed, the Consti­
tutional mandate in Art. 5, Sec. 10, is that the 
judges of the Common Pleas Courts shall have the 
power to issue writs of certiorari to inferior courts, 
not of record, so that “ . . . right and justice . . . be 
done.”  It is difficult to imagine a grant of correc­
tive power in a superior judicial tribunal broader 
in its scope than that. How can right and justice 
be done to the- appellants, if their convictions are 
allowed to stand, where there is a. total void in the 
evidence to support such conviction!

The law of the Commonwealth has been clear on 
this point for three hundred years. In Rex v. Vi- 
pont et al., 2 Burrows 1163, at 1165, the Court said: 
‘ ‘ In a conviction the evidence must be set out.”  
(The case was decided at Easter Term 1761, 1 Geo. 
3).

The rule is discussed at length in the leading case 
of Commonwealth v. Nesbit, 34 Pa. 398, 403 (1859). 
Chief Justice Lowrie describes it as follows:

“ The technical formalities of the old sum­
mary conviction are much beyond the ordinary 
skill of justices of the peace in this country; 
and for this and other reasons, some parts of 
them have been much condemned in modern 
legislation. But it is still essential, that a sum­
mary conviction shall contain a finding that a 
special act has been performed by the defend­
ant ; and that it shall describe or define it, in 
such a way, as to individuate it, and show that



it falls within an unlawful class of acts. With­
out this, a judgment that the law lias been vio­
lated gives nothing.

“ Now this is not merely a formal or techni­
cal rule of summary convictions, but a most 
essential and substantial one. No citizen can 
have any sort of protection against the igno­
rance or wickedness of inferior magistrates, 
if these were authorized to convict citizens of 
offenses, and yet allowed so to record their 
proceedings, that the very act done, cannot be 
ascertained, and thus their judgment cannot be 
tested by their judicial superiors.

“ A sentence is reversed, if the record do 
[sic] not show the commission of a well de­
fined act that is forbidden by law.”

This rule as to the record on certiorari has been 
consistently applied since, usually quoting the 
above passage of Chief Justice Lowrie: Common- 
ivealth v. Ayers, 17 Pa. Superior Ct. 352, 358; Com­
monwealth v. Cannon, 32 Pa. Superior Ct. 78; City 
of New Castle v. Genkingen, 37 Pa. Superior Ct. 21; 
Commonwealth v. Ba-rhono, 56 Pa. Superior Ct. 637. 
And habeas corpus will lie to discharge the defend­
ant if he be imprisoned on such a record. Common­
wealth v. Div.oskein, 49 Pa. Superior Ct, 614. In 
City of New Castle, supra, the Court strikes at the 
heart of the defect, saying about the record, 37 Pa. 
Superior Ct. at 27:

“ It will be noted that the justice does not 
find that the facts set forth in the information 
are true.”

13
Argument



14
Argument

Indeed, it would appear that only by certiorari 
could the defects complained of by the petitioners 
be raised before the Court below. In Commonwealth 
v. Palms, 141 Pa. Superior Ct. 430, 438, the Court 
stated:

“ 14: will be noted that the defendant did not 
proceed by way of certiorari to the court of 
common pleas; hence we are not concerned 
with alleged errors in the form of the com­
plaint or the transcript of the justice. He chose 
the remedy by appeal to the court of quarter 
sessions, which constituted a waiver of formal 
defects in the proceedings before the justice.”

See also Commonwealth v. Conn, 183 Pa. Superi­
or Ct. 144; Commonwealth v. Goldberg, 31 D. & C. 
2d 373 at 375. (“ By proceeding on appeal rather 
than by writ of certiorari, appellants have waived 
any defects in the Magistrate’s hearing, therefore, 
compelling us to sustain their convictions.”  per 
Judge Chudoff.)

It thus follows that certiorari does not waive the 
Constitutional infirmity of no evidence. It would 
be absurd if it did because the method urged by the 
District Attorney obtains a trial de novo by which 
an entirely new record is made without reference 
to the evidence, if any, below. An appeal from a 
court not of record does not review the proceedings 
below. Its purpose is to secure the proper admis­
sion or exclusion of testimony, to present a defense, 
and to secure a re-evaluation of the controverted 
facts. This conviction being without any support­
ing evidence or finding of fact cannot stand.



Argument
15

3. THE MAGISTRATES’ COURTS OF PHILA­
DELPHIA ARE CONSTITUTIONALLY LIMIT­
ED IN THEIR JURISDICTION TO HEARING 
CASES INVOLVING CITY ORDINANCES UN­
DER WHICH THE PENALTY SOUGHT IS ONE 

HUNDRED DOLLARS OR LESS

The municipal ordinance under which the appel­
lants were convicted provides a penalty of from 
$50 to $300 along with imprisonment for failure to 
pay. There was no suggestion or demand by the 
District Attorney for a penalty less than the maxi­
mum. The amount in controversy, as to each peti­
tioner, was $300 and the question was, how much 
of that sum, if any, were they liable for individu­
ally.

Appellants argued below that the Magistrate had 
no jurisdiction over the subject matter when the 
penalty exceeds one hundred dollars. Even though 
a judgment be rendered within Iris jurisdiction 
(less than $100), the Magistrate’s jurisdiction is 
not thereby determined or created. To hold other­
wise would be to allow a magistrate to legislate and 
carve an enclave of jurisdiction by his own fiat in 
holding down the size of the penalty.

