
    Commonwealth ex rel. Panetta v. Hendrick, Appellant.
    Argued March 21,1972.
    Before Weight, P. J., Watkins, Jacobs, Hoffman, Spaulding, Ceecone, and Paokel, JJ.
    
      September 19, 1972:
    
      Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, RicTicurd A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellant.
    
      Bernard L. Segal, with him Segal, Appel & Natali, for appellee.
   Opinion by

Cercone, J.,

After a lengthy investigation by the Philadelphia Police Department, the Federal Bureau of Investigation, the Pennsylvania State Police, and other agencies into the operations of a vast auto theft ring, warrants of arrest were obtained for a number of persons, among whom were Vincent Panetta and Raymond Chalmers. At their preliminary hearing before a lay judge of the Municipal Court of the City of Philadelphia, Panetta and Chalmers were held for court on the amount of bail which they had originally entered. When Panetta and Chalmers refused to present their “bail slips” as proof of the entry of bail, the court ordered them detained until they produced the slips; whereupon, Panetta and Chalmers filed a joint petition for writ of habeas corpus on which the Common Pleas Court in Philadelphia entered an order granting a rule to show cause, staying all proceedings, and setting bail on the petition at the original amount of $1500.

The District Attorney filed an answer to the petition for writ of habeas corpus alleging that the petitioners had, by refusing to present their “bail slips”, voluntarily submitted and surrendered themselves to custody for the sole purpose of making application for writ of habeas corpus. There was no denial of this allegation. The District Attorney also filed a motion to dismiss the petition and to discharge the rule to show cause which the court had granted. The matter came up for hearing before the Common Pleas Court on February 10, 1969 and not until one year later, March 3, 1970, did the court enter an order denying the Commonwealth’s motion to dismiss, but taking no action with respect to defendant’s petition for writ of habeas corpus. On December 7, 1971 the court entered an order issuing the writ of habeas corpus as to Vincent Panetta, stating in a single paragraph opinion the reason that “the Commonwealth is without evidence that defendant had knowledge of the defaced serial numbers”. No reference was made to the joint petitioner.

The Commonwealth has taken an appeal from this order of the court below contending (1) the joint petition for writ of habeas corpus should have been dismissed upon presentation, the law not allowing for such joint petition; and (2) a review by the court of the sufficiency of evidence against a defendant on a petition for a writ of habeas corpus is limited to cases of involuntary restraint of liberty and does not exist where the physical restraint has been self-created.

We find it unnecessary to decide the latter issue for the reason that the court below should not have entertained a joint petition for habeas corpus made in behalf of more than one petitioner: Ferree v. Douglas, 145 Pa. Superior Ct. 447 (1941). This defect was not cured by the simple expedient of the court’s making no disposition as to the status of a joint petitioner. Accordingly, we reverse the order of the court below and remand the matter for further proceedings.

Spaulding and Packed, JJ., concur in the result solely because the restraint was deliberately not avoided in order to seek habeas corpus which otherwise would not have been warranted.

Concurring Opinion by

Hoffman, J.:

I do not agree with the majority’s reliance on the case of Ferree v. Douglas, 145 Pa. Superior Ct. 447,

21 A. 2d 472 (1941). In Ferree v. Douglas seventeen petitioners joined in one habeas corpus petition to challenge their commitment to jail in lieu of payment of a fine imposed by the Mayor of the City of Jeanette, after they were found guilty of violating a city ordinance. The petitioners had all been convicted, and one of the co-defendants had already exhausted his appellate remedies. Commonwealth v. Stewart, 137 Pa. Superior Ct. 445, 9 A. 2d 179 (1939), cert den., 309 U.S. 674 and 699 (1940).

The Court held in Ferree v. Douglas, supra, that the “case cannot be reopened on a writ of habeas corpus.” In the instant case the petitioners have not yet been convicted. They were being held for the grand jury by a lay Judge of the Municipal Court of Philadelphia, and were challenging that Judge’s action. The only review available to the Judge hearing the habeas petition was upon the notes of testimony of the preliminary hearing.

In Ferree v. Douglas, supra, the Court was concerned with the problem of retrying the appellants after one of the parties had exhausted his appellate remedies. In the instant case appellees had only had a preliminary hearing, and in order to challenge the decision of the lay Judge of the Municipal Court, they had filed their petition. They were not in the position of attempting to retry their case, but were seeking appropriate review, which review would be limited to notes of testimony of the preliminary hearing, and would not entail the taking of additional testimony. Therefore, I believe that Ferree v. Douglas, supra, does not control the case before us.

Nonetheless, I believe that the decision of the lower court must be reversed. The record in this case clearly indicates that the Commonwealth did present a prima facie case, and that the lower court erred in granting appellees’ habeas corpus petition. Therefore, I would remand this case with a procedendo. 
      
       It should be noted that after the appellant in Commonwealth v. Stewart, supra, had exhausted his appellate remedies, the other sixteen petitioners attempted to submit to incarceration, and then file a habeas corpus petition.
     