Com. v. Karash, F. ( 2020 )

J-S08031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERICK W. KARASH, :
:
Appellant : No. 1084 WDA 2019
Appeal from the Judgment of Sentence Entered June 24, 2019
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-SA-0000091-2016
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 3, 2020
Frederick W. Karash (“Karash”) appeals from the judgment of sentence
entered following his citation for having an insufficient number of personal
flotation devices aboard his boat.1 After review, we conclude that this case
falls within the exclusive jurisdiction of the Commonwealth Court. Therefore,
we transfer this appeal to the Commonwealth Court.
In a prior appeal, an en banc panel of this Court summarized the history
underlying the instant appeal as follows:
On May 23, 2016, Waterways Conservation Officer (WCO) James
Smolko observed people fishing from [Karash’s] boat while on
patrol on Lake Erie. After confirming the individuals’ compliance
with fishing license requirements, WCO Smolko conducted a
safety inspection of [Karash’s] boat. WCO Smolko determined
that there were an insufficient number of personal flotation
devices aboard the vessel. He cited [Karash] for violating 30
Pa.C.S.A. § 5123(a)(5). WCO Smolko provided an additional
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1 See 30 Pa.C.S.A. § 5123(a)(5).
J-S08031-20
personal flotation device and permitted [Karash] to continue
boating.
… On June 23, 2016, a magisterial district judge found
[Karash] guilty of the charged offense. [Karash] filed a timely
[N]otice of [A]ppeal to the Court of Common Pleas of Erie County.
Prior to the trial de novo, [Karash] filed a suppression Motion
arguing that the stop constituted an unreasonable search and
seizure under the federal and state constitutions.
The trial court conducted a combined suppression hearing
and trial de novo on September 9, 2016. The trial court denied
[Karash’s] suppression [M]otion, found him guilty, and sentenced
him to a $75.00 fine. [Karash] timely filed a [N]otice of [A]ppeal
to this Court. A divided three-judge panel reversed [Karash’s]
conviction and found that the stop violated [Karash’s]
constitutional right to be free from unreasonable searches and
seizures. Thereafter, this Court granted the Commonwealth’s
reargument [P]etition and vacated the three-judge panel’s
decision. [Karash], who previously [had] appeared pro se, was
represented by counsel for our en banc proceedings. Moreover,
amici curiae filed briefs in support of the Commonwealth and
participated in oral argument.
Commonwealth v. Karash, 192 A.3d 285 (Pa. Super. 2018) (en banc)
(unpublished memorandum at 1-2).
Before the en banc Court, Karash challenged the denial of his
suppression Motion. Id. (unpublished memorandum at 3). Concluding that
deficiencies in the record precluded review, the en banc Court vacated
Karash’s judgment of sentence and remanded for a new suppression hearing
so that a record could be developed on the issues. Id. (unpublished
memorandum at 4-5). However, in so holding, this Court pointed out that
the Commonwealth Court has jurisdiction over such appeals:
Jurisdiction over this appeal properly lies with the Commonwealth
Court. See 42 Pa.C.S.[A.] § 762(a)(2)(i) (“[T]he Commonwealth
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Court shall have exclusive jurisdiction of appeals from final orders
of the courts of common pleas … [for] … [a]ll criminal actions or
proceedings for the violation of any … [r]ule, regulation or order
of any Commonwealth agency[.]”). However, this Court has the
authority to assume jurisdiction over this appeal pursuant
to Pennsylvania Rule of Appellate Procedure 741(a).[2] We
caution the parties, however, that we may transfer any
future appeal in this case to the Commonwealth Court.
Karash, 192 A.3d 285 (Pa. Super. 2018) (unpublished memorandum at 5
n.1) (emphasis and footnote added). Notwithstanding, the instant appeal was
filed in the Superior Court.
The Commonwealth Court has expertise in the law regarding the state
agencies involved in this case. Additionally, we seek to avoid the risk of
establishing conflicting lines of authority between this Court and the
Commonwealth Court. Consequently, we deem it necessary
to transfer Karash’s appeal to the Commonwealth Court for disposition.
Case transferred to the Commonwealth Court. Superior Court
jurisdiction relinquished.
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2Rule 741 provides, in relevant part, that the failure of an appellee “to file an
objection to the jurisdiction of an appellate court on or prior to the last day
under these rules for the filing of the record shall, unless the appellate court
shall otherwise order, operate to perfect the appellate jurisdiction of such
appellate court, notwithstanding any provision of law vesting jurisdiction of
such appeal in another appellate court.” Pa.R.A.P. 741(a).
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J-S08031-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2020
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