Since the Magistrate can not know beforehand 
whether the case before him warrants the minimum 
penalty or the maximum penalty, which he has no 
authority to levy, how can it be argued, as the Com­
monwealth has done, that the minimum penalty 
shows that the Magistrate had jurisdiction. This



16
Argument

contravenes the most fundamental principle of ju­
risdiction, and, indeed, the law expressly negatives 
such a concept of “ Jurisdiction by Balkanization.”

“ The limitation of the justice’s jurisdiction 
is ordinarily determined by the character and 
amount of the punishment which may be in­
flicted in a particular case, and in determining 
whether a criminal case is within the jurisdic­
tion of a justice of the -peace the maximum 
punishment that might he imposed is . con­
trolling, and the fact that the minimum punish­
ment is -within his jurisdiction is immaterial.”  
(Italics added.)

31 Am. Jur., Justices of the Peace, §57.

Any determination of the jurisdiction of the 
Magistrate must begin with Art. 5, §12, of the Con­
stitution of Pennsylvania,3 which creates the Magis­
trate Courts in Philadelphia “ with jurisdiction not

3 Article 5, §12 provides: “ in Philadelphia there
shell be established, for each thirty thousand inhabitants, 
one court, not of record, of police and civil causes, with 
jurisdiction not exceeding one hundred dollars; such 
courts shall be held by magistrates whose term of office 
shall be six years, and they shall be elected on general 
ticket at the municipal election, by the qualified voters at 
large; and in the election of said magistrates no voter 
shall vote for more than two-thirds of the number of per­
sons to be elected when more than one are to be chosen; 
they shall be compensated only by fixed salaries, to be 
paid by said county ; and shall exercise such jurisdiction, 
civil and criminal, except as herein provided, as is now ex­
ercised by aldermen, subject to such changes, not involving



17

exceeding one hundred dollars ”  in “  police and civil 
causes ’

In opposition to this Constitutional limitation, 
■which allows for no enlargement by its express 
terms, the Commonwealth urged below only a part 
of the Act of April 15, 1835, P. L. 291, §7, 42 P.S. 
§291, which provides in full as follows:

“ The aldermen and justices of the peace of 
every city, incorporated township, and borough 
in this Commonwealth, shall have power to 
hear and determine all actions of debt for pen­
alty for the breach of any ordinance, by-laws 
or regulations of such city, township or bor­
ough, in the same manner, and subject to the 
same right of appeal as debts under one hun­
dred dollars, and such actions shall be. insti­
tuted in the corporate name of such city, town­
ship or borough.”

and argued that for breaches of ordinances the 
magistrate has plenary jurisdiction, regardless, of 
the amount involved, since the Act antedates the 
Constitution and, presumptively, was incorporated 
therein. The weakness of this argument is made 
manifest by the clear language of the Pennsylvania 
Constitution of 1874, Art. 5, §12, which, on its face, 
repeals the Act of April 15, 1835, in so far as it 
could be deemed to relate to the City of Philadel-

an increase of civil jurisdiction or conferring political du­
ties, as may be made by law. In Philadelphia the office 
of alderman is abolished.”  (Amendment of November 2, 
1909.)

Argument



18
Argument

pink.- See, '1- Sutherland, -Statutory Construction, 
§2025 (ed. Ed.). That the Court below was misled 
by this argument of the District Attorney, predi­
cated upon a distorted citation of the Act, is patent 
from the Court’s ruling in dismissing petitioner’s 
exception No. 4, wherein the Court said 16a) :

‘ ‘ In that: Act of 1835 there is no provision as 
to. the limitation upon the jurisdiction by vir­
tue of the amount in controversy.”

Repeated urgings by appellants’ counsel that the 
Commonwealth, was citing the A ct. improperly and 
omitting key language from its citation went un­
heeded by the learned Court below. Divinatio, non 
interpretatio esty quae omnia recedit a liter a.

There is vastly more involved in this controversy 
over the Magistrate’s jurisdiction than a “ One 
Hundred Dollar Misunderstanding”  between appel­
lants and the Commonwealth. The issue strikes at 
the vitals of the Magistrate’s jurisdiction ab initio 
to hear these charges against appellants.

The plain language of the Act of 1835 shows that 
it grants power to hear actions of debt for breach 
of any ordinance only. The magistrate1 herein did 
not entertain or hear an action of debt, but a crimi­
nal prosecution. Even assuming, arguendo, that the 
Commonwealth’s position is sound and the Act of 
1835, which is silent on magistrates, the office being- 
then unknown, prevails over the Constitution of 
1874, which created the office and sets forth its 
jurisdiction, and the dollar amount is not a juris­
dictional limitation, the statute, nevertheless, by its



Argument
19

plain terms, still could not be authority for juris­
diction in this case since it is limited to cases com­
menced and heard as civil actions of debt. The 
jurisdiction of the magistrate must be explicit in 
the statute. Byers v. Olander, 161 Pa. Superior Ct. 
165 (1947).

Appellants submit that the Act of 1835 must be 
construed to authorize the hearing of one hundred 
dollar ordinances exclusively. Otherwise, the con­
stitutional interdiction in Art. 5, §12, against an 
increase in the civil jurisdiction of the magistrate 
would render the statute unconstitutional since it 
would allow Philadelphia magistrates to hear all 
actions for breach of city ordinances without re­
gard to . the amount in controversy.

