Commonwealth v. Sack

Opinion by

Judge Mencer,

Several alleged violations of the Pittsburgh Fire Prevention Code¹ (Fire Code) are the seeds of a tangled and blighted case which this Court has been called upon to examine. The case is tangled because of the number of judicial entities which have become involved; it is blighted because none of those entities have yet allowed a hearing of the matter.

The City of Pittsburgh, through its Fire Prevention Bureau, filed what is called a criminal complaint² against J. B. Sack, Pittsburgh Office Furniture (Sack) on May 22, 1975. Before a hearing could be held before the magistrate of the housing court, Sack filed a praecipe for a writ of certiorari with the Court of Common Pleas of Allegheny County. The writ was granted ex parte by Judge Brown, and the magistrate was directed to return to the prothonotary of the common pleas court the record of the proceedings and “all things touching on the subject,” which at this point consisted solely of the complaint. When, two weeks later, the record was received, notice of the writ of certiorari was sent to the City.

Thereafter, the City moved to quash the writ, contending, inter alia, that such writ was not to be issued prior to judgment by the magistrate. On August 15, 1975, Judge Farino quashed the writ of certiorari and directed that a hearing on the Fire Code violations be held before the magistrate of the housing court.³ Prior to a hearing, however, Sack appealed to the Superior Court. The City’s subsequent petition to transfer the appeal to this Court was granted by the Superior Court on October 22,1975.

Before us is the appeal of Sack from the order of Judge Fakino quashing the writ of certiorari and a motion by the City to quash the appeal because it is taken from an interlocutory order. Assuming, without deciding, that Sack’s appeal is not from an interlocutory order, we will dismiss the appeal because the writ of certiorari was improperly granted.

Initially, we note that the housing court, as one of the preserved magistrate’s courts of the City of Pittsburgh,⁴ is subject to the Pennsylvania Rules of Civil Procedure before Justices of the Peace. Specifically, Pa. R.C.P.J.P. Nos. 1009 et seq., dealing with certiorari, apply to the housing court magistrate and proceedings before him. Rule 1009 at all times pertinent to these proceedings provided:

A. Unless he was the plaintiff in the action before the justice of the peace, a party aggrieved by a judgment may file wdth the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction over the parties or subject matter, improper venue or such gross irregularity of procedure, as to make the judgment void. If the party aggrieved by the judgment was the plaintiff in the action before the justice of the peace, he may file a praecipe for a writ of certiorari only on the last mentioned ground.

B. If lack of jurisdiction over the parties or the subject matter is claimed, the praecipe may be filed at any time. Otherwise it shall be filed within twenty (20) days from the date of the judgment.

C. The, praecipe shall identify the judgment complained of and the justice of the peace in whose office the record of the proceedings containing the judgment is filed.

D. The praecipe and the writ shall be on a form which shall be prescribed by the State Court Administrator.⁵

Sack contends that because subdivision B of Rule 1009 apparently provides that a praecipe may be filed before judgment, the writ may properly be issued and the record removed before judgment. We disagree.

Read in its entirety, Rule 1009, together with the other rules dealing with certiorari, does not provide for the filing of a praecipe for the writ before judgment. Subdivision A, for example, refers to a party other than the plaintiff who is aggrieved by a judgment and who may seek a writ claiming that the judgment be set aside. In addition, subdivision C states that the praecipe shall identify the judgment complained of. Rule 1014 provides that, if a court of common pleas finds in favor of the party obtaining the writ, it shall order that the judgment is set aside without prejudice to the cause of action. Clearly, subdivision B of Rule 1009 is limited to defining, the latest time when a praecipe may be filed. It does not deal with how early an application may be made, which is defined by implication elsewhere.

We therefore hold that at the time in question the, rules did not allow a praecipe for a writ of certiorari to be filed before judgment. Because in the instant case a praecipe was filed and a writ of certiorari was issued prior to judgment, the rules were not followed. Thus we must affirm Judge Farino’s quashing of the writ and dismiss Sack’s appeal. We specifically refrain from passing on whether proceedings concerning violations of the Fire Code are governed by civil or criminal rules since the civil rules are the only ones which provide for. writs of certiorari and they have not been followed.⁶ We note, however, that the effect of our holding here will be to replant this case in the housing court so that the hearing process, so long delayed, may begin.

Order affirmed.

Order.

And Now, this 2nd day of February, 1977, the order of the Court of Common Pleas of Allegheny County, dated August 15,1975, is affirmed.

1 Pittsburgh, Pa., The Fire Prevention Code of the City of Pittsburgh (1966) (Ordinance No. 210, approved May 11, 1966).

2 See Beacon Warehouse, Inc. v. City of Pittsburgh, 16 Pa. Commonwealth Ct. 16, 328 A.2d 585 (1974).

3 It appears that at this time Judge Bbown was incapacitated.

4 Pa. Const., art. V (1968), Schedule to Judiciary Article §21. See generally Comay, The City of Pittsburgh Mousing Court, 30 U. Pitt. L. Rev. 459 (1969).

5 This rule was amended January 29, 1976, such amendment to be effective in 20 days, to specifically limit the filing of the praecipe to a period commencing after judgment.

6 Rule 67 of the Pennsylvania Rules of Criminal Procedure abolishes writs of certiorari in criminal proceedings. Thus, if Fire Code violations are governed by criminal rules, the issuance of the writ of certiorari here would likewise be improper.