Casale, In re

• Decision Date: 17 November 1986
• Citation: Casale, In re, 517 A.2d 1260, 512 Pa. 548 (Pa. 1986)
• Parties: In re Handwriting Exemplar of Neil CASALE, Appellant.
• Court: Pennsylvania Supreme Court

Page 1260

517 A.2d 1260

512 Pa. 548

In re Handwriting Exemplar of Neil CASALE, Appellant.

Supreme Court of Pennsylvania.

Argued May 14, 1986.

Decided Nov. 17, 1986.

[512 Pa. 549] John P. Campana, Williamsport, for appellant.

William P. Carlucci, Kenneth A. Osokow, Asst. Dist. Attys., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

HUTCHINSON, Justice.

By allowance, Neil Casale(appellant), appeals an order of Superior Court quashing, as interlocutory, his appeal from the order of the Court of Common Pleas of Lycoming County.In response to a motion filed "ex proprio motu ", i.e. "of his own accord", by the District Attorney of Lycoming County, Common Pleas issued a rule to show cause and then ordered appellant to appear at the office of the District Attorney for the purpose of submitting to a handwriting exemplar examination as requested by the Commonwealth.Because appellant raises a question of the court's jurisdiction to entertain such a motion, we granted leave to appeal.We now hold that, while Common Pleas has jurisdiction to determine controversies of the general class to which this case belongs, it lacks the power to act until that jurisdiction has been invoked in accordance with the pertinent rules of criminal procedure.SeePa.R.Crim.P. 101.

During the course of a police investigation into a burglary and robbery committed within the City of Williamsport in Lycoming County, a juvenile who participated in the crimes testified, both at his own hearing and at the trial of his brother, that Neil Casale, owner of the Taproom Tavern in Williamsport, had arranged for the burglary and robbery.The juvenile testified that appellant had written the address of the place to be entered on a piece of paper, which was subsequently discovered on those premises by the police.Based on this testimony, the police continued to investigate the robbery and the District Attorney for Lycoming County served a "Motion to Compel Handwriting Exemplar" on appellant in order to compare his handwriting with the handwriting found at the victim's residence.

Relying on the case of Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354(1970), appellant argues, by analogy to subpoenas, that a prerequisite to the issuance of an order to produce a handwriting exemplar is a pre-existing matter or cause pending before the court.Polak addressed that issue under provisions of the Act of June 16, 1836, P.L. 784.That statute has since been repealed and replaced with sections 912and931 of the Judicial Code, which largely refer matters of criminal procedure to our constitutional rule-making power.Act of July 9, 1976, P.L. 586, No. 142, effective 60 days from the date of final enactment of the Act of April 28, 1978, P.L. 202, No. 53.Thus it appears appropriate for us to set forth the present requirements of the Code and our rules of procedure concerning the questions of jurisdiction and judicial power which appellant has raised.

At the outset, we note that the Pennsylvania Constitution provides:

Section 5.There shall be one court of common pleas for each judicial district ...

(b) having unlimited original jurisdiction in all cases except as may otherwise be provided by law.

Pa. Const. art. V, § 5(b).Though modified, this language is reiterated in the Judicial Code, supra:

(a) General rule.--Except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule adopted pursuant to section 503(relating to reassignment of matters) vested in another court of this Commonwealth, the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.

(b) Concurrent and exclusive jurisdiction.--The jurisdiction of the courts of common pleas under this section shall be exclusive except with respect to actions and proceedings concurrent jurisdiction of which is by statute or by general rule adopted pursuant to section 503 vested in another court of this Commonwealth or in the district justices.

42 Pa.C.S. § 931.

Every court of common pleas shall have power to issue, under its judicial seal, every lawful writ and process to or to be served or enforced by system and related personnel as such courts have been heretofore authorized by law or usage to issue.Every judge of a court of common pleas shall have all the powers of a judge or district justice of the minor judiciary.

42 Pa.C.S. § 912.The Judicial Code, however, does not define the term "jurisdiction", leaving us to determine its meaning from our common law history and cases.

In Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270(1974), we discussed this question at some length, noting that:

[J]urisdiction is of two sorts: jurisdiction of the subject matter in the case, and jurisdiction of the parties involved.An objection to lack of subject-matter jurisdiction can never be waived; it may be raised at any stage in the proceedings by the parties or by a court on its own motion.Daly v. School District of Darby Township, 434 Pa. 286, 252 A.2d 638(1969), 21 Am.Jur.2d, Criminal Law § 379(1968)....Jurisdiction of the person, on the other hand, may be created by the consent of a party, who thereby waives any objection to defects in the process by which he is brought before the court.Crown Construction v. Newfoundland American Insurance Co., 429 Pa. 119, 239 A.2d 452(1968);Neifeld v. Steinberg, 438 F.2d 423(3d Cir.1971);21 Am.Jur.2d, Criminal Law § 379(1968).

Id. at 167-168, 314 A.2d at 272.As in Little, there is here no question that the Lycoming Court of Common Pleas has subject-matter jurisdiction over criminal proceedings.However:

[T]o invoke this jurisdiction, something more is required; it is necessary that the Commonwealth confront the defendant with a formal and specific accusation of the crimes charged.This accusation enables the defendant to prepare any defenses available to him, and to protect himself against further prosecution for the same cause; it also enables the trial court to pass on the sufficiency of the facts alleged in the indictment or information to support a conviction.The right to formal notice of charges, guaranteed by the Sixth Amendment to the Federal Constitution and by Article I, Section 9 of the Pennsylvania Constitution, is so basic to the fairness of subsequent proceedings that it cannot be waived even if the defendant voluntarily submits to the jurisdiction of the court.Albrecht v. United States, 273 U.S. 1, 71[512 Pa. 553]L.Ed. 505, 47 S.Ct. 250(1927);Commonwealth ex rel. Fagan v. Francies, 53 Pa.Superior Ct. 278(1913).

Little, 455 Pa. at 168-169, 314 A.2d at 272-273.

Moreover, unlike Little, appellant here has not waived the formal institution of proceedings against him.Thus the Lycoming Court of Common Pleas has not obtained jurisdiction of his person in any of the ways permitted by our Rules of Criminal Procedure, which provide:

Criminal proceedings in courtcases shall be instituted by:

1. filing a written complaint; or

2. an arrest without a warrant when the offense is a felony or misdemeanor committed in the presence of the police officer making the arrest; or

3. an arrest without a warrant upon probable cause when the offense is a felony; or

4. an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when such arrest without a warrant is specifically authorized by statute.

Pa.R.Crim.P. 101.To this the Comment adds:

There are only a few exceptions to this Rule regarding the instituting of criminal proceedings in courtcases.Such proceedings may also be instituted by presentment of an indicting grand jury based on the personal knowledge of the jurors without any bill having been laid before them.See, e.g., McNair's Petition, 324 Pa. 48, 187 A. 498(1936).When great haste is necessary, or for other good cause a preliminary hearing cannot be held, the attorney for the Commonwealth may with leave of court submit a bill of indictment directly to an indicting grand jury, or, in counties which have abolished the indicting grand jury, the attorney for the Commonwealth may with leave of court submit an information directly to the court of common pleas.SeeRules 224and231.

It is quite evident that this rule does not authorize the institution of criminal proceedings by the filing and service of a "motion", neither does it authorize the use of the equitable procedure of petition and rule to show cause, which is the way Common Pleas has here treated the Commonwealth's motion in its attempt to establish jurisdiction over the person of appellant.Both "motions" and "petitions" are ancillary, not original, process.Even on the civil side of our courts, an action brought by petition and rule, neither authorized by statute¹ nor auxiliary to jurisdiction already obtained and not designed to correct the court's own records, is a nullity and confers no jurisdiction on the court.Commonwealth v. Dauphin County, 354 Pa. 556, 47 A.2d 807(1946);Re Correction of Official Records with Civil Action, 44 Pa.Commonwealth Ct. 511, 404 A.2d 741(1979).See alsoWm. Garlick & Sons, Inc. v. Lambert, 446 Pa. 323, 287 A.2d 143(1972).

Appellee's attempt to analogize his motion to an application for a search warrant under Chapter 2000 of the Rules of Criminal Procedure is fruitless.While the rules authorize a law enforcement officer ² to serve a search warrant, such a warrant may only be issued to search for and seize:

(a) contraband, the fruits of a crime, or things otherwise criminally possessed; or

(b) property which is or has been used as the means of committing a criminal offense; or

(c) property which constitutes evidence of the commission of a criminal offense.

Pa.R.Crim.P. 2002.Appellee's...