*1 tion agents authorities the various to act as states of unemploy- federal government extending ment em- compensation to covered federal benefits authorities ployes, Pennsylvania compensation are required accept conclusive as final and respect findings federal with employing agency to whether serv- performed the claimant has federal the amount remuneration ice, for such service, for reasons termination service. of such Neumeyer Unemployment Compensation Case, 144 A.
Here report tes- the federal agency and timony clearly discloses that appellant chose pursue his education employ- rather than federal his and duly submitted rea- ment, resignation. his Such son is not of a necessitous and as compelling nature required the law and he is therefore ineligible benefits under §402(b) (1) of the Com- Unemployment pensation Law.
Appellant’s
argument
applicable provi
of the Social
sions
Security Act are unconstitutional
is irrelevant
to this
ques
proceeding
his
right
tion the
section
constitutionality
must
raised before federal authorities
under
federal
law.
Johnson Unemployment Compensаtion
Case,
Decision affirmed. v. Poundstone.
Commonwealth, Appellant,
41? *2 P. J., Before Rhodes, December Argued Montgomery, Watkins, Woodside, Wright, Ervin, JJ. Flood, Philip P. Kalodner, Deputy with Attorney General, him Harry Distinct Heilman, Jr., Attorney, David Stahl, Attorney General, ap- Commonwealth, pellant.
Thomas R. for appellеes. Eddy, Opinion March 1963: J., Woodside, The Commonwealth orders appealed has from the who demurrers made defendants by the were tried on the charges of bribery conspiracy.
In the course of- the Commonwealth trial, fered cеrtain evidence which ad- the court refused to mit. At the conclusion of evi- the Commonwealth’s dence, a demurrer was interposed in each case. *3 court sustained the re- demurrers, subsequently to fused remove them.1
Without of- evidenсe which the Commonwealth fered and which the court is refused to there admit, insufficient evidence to support a conviction of any the defendants on any Common- charges. The wealth admits but this, appeals on ground that trial judge erred in its rulings on the and that evidence, there would have been sufficient evidence to submit case to the had not jury the court erred in its rulings on the evidence.
It is settled that on an appeal by the Commonwealth from an order sustaining demurrer to Common- wealth’s our review is limited to an examina- tion of the record to determine whether there was suf- ficient evidence to convict. 1 Fox, Superior v. 292, Commonwealth Pa. 299, Ct. (1956), Judge speaking
A. President
Rhodes
for this Court
fact
that an
“The
order
said:
a demurrer
final
precludes any
appeal
purposes
by
further
action on the matter
court.”
lower
carefully
The identical question
presented
here
Supe
examined in Commonwealth
Pa.
v.
rior
Ct.
v 255. The Obenreder, supra, difficulty case confronts the commonwealth concededly is that not made out on the received. testimony actually than the trial no alternative Viewing judge hаd only, offered sustain the demurrer. Should the testimony rejected commonwealth at side bar, trial have been considered? Our answer judge, question proper apply test negative. to the of a demurrer ‘evidence validity is whether (Commonwealth record’ Ernesto, (Com the ‘admitted state of facts’ 339, 341, 342), pro monwealth p. the ‘evidence Kerr, supra, 601), duced’ (Commonwealth Williams, 311; p. 599), Kolsky, supra, ‘all reasonably the facts testified to and the inferences Pennsylvania, drawn therefrom’ Criminal (Sadler, Procedure pp. l. would II, §541, 611, 612), Vo Law a verdict of guilty. See, also, Chitty Criminal *4 p. American Vol. as (5th Ed., 1847), I, Even the commonwealth’s contention is ‘the suming correct, if in the exclusion of on the any, error, trial.’ Commonwealth 256.” Obenreder, supra, p. 166 Pa. Ct. Thomas, A. 2d 458 this 70 Court said: (1950), “An ob- 214, 219, of testimony this offer sustained jection by assigned ruling and his trial as error. How- judge, determining validity demurrer in a ever, 420
criminal case the test is evidence of whether the assuming guilty, would a verdict of and even excluding tes- that the trial court erred in the offered timony, such error is not before us.” recently quoted year
As as last we from, cited, approved holding su- of Commonwealth v. Frank, pra, in an the Commonwealth from sus- taining 197 of demurrer. Commonwealth v. McDade, (1962). 180 A. 2d
The overrule Commonwealth admits that we unless supra, 159 Pa. Frank, ap prevail (1946), 271, peal. cannot ap recognized doctrine stare decisis, plied by among the courts of this Commonwealth, important principles good government. the most Monongahela Railway Philadelphia Street Co. Com pany, (1944) 39 A. 2d 603, 616, ; Callen Keystone dees Administrator v. Insurance Mutual Life carefully (1854). Co., Rules of law, definitely considered and be not established, should lightly discarded. If the wheat courts are to wave like particular judges the whims of wind, moment and not destinies, rules of law will control the people. lives and fortunes our should “Stare Decisis princi If not be trifled with. the law knows no fixed ples, certainly chaos confusion will follow.” Com monwealth v. Woodhouse, 164 A. 2d 242, (1960).