If this were so, the magistrate could hear a case 
involving any ordinance and impose any penalty 
provided. This, the Constitution of Pennsylvania 
expressly prohibits in Philadelphia. And because 
of such prohibition, Art. 5, §12, of the Constitution 
must be deemed to have effected a pro tanto re­
peal of the Act of 1835 as it relates to Philadelphia.

“ . . . statutes may be nullified, in so far as 
. future operation is concerned, by a constitution 
as well as by statute; and the constitution, as 
the highest and most recent expression of the 
law making power, operates to repeal, not only 
all statutes that are expressly enumerated as 
repealed, but also all that are inconsistent with 
the full operation of its provisions.”  12 C.J., 
Constitutional Law, §97, pp. 725-726.



20
Argument

Thus, it is patent that Art. 5, §12 of the Consti­
tution intended to curtail the broad grant of the 
Act of 1835. The office of aldermen was abolished 
therein, and the office of magistrate created. As 
such, magistrates can have no power not author­
ized by the organic instrument of their creation.

‘ ‘ Since the Constitution of its own vigor, and 
as the sole source of all delegated authority, 
vests the judicial power in designated tribu­
nals, it follows that the essentials of jurisdic­
tion there conferred are unalterable and inde­
structible, and can neither be increased nor 
diminished by the legislature . . . ”

12 C. JConstitutional Law, §260, p. 816.
It is thus submitted that the Act of April 15, 

1835, P. L. 291, 42 P.S. §291, gives no authority to 
Philadelphia magistrates for the office was non­
existent until 1875. The authority of magistrates 
to hear cases of ordinances rests solely on the Con­
stitutional grant of Art. 5, §12. That grant is a re­
stricted grant and cannot be enlarged by any stat­
ute. 12 C.J., Constitutional Law, supra. Were it 
otherwise, the Act of December 9, 1955, P. P. 817, 
§1, 42 P.S. §241, which provides:

“ The aldermen, magistrates and justices of 
the peace, in this Commonwealth, shall have 
concurrent jurisdiction with the courts of com­
mon pleas of all actions arising from contact, 
either express or implied, and of all actions 
of trespass, wherein the sum demanded does 
not exceed five hundred dollars ($500.00), ex­
cept in cases of real contract, where the title



Argument
21

to lands or tenements may come in question.”  
As amended 1955, Dec. 9, P. L. 817, §1.

would have enlarged the magistrate’s jurisdiction 
to five hundred dollars. This Act is ineffective as 
to Philadelphia magistrates! because of the consti­
tutional proscription against an increase in civil 
jurisdiction. Likewise, any statute, or group of 
statutes, which would increase the jurisdiction in 
excess of the constitutional limit of one hundred 
dollars is ineffective for that purpose.- It is only 
because Art. 5, §12, allows magistrates to hear 
cases formerly heard by aldermen that a magis­
trate has any authority to hear ordinance cases at 
all. The harm to the defendants was catastrophic. 
We will not here brief the defects in the magistrate 
system. Of. Rutenberg v. Philadelphia, 329 Pa. 26. 
To try the defendant before a magistrate, when he 
is entitled to a court of record, is to shear him of 
the law’s protection. The Latin expresses the situa­
tion succinctly—horribile dictu.

1. THE APPELLANTS’ PREVIOUS ACQUIT­
TAL BARS THEIR SECOND CONVICTION 

FOR THE SAME ACT

The appellants committed one act. That act was 
refusing to leave the premises after being directed 
to do so by a police officer. At the time of their 
arrest, they were told they were charged with dis­
orderly conduct, breach of the peace and trespass­
ing. At the outset of their first trial before* the



22
Argument

Magistrate, the charge of trespassing was not 
urged by the Commonwealth. At the conclusion of 
the trial the Magistrate pronounced all defendants 
guilty of disorderly conduct. He made no pro­
nouncement on the other charges nor did lie reserve 
judgment thereon. An appeal was subsequently al­
lowed to the Court of Quarter Sessions by Wein- 
rofct, J. on November 11, 1963. The trial de novo 
was then scheduled for January 24, 1964 before 
(luerin, J. The defenses raised included, inter alia: 
that the defendants were petitioning their govern­
ment, an activity protected by the Constitutions of 
Pennsylvania and the United States; that the stat­
ute was void for indefiniteness on its face; that 
the statute failed to give adequate notice that the 
act of the petitioners wras proscribed; and, that 
on the whole record there was no evidence tending 
to show guilt and hence the due process clause of 
the 14th Amendment required a finding of not 
guilty.

The trial judge entered a verdict of not guilty aw 
to all defendants. The docket entries from the for­
mer case are printed in the record pursuant to 
Rule 34 (la-2a).

In the instant case, the Court was asked to take 
judicial notice of its own records and apply the 
rule of autrefois acquit. The Commonwealth ar­
gued that since the offense charged was different, 
the nde did not apply. The appellants, of course, 
conceded that the charge was different in name. 
It caii be noted, however, that the present charge 
is, in effect, the former charge of trespassing in



Argument
23

more sophisticated terminology. The Common­
wealth argued that the failure to leave constituted 
an unauthorized use of the building, presence and 
use becoming synonomous. The appellants relied 
on the previous decisions in this state to the effect, 
that where one act constitutes several offenses and 
the state elects to prosecute for some, but not all 
of them, it cannot thereafter institute new prose­
cutions for the remainder. Commonwealth v. Bishop, 
182 Pa. Superior Ct. 151; Commonwealth v. Comber, 
374 Pa. 57. This contention was not met or an­
swered by the Court below'. Instead, upon being 
orally advised, by the District Attorney, that the 
prior proceeding had been upon a writ of habeas 
corpus, the Court decided the issue on that ground 
despite counsel ’s oral advice; that no writ of habeas 
corpus had ever been sought by tlie petitioners, or 
over issued.

