Lead Opinion
Opinion by
On November 21, 1974 complaints were filed and appellants were arrested on charges of burglary.
We have before us an interlocutory order concerning Rule 1100 which has been certified pursuant to Section 501(b) of the Appellate Court Jurisdiction Act. Recently, in the case of Commonwealth v. Bennett, 236 Pa. Superior Ct. 509, 345 A.2d 754 (1975), we were faced with a similar situation. There we had before us an interlocutory order concerning Rule 1100, the appeal from which was not objected to by the Commonwealth. We, therefore, had discretionary appellate jurisdiction pursuant to Section 503(a) of the Appellate Court Jurisdiction Act.
“The decision whether to exercise our discretion by hearing this appeal is a difficult one. The case is ripe for decision since the lower court has written an opinion and this court has just heard argument and reviewed the briefs. Further, as Justice Roberts notes in his dissenting opinion in Commonwealth v. Barber, [461 Pa. 738, 337 A.2d 855 (1975)], the issue of speedy trial is collateral to the issues involved in the actual trial, so we can decide the merits of this case without fear that trial questions would be prematurely decided. In fact, if we were to reach the merits and were to decide appellant had been denied his right to a speedy trial, there would be no trial. This would reduce any pre-trial incarceration as well as any ‘anxiety and inhibition caused by an accusation of crime.’ Commonwealth v. Barber, supra at 742-743, 337 A.2d at 857 (1975) (Roberts, J„ dissenting). All these considerations argue for affirmative exercise of our discretion. However, on the other side, there is the clear decision by the majority of the Supreme Court in Myers [457 Pa. 317 (1974)] and Barber that review of the speedy trial issue should wait until after the trial. The implicit reasoning underlying that decision seems to be as follows. The purpose of the speedy trial rule is to make sure that defendants receive trials as quickly as possible both for their own satisfaction and in order to preserve the evidence so as to minimize prejudice at trial. Appeals from pre-trial orders would in many cases only retard this process. If such appeals were allowed, those defendants who had their claims for speedy trial, denied by the trial court and rejected on appeal might not have a trial for a year or more. As to those defendants who have valid claims, while they may have to endure the hardship of trial, at least relief can be had after trial. Balancing these considerations, we conclude that we*549 should not allow a defendant to appeal to this court in this type of case, even though the district attorney does not object.” 236 Pa. Superior Ct. at 515-516.
In the instant case the same reasoning applies. The fact that our discretionary jurisdiction is obtained here pursuant to certification under Section 501(b) rather than on the Commonwealth’s failure to object to jurisdiction under Section 503(a) of the Appellate Court Jurisdiction Act does not mandate a different result than was obtained in Bennett, supra. It must be kept in mind that as in Bennett, supra, our jurisdiction here is also discretionary and as in Bennett, supra, the same Rule 1100 issue is involved.
Accordingly, this appeal is quashed and the case is remanded for trial.
. Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3502.
. Rule 1100(a)(2) states: “Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”
. Act of July 31, 1970, P.L. 673, No. 223, art. V, §501(b), 17 P.S. §211.501(b). Section 501(b) states: “Discretionary Allowance of Appeals. — When a court or administrative agency, in making an interlocutory order in a matter in which its final order would be within the
. Section 503(a) states: “The failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the hearing of the appeal, or within such earlier time as may be specified by general rule or rule of court, shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provisions of this act, or of any general rule adopted pursuant to section 505 of this act, vesting jurisdiction of such appeal in another appellate court.”
Concurrence Opinion
Concurring Opinion by
Although I agree with the majority that we can ánd should exercise our discretion to refuse the appeal from the interlocutory order certified to us by the court below, I must dissent from the view that this Court has discretionary appellate jurisdiction over those interlocutory appeals which are not objected to by the appellee. The majority cites Commonwealth v. Bennett, 236 Pa. Superior Ct. 509, 345 A.2d 754 (1975) as an example of an unchallenged interlocutory appeal over which this Court could have exercised discretionary appellate jurisdiction under §503(a) of the Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, art. V, §503(a), 17 P.S. §211.503(a). In that case, however, the Court declined to exercise its discretion to accept the appeal. The case in which the Court did decide to accept jurisdiction of an unchallenged appeal from an interlocutory order was McConnell v. Schmidt, 234 Pa. Superior Ct. 400, 415, 339 A.2d 578 (1975) (Jacobs,' J., filed an opinion dissenting in part, in which Watkins, P.J., and CERCONE, J., joined). The order in that case, however, was vacated by the Pennsylvania Supreme Court, which agreed with the dissent in this Court that
Concurrence Opinion
Concurring Opinion by
Although Commonwealth v. Bennett, 236 Pa. Superior Ct. 509, 345 A. 2d 754 (1975) (Opinion by Spaeth, J.) stated that interlocutory orders are appealable when the appellee has failed to object to the court’s jurisdiction, the subsequent Supreme Court case of McConnell v. Schmidt, 463 Pa. 118, 344 A. 2d 277 (1975) has proved that contention to be in error. The Bennett rationale for not exercising our jurisdiction over interlocutory Pa. R. Crim. P., Rule 1100 appeals, however, remains valid and I therefore agree with the majority that the appeal should be quashed.