William L. Patterson, New York City, and Hymen Schlesinger, Pittsburgh, for appellant.
Samuel J. Goldstein, Pittsburgh, for American Civil Liberties Union, amicus curiae.
William Moldovan, City Solicitor, McKeesport, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 405]
The defendant was charged with the violation of section 2 of ordinance No. 1549, series of 1943,*fn1 of the
[ 167 Pa. Super. Page 406]
City of McKeesport in that he failed to secure the necessary permit; he was arrested on September 20, 1949; after hearing before a magistrate, he was convicted of the offense charged against him; and he was sentenced to pay a fine of $50 and costs, and in default of payment to be committed to the Allegheny County Jail for the space of thirty days.
Defendant thereupon presented a petition to the County Court of Allegheny County praying for the allowance of an appeal from the judgment of the magistrate; the appeal was allowed by the court. The court, after hearing, found the defendant guilty of violating section 1*fn2 of ordinance No. 1549 of the City of McKeesport, effective March 18, 1940, and sentenced him to pay a fine of $50 and the costs, and in default thereof to stand committed to the Allegheny County Jail for the period of thirty days.*fn3
[ 167 Pa. Super. Page 407]
It was not within the province of the court to convict defendant of an offense different from that charged before the magistrate. 'When the appeal has been allowed, the charge or cause of action remains the same, but the proceedings to determine the guilt or innocence of the defendant are de novo'. Manorville v. Flenner, 84 Pa. Super. 246, 249. See Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.
Defendant, having been charged and convicted by the magistrate of the violation of section 2 of the ordinance, could not on appeal be convicted by the court of the violation of section 1 of the ordinance. There was no proof that defendant had violated section 2 of ordinance No. 1549, as amended, and no permit could be involved in section 1 of the ordinance. See Com. v. Scott-Powell Dairies, 128 Pa. Super, 598, 600, 194 A. 684; Com. v. Devenney, 103 Pa. Super. 83, 85, 156 A. 809. The defect appearing on the record is fundamental and ...