Finally, the Commonwealth argued that Excep­
tion No. 13 was not sustainable on certiorari with­
out citing any authority. This Court has made clear 
that such a plea is tested by the record. Common­
wealth v. Comber, supra, and the cases cited there­
in..

This issue was raised before the Magistrate and 
argued.by counsel. The District Attorney counter- 
argued bv reading into the record excerpts from 
the transcript of the previous trial to show that the 
offense, disposed of earlier in the Court of Quarter 
Sessions, was .not the same in name. The' District 
Attorney also argued that the offense of breach 
of the peace had been left, open by the Magistrate



from his hearing on September 27, 1963. Counsel 
re-argued that breach of the peace could not be still 
open unless the Magistrate had violated the Act of 
May 9, 1949, P. L. 1028, Sec. 14, 42 P.S, 1144(d) 
and (e) requiring prompt decisions.

In the Court of Common Pleas, the District At­
torney argued that such a plea was not made be­
fore the magistrate in the necessary old law French. 
Such words have not been necessary since the Act 
of March 31, 1810, P. L. 427, Sec. 30, 19 P.S. 464, 
which provides:

“ In any plea of autrefois acquit or autrefois 
convict, it shall be sufficient for any defend­
ant to state he has been lawfully convicted or 
acquitted, as the case may be, of the offense 
charged in the indictment.” 4

Such a plea is available for summary offenses, 
Commonwealth r. Beatty, 91 Pa. Superior Ct. 37; 
Mars teller v. Marsteller, 132 Pa. 517; Common­
wealth v. Bergen, 134 Pa. Superior Ct. 62. In the 
instant case, the Common Pleas Court had before 
it the information do cribing the acts constituting 
the second offense, and the entire proceeding of the 
first trial. The most cursory examination would 
have revealed the identity of the act alleged to have 
been committed in both cases. The decision of the

4 The reporter’s notes to this Act sav,
“ This section proposes in favor of the,accused, to 

simplify the pleas of heretofore acquitted, and here­
tofore convicted, and thus relieve them from all tech­
nical embarrassments. ’ ’

24
Argument



Argument
25

Court below that it need not look at these records 
was patently erroneous.

The Commonwealth does not dispute that the 
present conviction was for the identical act for 
which appellants were previously tried and ac­
quitted. It urges that, as long as the charge varies 
in name, prior acquittals are of no effect. The 
Commonwealth may prosecute for one act as often 
as it can change the name of the charge. Such 
concept is completely hostile to our laŵ  and to our 
democratic traditions. Little can be added to the 
opinion of Justice Black in Bartkus v. Illinois, 359 
IT. S. 121, 152.

Our traditional abhorrence of the misuse of the 
state’s immense resources against an individual by 
repetitious prosecutions and suits has resulted in 
an eminent line of opinions to the effect that a 
criminal prosecution bars a later suit for a penalty 
which arises out of the same act. United States r. 
JniFranca, 282 IJ. K.. 5(58; United Slates r. (1 idden 
Un., 78 F. 2639; United Slates r. dun, .38 F. 2d. 593; 
United States v. Ulrici, 102 U. S. 612; United States 
v. Charteau, 102 U. S. 602; United States in Seattle 
Brewing Co., 135 F. 597; United States v. Oates, 
Fed. Cas. No. 15, 191 ; United States v. McKee, Fed. 
Cas. No. 15, 688.

This case was a second criminal prosecution ar­
raying the pow'er and resources of the state against 
such meagre resources as the appellants could com­
mand. How many times must this unequal struggle 
l)e waged? How many times can appellants be ar­



26
Argument

rested! How many times must they put down then- 
daily occupations and take up their defense! Their 
resources are exhausted, but the resources of the 
state are inexhaustible. Shall there be trial by law 
or trial by ordeal!

CONCLUSION

On its face, this record shows the conviction of 
appellants for a comparatively minor offense. Yet, 
iii such a conviction the full force and weight of 
the Commonwealth becomes exposed, and the true 
issues surrounding the conviction emerge into the 
light. Appellants, at the time of their arrests, were 
protesting, as the Constitution of the United States 
allows them to do, certain shortcomings in the 
housing relocation program of the City of Phila­
delphia. The inadequacies of this program fell 
mainly on the shoulders of Negro residents living- 
in sub-standard housing. Because of their protest, 
they Were twice arrested, and the second time 
charged with violating the City ordinance. This 
was. unmistakably an endeavor by Commonwealth 
and City officials to quell the voice of protest.

If this Court allows these illegal convictions to 
stand, a serious impediment and an enormous in­
cubus will be engrafted onto the administration of 
justice in this Commonwealth. For the appellants, 
who have been singled out for prosecution because 
of the proper exercise of their Constitutional



A rgument
27

rights, recognize. that this Court has the power to 
undo the harm that has been done to them below. 
It was Edmund Burke, in his Letter to the Sheriffs 
of the City of Bristol on the Affairs of America, 
written April 3, 1777, who stated

"People without much difficulty admit the 
entrance of that injustice of which they are 
not the immediate victims. In times of high 
proceedings it is never the faction of the pre­
dominant power that is in dangerf for no tyr­
anny chastises its own instruments. It is the 
obnoxious and the suspected who want the pro­
tection of the law . .

