Randall v. Ort

16 Pa. D. & C.2d 533, 1958 Pa. Dist. & Cnty. Dec. LEXIS 173

• Court: Pennsylvania Court of Common Pleas, Erie County
• Decided: November 3, 1958
• Docket: no. 407
• Status: Published

Opinion

Evans, P. J.,

— This matter is before the court on a motion to strike off the allowance of an appeal from a judgment of a justice of the peace entered April 21, 1958, in the amount of $75.

It is true, as contended by plaintiff, that the petition sets forth nothing from which the court could determine anything concerning the underlying merits of the case which would justify the special allowance of appeal under the provisions of the Act of May 17, 1956, P. L. 1626, 42 PS §913a.

This brings us to a problem which has given us concern since the passage of said act of assembly. Under its provisions a court may deny the right of trial by jury, and this is in contravention of our basic law preserving that right.

Although the constitutionality of said act has not been passed upon by the appellate court, we are in accord with the reasoning and conclusions reached by Judge Bretherick in Booz v. Reed, 13 D. & C. 2d 283, and, therefore, conclude in the matter before us that the right to appeal existed with or without our approval and allowance.

Under article I, sec. 6, of the Constitution of Pennsylvania the Act of May 17, 1956, supra, insofar as it gives the court the right to determine whether or not an appeal may be taken from a judgment in trespass entered in an amount of $100 or less by an alderman or justice of the peace is in our opinion unconstitutional.

And now, to wit, November 3, 1958, the motion to strike off the allowance of appeal in the above entitled matter is refused and the motion discharged.