City of McKeesport v. Dunn , 1924 Pa. Super. LEXIS 97 ( 1924 )

Argued April 18, 1924. A McKeesport magistrate summarily convicted appellant for disorderly conduct, and sentenced him to pay a fine of twenty-five dollars and costs, and in default of payment, to be committed to the Allegheny County jail for thirty days. We cannot consider the merits of the case, but we observe that the magistrate had jurisdiction of the person, and of the charge, and had power to impose the sentence. His transcript shows that on the day of the conviction he received "the fine and costs in full in this case." So the matter stood for five days. With the payment of the fine, the proceeding ended; nothing remained to be heard in the county court, or later in this court. We therefore quash the appeal.

If appellant desired a review of the summary proceeding, he should not have ended it by complying with the sentence; he should have complied with the Act of July 11, 1917, P.L. 771, governing review in such cases; he could not disregard the statute by substituting a method in his judgment more convenient. The statute provides: "In all cases of summary conviction in this Commonwealth, before a magistrate or court not of record, either party may within five days after such conviction, appeal to the court of quarter sessions of the county in which such magistrate shall reside or court not of record shall be held, upon allowance of the said court of quarter sessions, or any judge thereof, upon cause shown; ...... provided, That pending the taking of an appeal by either party, or the allowance or refusal thereof by the court or judge, the fine, or penalty, and costs imposed by the magistrate, or court not of record, need not be paid if bail is entered with one or more sufficient sureties in double the amount of such fine, ...... and costs for the payment thereof, on the refusal of such appeal; or if allowed, on the final disposal of such appeal." Instead of pursuing the method so specified he avers he paid the fine "under protest." What the protest was, does not appear; the receipt of the magistrate on his transcript is unconditional. Such protest has no legal meaning, furnishes no reason for allowing an appeal to the quarter sessions, or, (in Allegheny County) to the county court, and does not render compliance with a sentence within the legal power of the magistrate, any less voluntary than compliance without protest. In Com. v. Oliver, 77 Pa. Super. 580, we held that on appeal from summary conviction, the quarter sessions must hear the case de novo, and we reversed because that had not been done; though the opinion filed in that case, states that the petition on which the appeal was allowed below, averred inter alia, that petitioner had paid the fine "under protest," that fact alone would not justify allowing the appeal and to the extent what is there said gives a contrary impression, the statement is now corrected; mere payment "under protest" in such circumstances does not constitute sufficient ground for the allowance of an appeal.

The petition for leave to appeal to the county court in this case, was filed five days after the sentence had been complied with; it was a voluntary compliance with the sentence: Com. v. Gipner, 118 Pa. 379, 382; Com. v. Yocum, 37 Pa. Super. 237; Haverford v. Armstrong, 76 Pa. Super. 152; the mere fact that the magistrate exercised a power vested in him to impose a jail sentence in default of the payment of the fine did not render the payment less voluntary in the legal sense. This is not a case like Com. v. Barbono, 56 Pa. Super. 637, where the magistrate had imprisoned a man without legal power to do so.

The method provided by the legislature for the review of summary conviction must be followed; we may not sustain the procedure here substituted for that supplied by the statute. The appeal is quashed.

Similar orders were made in the cases of City of McKeesport v. Toohey, April T., 1924, No. 120, and City of Pittsburgh v. Smith, April T., 1924, No. 107.