The "high proceedings,”  which resulted in the 
convictions of the appellants, without an iota of 
evidence to support such convictions, consisted of 
a purposeful and systematic effort to ignore the 
law oil magistrate’s jurisdiction, the law on prior 
acquittal, the law on using criminal process to en­
force civil penalties, and to mislead the Court be­
low on the nature of its scope of review on cer­
tiorari. The great English philosopher Herbert 
Spencer, in his Social Statics, cautioned that, " le ­
gal forms are commonly used for purposes of op­
pression”  and called for an end to the practice.6

Appellants herein, similarly, call upon this Court 
to reverse their convictions and, thus, vindicate the

r> Burke’s Politics: Selected Writings and Speeches
.(Ed. by Ross, J. S. Hoffman and Paul Levack, Alfred A. 
Knopf Co.. New York 1949), pp. 98-99.

e Spencer, Social Statics, p. 113 (London, 1892).



28
Argiitneni

proper administration of justice, which does not 
countenance the use of judicial machinery for the 
purpose of oppression.

Appellants seek no special favors or considera­
tions. They ask only that any proceedings against 
them be according to our law, and that their rights 
be the same as the rights of their fellow citizens. 
This is their entitlement under our heritage. Yet 
it would be error to assume that the rights asserted 
by the appellants serve only their interests. The 
questions presented are ones of great public im­
portance concerning which there has been much un­
certainty. Commonwealth v. Ashenf elder, 413 Pa. 
517. Despite much criticism, the minor judiciary 
will be part of our judicial system for yet some 
time. Its duties, and the limitation of its powers, 
should be made clear. It is apparent that the offi­
cials and the courts of the most populous city of 
the Commonwealth misapprehend the duties and 
the limits of the Magistrates.

In addition, our high principles of justice .and 
orderly procedure become a mocking slogan if 
they are not available to those who' require them. 
Such principles must be continually pronounced 
and applied else they perish in the whirlpool of ex­
pediency. The words of our Court, though written 
a hundred years ago, are still appropriate:

“ All men are liable1 to' err, and the law-mak­
ing power, with the best motives which the 
purest hearts furnish, may err. It is here, 
however, in this Court, of last resort, that .the



Argument
29

private citizen must look for the preservation 
of his private rights. Here is the ark of his 
safety, and the goal of his peace; and when the 
humblest citizen comes into this Court with the 
constitution of his country in his hand, we dare 
not disregard the appeal.”  Broivn v. Hummel, 
6 Pa. 86 at 97.

Respectfully submitted,
W il lia m  L ee A kers ,
H arry L ore,

Attorneys for Appellants.



Docket Entries
la

RECORD

IN THE COURT OF COMMON PLEAS NO. 2 
OF PHILADELPHIA COUNTY

No. 4604 December Term, 1963

Commonwealth of Pennsylvania 

vs.

Jerome Dortort, -Jake Tiles, Frederick Feldman, 
Frank Delano Haley, Geoffrey Lobenstine, Wal­
ter Lively, Margaret Ann Neissner, Florence 

Johnson, Susan Mayer, and Lillian Mirmak

RELEVANT DOCKET ENTRIES

‘•■‘•Docket Entries of Former Acquittal Pursuant 
To Rule 34”

C ourt of Q uarter  S essions

Misc. No. 759 October Term, 1963



2a
Docket Entries

10-4-63, Jerome Dortort et al. Appeal Summary 
Conviction Disorderly Conduct.

10-22-63, Room 646, 10:00 a.m. Held under advise­
ment. Weinrott, J.

11.-11-63, Appeal allowed. Weinrott, J.
1-24-64, Not guilty—all monies returned. Guerin, J.

Tx C omm  on I ’ okas No. 2

No. 4604 December Term, 1963

4604
W. 1j. Akers App. for Deft.

Feb. 20, 1964, Petition for Writ of Certiorari.

Feb. 20, 1964, Rule upon the Commonwealth of 
Pennsylvania and Magistrate William Hagan 
to show cause why Writs of Certiorari should 
not issue. All proceedings to stay meanwhile.

Eo die, Petition filed.
Mar. 12, 1964, Rule absolute. The Prothonotary 

shall issue the Writ of Certiorari directed to 
Magistrate William Hagan, requiring him to 
certify to this Court the record within 10 days. 
All proceedings to stay meanwhile.

Eo die, Order entered.
Mar. 18, 1964, Writ of Certiorari to Magistrate W il­

liam Hagan Ret. 1st Monday of April 1964.



Docket Entries
3a

Mar. 26, 1964, Written record opened—returned to 
office and filed.

Apr. 7, 1964, I)efts., by their counsel, file excep­
tions to the return of Magistrate filed.

May 22, 1964, Petition dismissed as to all defend­
ants. Guerin, J .

May 29, 1964, Execution of sentences affirmed May 
22, 1964 stayed for 30 days in order for- defend­
ants to petition for Certiorari from Supreme 
Court—order filed.

Aug. 4, 1964, Certiorari from Superior Court, Oct. 
Term 1964 #572 brought into office and filed. 
Jerome Bortort et al. appellants. Fee pd. 
$12.00.

Aug. 18, 1964, Acceptance of Charles L. Guerin, 
Judge and of Mildred G. Kelly, stenographer 
of notice of Appeal filed.

Oct. 27, 1964, Opinion filed.



4a
M agist rate’s Transcript

II.