Arguments against for and or the rule followed, promulgated, supra, in Commonwealth can v. examined and estab- revived, but an re-examined, rejected except rule lished should not be solid, convinсing cogent and reasons. Commonwealth v. p. supra, carefully 253. We have Woodhouse, examined ingenious argument Dep- and learned made Attorney uty as General, well as the he cases to which our but we are attention, has called not convinced rule is invalid or the established undesirable. *5 ap- filed appellees quash
The have motions to the from the Commonwealth peals. However, motions of a demurrer. sustaining the the Therefore, Considering to must be dismissed. the quash sup- find insufficient which is beforе we evidence us, thus the a must affirm demurrer. port conviction, on the rulings of the trial court As stated above, of are not before us. admission evidence affirmed. Orders
Dissenting
Opinion
J.:
Wright,
crimi
These
an
of
appeals
important question
rаise
appel
procedure.
nal
the Commonwealth secure
May
admissi
on
late review of
court
rulings by
trial
has
of
bility
where exclusion of
strong
I
in the
of
am
resulted
a demurrer.
sustaining
ad
opinion
proper
of the
interest of
ly
that,
hаve
should
ministration of
the Commonwealth
justice,
point
opinion asserts
right.
majority
contrary by
Frank,
is ruled
so,
If
Dissenting J.: Montgomery, cоncede case of I cannot A. 2d strongly precludes majority, of the on by relied review rulings lower court the admission preventing *6 evidence which facie might prima have made out a case for the Commonwealth. In certain wit- that case nesses to necessary sup- the case Avere CommonAvealth’s in ported their on constitutional to re- stand, rights, Baldrige fuse to testify. President this Judge- revieAved the Court, actions of the lower court at great length concludеd that are of (page “We 273), opinion that Con- court’s conclusion is correct.” it sequently, affirmed since the judgment, was insufficient without that evidence. the issue
There, was whether the of wit- testimony nesses who were associated with the dеfendant operation a lottery who their constitu- claimed tional privilege against properly self-incrimination Avas excluded trial court. It that obvious Court had to consider the excluded deter- evidence to mine whether the trial court in was correct refusal its to order the witnesses to of con- testify grounds stitutional but there privilege, was no to logical reason declare general as a rule that such review a lower court’s exclusion of upоn evidence in a demurrer criminal to proceeding improper. be
In the present case, CommonAvealth asking this Court to do precisely the same re- that thing, is, view actions of the lower court. It estab- seeks to lish rulings the lower сourt, excluding were erroneous, that if had such evidence been admitted, it, together with the admitted evidence, would have been sufficient to prima establish a facie case.
I concede that the circumstances Com- Avhеre the appeal monwealth may criminal cases are limited, I but find no authority support proposition a trial his judge may, by limit errors, the record which - Common be to review on subject an by the from the actions Avealth lower court in sustain- prosecu- by the ing offered demurrer to the evidence tion. supra, no finds
Commonwealth v. Frank, upon very relies authorities which in the interpretation majority. Com from it derived Ct. 253, monwealth v. Obenreder, acquittal; Commonwealth a cаse of an A. in Ct. 565, Shiroff, sup testimony sufficiency of the admitted volved Kolsky, port necessary In inferences. Com. of the Commonwealth’s wholly inferences and the circumstantial in defendant’s with the drawn were not inconsistent Pennsylvania Er nocence. Commonwealth of *7 question Superior wheth was Ct. the nesto, 339, conclusion the er the evidence sufficient to was illegal cause the were that the acts of the defendants - indict been had of the crime for which the defendants Superior Ct. In ed. Commonwealth v. Kerr, sustaining de after A. 2d the trial 598, court, 340, jury directing find fendant’s in demurrer, erred guilty. Williams, In Commonwealth a verdict not question was whether Pa. 311, which after a demurrer court could a conclusion draw jury might In Com have inferred from the еvidence. 24 A. monwealth v. Ct. 68, Heller, opinion of the erroneous the trial court was 460, Common a demurrer to the after it had overruled had taken and the defendants wealth’s evidence resulting other the case stand and offered evidеnce, jury guilty, could recon the trial court in a verdict sustaining it and dis on the demurrer, sider its action charging In defendants. Simmons, Huffman in 200 A. held that 370, 274, Pa. judgment judgment entering en n.o.v. the must be in and the court tlie evidence tered on up- was excluded. not consider However, appeal, evi- this Court did excluded consider the propriety dence and the of the court in its considera- Henry Company Pa. tion it. Shenk Erie, judgment 43 A. 2d motion for the defendant’s predi- properly refused motion was n.o.v. whеre the upon proceedings cated the record of former viewers’ which were not admitted in evidence until after jury’s close trial and the return of verdict. None of deter- these cases are concerned with validity minatiоn of the of a demurrer in a criminal case where evidence has been excluded inadmissible. as Supe- The case of Commonwealth v. Thomas, directly point, rior Ct. 70 A. 2d states that in such if a case excluded even error, cannot be considered on review. However, only opinion case cited for this declaration supra, I be- which do not point inferentially lieve to or be in even a basis for this conclusion.
Preventing appealing the Commonweаlth from resulting exclusion of evidence of a discharge demurrer and the not defendants is justified principles per- either the established of law mitting questions the Commonwealth to all acquittal law where there has been no verdict of or policy considerations which defendant insulate the acquittal by after an trier of fact. *8 respectfully
I therefore dissent. joins this dissent. Flood, J., ex Appellant, rel. Montanez, Maroney.