City of Philadelphia v. Percival

• Decision Date: 30 October 1975
• Citation: City of Philadelphia v. Percival, 346 A.2d 754, 464 Pa. 308 (Pa. 1975)
• Parties: CITY OF PHILADELPHIA v. Raymond F. PERCIVAL et al., Appellants.
• Court: Pennsylvania Supreme Court

346 A.2d 754

464 Pa. 308

CITY OF PHILADELPHIA v. Raymond F. PERCIVAL et al., Appellants.

Supreme Court of Pennsylvania.

October 30, 1975

Argued Nov. 21, 1974.

Reargued June 26, 1975.

Stephen A. Sheller, Kenneth E. Aaron, Astor & Weiss Philadelphia, for appellants.

Albert J. Persichetti, Deputy City Sol., Philadelphia, for appellee.

Kathleen Herzog Larkin, Dep. Atty. Gen., Harrisburg, for Commonwealth.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN Justice.

This appeal arises from an order of the Commonwealth Court, which affirmed orders of the Court of Common Pleas of Philadelphia declaring that writs of capias ad respondendum should issue for appellants and bail be set for nonpayment of the Philadelphia wage tax. We granted allocatur. The facts surrounding this appeal are as follows.

On September 7, 1972, appellee, City of Philadelphia, filed with the Prothonotary of the Court of Common Pleas of Philadelphia, a praecipe for a writ of capias ad respondendum and a petition for a rule to show cause why a writ of capias ad respondendum should not issue and bail be fixed against appellants, Raymond F. Percival, Abner B. Deckert, Timothy J. Eastburn, Michael J. Nole, William A. MacDonald, Guy W. Harvey, Jr., William E. Gould, Nicholas Buampastore, William H. Hazzard, B. R. Covert, Joseph F. Kenny and E. A. Thomas, for nonpayment of the Philadelphia wage tax. The rule to show cause was filed pursuant to Philadelphia Local Rule of Court 917, subsections (c) and (d), which reads:

'(c) Arrest by capias and respondendum must be specially allowed and bail must be specially fixed by the Civil Motion Court Judge or the weekend Emergency Court Judge, after a hearing on a Petition for Rule to Show Cause, which Petition shall be filed with the praecipe for the writ in the Prothonotary's Office. Service of the petition on the defendant must be accomplished either by personal service or by certified mail, in accordance with Pa.R.C.P. 233((a)) (2).

'(d) Upon the arrest of a defendant by a capias ad respondendum, if the defendant fails or refuses to post bond, he shall be brought forthwith to the Civil Motion Court Judge or the weekend Emergency Court Judge for a determination as to whether or not he shall be released without the posting of said bail.'

The petitions alleged that appellants were non-Philadelphia residents who were employed within Philadelphia and, therefore, liable for the Philadelphia wage tax on the money earned within the city and that appellants were delinquent in the payment of the wage tax. On September 11, 1972, rules to show cause were issued and made returnable on September 26, 1972. On September 26, 1972, appellants, by way of answer, challenged the authority of the Court of Common Pleas of Philadelphia to promulgate Local Rule 917(c) and (d) and also alleged that the Act of June 13, 1836, P.L. 568, § 3, as amended, 12 P.S. § 171 et seq., is in violation of the Eighth and Fourteenth Amendments of the United States Constitution and Article I, § 13, of the Pennsylvania Constitution. On December 28, 1972, the court below entered a final order stating that the writs of capias ad respondendum be issued against appellants and bail be set, and dismissing the defenses raised in appellants' answers. Appellants appealed to the Commonwealth Court, which affirmed the above orders. We granted appellants' petition for allowance of appeal.

In this appeal appellants argue that Philadelphia Local Rule of Court 917, subsections (c) and (d), is invalid because it exceeds the local court's rule-making power. We agree with appellants' contention. The rule-making power of the courts of common pleas of this Commonwealth is found in the Act of June 21, 1937, P.L. 1982, No. 392, § 2 as amended, 17 P.S. § 62, which reads:

'Each of the courts of common pleas, each of the courts of quarter sessions, the county court of Allegheny County, the municipal court of Philadelphia, and other courts established by the General Assembly, may adopt additional local rules for the conduct of its business, Which shall not be inconsistent with or in conflict with said general rules prescribed by the Supreme Court of Pennsylvania.' (Emphasis supplied.)

This power is limited to rules of procedure not 'inconsistent with or in conflict with said general rules prescribed by the Supreme Court of Pennsylvania.' The above-quoted section does not grant authority to the courts of common pleas in any way to alter a procedure which the Legislature, rather than this court, has established. See Com. ex rel. Swann v. Shovlin, 423 Pa. 26, 223 A.2d 1 (1966). The proper procedure for the issuance of writs of capias ad respondendum is detailed in the Act of June 13, 1836, P.L. 568, § 3 as amended, 12 P.S. § 171 et seq. The procedure outlined in that statute requires that the prothonotary, upon application of the plaintiff, shall issue a writ of capias ad respondendum and the officer charged with...