MAGISTRATE’S TRANSCRIPT

Pursuant to the mandate of this Honorable Court, 
dated March 18, 1964, I, William Hagan, Magis­
trate of the City and County of Philadelphia, 
Court No. 15, do hereby certify and send, together 
with the Writ of Certiorari, the record of the afore­
said action with all things touching the same:

Defendants, Jerome Dortort, Jake Jiles, Freder­
ick Feldman, Frank Delam> Haley, Geoffrey Loben- 
stine, Walter Lively, Margaret Ann Neissner, Flor­
ence Johnson, Susan Mayer, and Lillian Mirmak, as 
well as one Joseph Harvey, were charged in a 
sworn complaint, executed by and sworn to under 
the oath of Frank Rizzo, Deputy Commissioner of 
Police of the City of Philadelphia, an attested copy 
of which complaint is hereunto attached 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 Coordinator, Room 
210, City Hall, Philadelphia, Pennsylvania, and en- 
teied into said City Property, and remained there­
in, without authority, and refused to leave the same 
when lawfully requested so to do, the said offenses 
being committed on the 20th day of September, 1961!



at and in Boom 210, City Hall, Philadelphia, Penn­
sylvania.

Pursuant to- said sworn complaint and intonua 
lion, 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 Boom 
625 City Hall, Philadelphia, Pennsylvania on Feb­
ruary 4, 1964. The original summonses and pre­
cepts as to each defendant are hereunto attached 
and made part hereof.

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 Febru­
ary 1.4, 1964, and who, after being duly sworn ac­
cording to law, testified.

All of the defendants, with the sole exception of 
defendant, Joseph Harvey, appeared and were rep­
resented by counsel and were given an opportunity 
to examine all witnesses. None of the defendants 
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

5a
Magistrale’s Transcript



Prison. As to the charge of breach of peace, each 
defendant was discharged.

1 hereby certify that the above is correct return 
and transcript from the docket of my Court.

Witness our said Magistrate and the official seal 
of said Court on the 26tli day of March, 1964.

William Hagan
Magistrate Court No. 15 

( Seal)

Get
Magistrate’s Transcript

AFFIDAVIT AND INFORMATION FOR 
ISSUANCES OF CRIMINAL 

SUMMONS

City and County of Philadelphia,
Commonwealth of Pennsylvania, ss:

Frank Rizzo, being duly sworn according to law, 
deposes and says: that lie is a Deputy Commission­
er of Police of the City of Philadelphia; that with­
in the City and County of Philadelphia, State of 
Pennsylvania, and within two years last past, to 
wit: on or about Friday, September 20, 1963, and 
in the offices of the Development Coordinator, 
Room 210, City Hall, Philadelphia, Pennsylvania; 
being a department of the government of the City 
of Philadelphia, the following named persons to wit: 
Jerome Dortort, Jake Jiles, Frederick Feldman, 
Joseph Harvey, Frank Delano Haley, Geoffrey 
Lobenstine, Walter Liveley, Margaret Ann Neisser, 
Florence Johnson, Susan C. Mayer and Mary Lilli­



an Minnak, did commit breaches of the peace, caus­
ing consternation and alarm which disturbed the 
peace and quiet of the community all of which was 
against the law and against the peace and dignity 
of this Commonwealth.

And, deponent further avers that the said above- 
named person on said date and at said place did in 
violation of Chapter 10-500, Section 10-501 (2) (h) 
of the Philadelphia Code of General Ordinances use 
a City facility, namely; the office of the Develop­
ment Coordinator, Room 210, City Hall, Philadel­
phia, Pennsylvania, and entered into said City 
property, and remained therein, without authority, 
and refusing to leave the same when lawfully re­
quested so to do, all of which was against the law 
and against the peace and dignity of the City of 
Philadelphia and this Commonwealth.

Wherefore, deponent requests the issuance of a 
criminal summons against each of the above named 
persons summoning each of them to appear in the 
manner and form as prescribed by the Act of As­
sembly No. 617, approved September 18, 1961.

All of which deponent avers to be true to the best 
of his knowledge, information and belief.

(s) Frank Rizzo 
Frank Rizzo

Sworn to and subscribed before me this 30th day 
of January, 1964.

Milton S. Logan 
Notary Public 
[Illegible]

7a
Magistrate’s Transcript



True and attested copy.
William Hagan

Magistrate Court No. -l~>

■8 a
Magistrate’s Transcript

POLICE CRIMINAL 'SUMMONS
No. 9581

Magistrates Court No. 15, County of 
Philadelphia

To Jerome Dortort, 3718 Spring Garden St.
Complaint having been made this day by Deputy 

Commissioner Frank Rizzo that you charged with: 
Breach of the Peace and Viol. City Ordinance 
10-501 (2) ( in.

You are hereby summoned to appear before me, 
Magistrate of Court No. 15, at Room 625, City Hall, 
Central Police Court, on the till day of February, 
1964, at 2 o ’clock p.m., to the end that an investi­
gation may be made of the said complaint and up­
on your failure to appear at the time and place 
herein mentioned you are liable to a fine not ex­
ceeding one hundred dollars ($100).

Date at 11:00 aim. this 31st day of January, 1964.
Signed William Hagan

[Note: Nine other Summonses, being identical, 
are omitted.]

Jerome Dortort, Complaint filed on 1-31-64 by 
Deputy Commissioner Frank Rizzo charges Breach



Magistrate’s Transcript
9a

of the Peace and violation City Ordinance 10-501 
(2)(h), Criminal Summons 9581 issued on 1-31-64 
by Magistrate Hagan.

Date: 2-4-64, Place: Room 254 City Hall.

A ttys, for defendant: Wm. Akers, Harry Lore, 
David Cohen, Edwin Wolf.

Atfy. for Prosecution: Chas. Bogdanoff, A.D.A.

This case was turned over to United States Dis­
trict Court.

This case was returned to- Magistrate’s Court and 
was heard 2-14-64 at 625 City Hall.

Witnesses

Richard H. Buford, 402 S. 9th St.

Deputy Commissioner Frank Rizzo.

Loretta Logan, 5748 Walnut St.

Inspector' Frank Nolan.
Disposition of Indictable Offenses

Defendant discharged.
Disposition of Summary Offenses

Defendant Jerome Dortort found guilty of Viol. 
City Ordinance 10-501 (2)(h) and sentenced to pay 
a fine of $50.00 and costs of $2.50 or imprisonment 
for 10 days in C.P.

[Note: Nine other Statements, being identical, 
are omitted.]



10a
Exceptions

III.

DEFENDANTS BY THEIR COUNSEL, FILE 
THESE EXCEPTIONS TO THE RETURN OF 

THE MAGISTRATE

1. The return shows a criminal prosecution for 
a civil offense.

2. The return shows the prosecution was insti­
tuted in the name of the Commonwealth who is not 
a proper party to do so.

3. The return shows the prosecution was con­
ducted by the District Attorney who had no power 
to so conduct.

4. The return shows that the amount involved 
was $300.00 whereby the Magistrate has no juris­
diction to adjudicate it.

5. The return shows the summons were issued 
for a hearing on February 4, W(>4 and that the 
hearing was actually held ten days later.

6. The return fails to show service of the sum­
mons on any defendant.

7. The return fails to show any finding of fact 
or 'to describe how the offense was committed.

8. The return fails to summarize or allude to 
any testimony.



Exceptions
11a

9. The return fails to show that any of the de­
fendants were identified as being at th© place of 
the alleged offense.

10. The return fails to show the time the alleged 
offense was committed.

11. The return shows a conviction without any 
evidence.

12. The return shows the defendants were 
charged inter alia with having “ remained there­
in”  which is not an act prohibited by the Ordinance 
under which they were convicted.

13. The return indicates that the defendant’s 
plea of autrefoi acquit should have been sustained 
by reason of their previous acquittal for the same 
act in the Court of Quarter Sessions, Misc. No. 
759, October Term, 1963, Guerin, J. presiding, Jan­
uary 24, 1964.

Wherefore, the defendants pray this Court to 
sustain this appeal and reverse their convictions.

William hoe Akers
Attorney for Defendants



12a
Opinion

IV.

HEARING OF M AY.22, 1964

Room 443(H) City Ilall, Philadelphia, 
Pennsylvania, Friday, May 22, 1964

Before: Hon. Charles L. Guerin, J.

Appearances

Charles Jay Bogdanoff, Esq. (Acting as City 
Solicitor), for the City of Pliila.

William Lee Akers, Esq., for the Petitioners.

A rgnment

THE COURT: The proceedings in this matter 
were originated by the filing with Magistrate Ha­
gan of an affidavit taken by Deputy Commission­
er of Police, Frank Rizzo, in which he complained, 
first, that the persons named in these proceedings 
as- defendants were guilty of breach of the peace; 
and, secondly, they were guilty of violating a City 
Ordinance, Section 10-501 (2) (h) of the Code.

The respondents or defendants subsequently ap­
peared before Magistrate Hagan, after intervening



13a

delays which it is not necessary to recount herein, 
and at the conclusion of the hearing Magistrate 
Hagan discharged all the defendants of any crimi­
nal responsibility for what they were alleged to 
have done.

As a portion of his return, lie indicated that he 
had imposed a fine of Fifty Dollars and costs upon 
each of the defendants on the violation of the above- 
mentioned provision of the City Charter, which 
provides for a fine of not less than Fifty Dollars 
nor more than Three Hundred Dollars, together 
with imprisonment not exceeding ninety days, if 
the fine.and costs are not paid within ten days.

This proceeding has some unusual features in 
that it was instituted in the name of the Common­
wealth of Pennsylvania and it embodies two differ­
ent sets of complaints, one clearly within the crim­
inal law, and the second, clearly within the civil 
law.

Now, whether that is fatal or not is for me to 
deterinine, and 1 hold that it is not fatal, if it was 
error. The parties appeared and had their hear­
ing. Undoubtedly, Magistrate Hagan had jurisdic­
tion to hear the complaint with respect to- breach 
of the peace, had that alone been complained o f ; 
and, subject to a reservation which I will dispose 
of later, the Magistrate had prima facie jurisdic­
tion to hear the alleged violation of the City Ordi­
nance.

So that I see no error, except perhaps in the 
caption of the case which, on the documents before

Opinion



14a
Opinion

me, appears to be Commonwealth of Pennsylvania 
against Jerome Dor-tort and others, Court of Com­
mon Pleas No. 2, December Term, 1963, No. 4604.

It has been stated that the City Solicitor, Mr. 
Ivins, appears before us on behalf of the City of 
Philadelphia and has moved to have the caption 
amended so as to make it read City of Philadel­
phia against the various defendants. I do not have 
before me a written motion. If there is such a 
written motion, I will allow it. If there, has been 
no such written motion filed, I will accept the oral 
motion and direct that the caption of the case be 
amended to read City of Philadelphia against the 
various named defendants.

The matter now comes before me upon excep­
tions filed by defendants to the Return of the 
Magistrate, as to the allowance ,o.r making absolute 
of a Rule to Show Cause why a Writ of Certiorari 
should not issue as to each defendant.

So- that. I have before me for consideration only 
the question of the regularity of' the proceedings 
before the Lower Court.

1 shall now discuss and dispose of all Exceptions 
filed by the defendants.

Exception No. 1 is: “ The Return shows a crimi­
nal prosecution for a civil offense.”

1 have heretofore indicated that the Return 
shows that the criminal prosecution had been dis­
posed of and I have before me only the regularity 
of the proceedings with respect to the civil offense.



Opinion
15 a

Exception No. 2 reads: “ The Return shows the 
prosecution was instituted in the name of the Com­
monwealth who is not a proper party to do so.”

I have indicated that the Commonwealth was a 
proper party to institute the alleged violation of 
the criminal law and, while it is not a proper party 
seeking to recover a penalty for violation of a City 
Ordinance, that is merely a defect in form which 
may be cured at any stage of the proceedings, and 
1 have allowed that defect to be cured by changing 
the caption of the case from Commonwealth of 
Pennsylvania to City of Philadelphia.

Exception No. 3: “ The Return shows the prose­
cution was conducted by the District Attorney who 
had no power to so conduct.”

That exception has not been urged, but even had 
it been urged it would have no merit because who 
conducts the prosecution is a matter for the re­
sponsibility of the parties seeking to recover for 
alleged misconduct and has no bearing upon the 
merits of the case.

Exception No. 1: “ The Return shows that the 
amount involved was $300.00, whereby the Magis­
trate has no jurisdiction to adjudicate it.”

The Magistrate, under a provision of the law of 
Pennsylvania which I do not here cite because I 
regard it as unnecessary, does indeed have limited 
jurisdiction, and that limit is to where the amount 
in controversy does not exceed $100.00. However, 
there is an earlier Act of Assembly, the Act of



1835, which has been referred to in argument which 
does give general jurisdiction to Magistrates or 
Justices of the Peace or Aldermen and so forth, 
to entertain jurisdiction to recover items such as 
that sought to be recovered in this case. In that 
Act of 1835 there is no provision as to the limita­
tion upon the jurisdiction by virtue of the amount 
in controversy.

My view of the. status of this matter is that the 
Magistrate, not having exceeded the. jurisdictional 
amount to which he is limited, did not thereby lose 
jurisdiction; he retained jurisdiction under the Act 
of 1835, and the disposition made by him of impos­
ing a fine of Fifty Dollars and costs was well with­
in the jurisdictional limits of a Magistrate. I, 
therefore, dismiss this Exception.

Exception No. 5 was not urged; in fact, ;it; was, 
in effect, withdrawn, as was Exception No. 6.

Exception No. 7 reads: “ The Return fails to 
show any finding of fact or to describe lmy. the 
offense was committed.”

Exception No. 8 reads: “ The Return fails to sum­
marize or allude to any testimony.”

Exception No. 9 reads! “ The Return fails to 
show that any of the defendants were identified 
as being at the place of the alleged offense.”

Exception No. 10 reads: “ The Return fails to 
show the time the alleged offense was committed.”

Exception No. 11 reads: “ The Return shows a 
conviction without any evidence.,” , . - .

16a
Opinion



Opinion
17 a

Exception 12 reads: “ The Return shows the de­
fendants were charged inter alia with having ‘ re­
mained therein’, which is not an Act prohibited by 
the Ordinance under which they were convicted.”

All of these Exceptions relate to the merits of the 
controversy and are not properly reviewable upon 
a Writ of Certiorari. For error of the nature com­
plained of in these Exceptions, there is a remedy 
provided, and that remedy is by appeal to the 
Court of Quarter Sessions, not to Common Pleas 
Court, and the Court of Quarter Sessions would 
then have jurisdiction to hear the matter de novo 
and make its findings of fact and of guilt or inno­
cence.

For these reasons, those Exceptions are dis­
missed.

Exception No. Id reads: “ The Return indicates 
that the defendants’ plea of autrefoi(s) acquit 
should have been sustained by reason of their pre­
vious acquittal for the same Act, in the Court of 
Quarter Sessions, Miscellaneous, No. 759, October 
Term, 1.963, Guerin, J. Presiding, January 24, 
1964.”

This Exception has no merit because it has no 
basis in fact. At the hearing which 1 held on Jan­
uary 24, 1964, I found that the defendants were 
not properly charged with disorderly conduct and, 
therefore, I granted a Writ of Habeas Corpus and 
discharged the defendants of the offense of dis­
orderly conduct, but there still remained open and 
undetermined a charge of breach of the peace be-



18a
Opinion
Order

Certificates of Stenographer and Court '

fore the Magistrate who had then made his Return 
to me. And 1 noted then for the record that I took 
no action with respect to the offense of alleged 
breach of the peace, and indicated that that charge 
was open for further disposition by the Magistrate 
before whom complaint had been made.

For all of these reasons, the Exceptions are dis­
missed.

Petition is dismissed.

I hereby certify that the proceedings and evi­
dence are contained fully and accurately in the 
notes taken by me on the trial of the above cause, 
and that this copy is a correct transcript of the 
same.

Mildred G. Kelly 
Official Stenographer

The foregoing record of the proceedings upon 
the trial of the above cause is hereby approved and 
directed to be filed.

Judge