Edward M. Citron, Leo Kostman, John R. Bowman, Pittsburgh, for appellants.
Irwin I. Tryon, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 364]
Baldwin Township, a township of the first class, pursuant to the Act of June 29, 1923, P.L. 957, 53 P.S. § 15731 et seq., its supplements and amendments, adopted a zoning ordinance*fn1 which provides by section 6, subsection
[ 169 Pa. Super. Page 36524]
that 'mining operations of all kinds, except for water' is a 'prohibited use' of land located within a township district designated as 'Commercial'.
Two informations were filed against each of the appellants charging them with violations of the ordinance 'by mining coal in an area prohibited by said ordinance, particularly Section 6 Sub-section 24.' One set forth violations occurring on the 26th, 27th, and 28th of February, 1950, while the other set forth violations occurring on the 2nd, 3rd, and 4th of March, 1950. From their conviction before a justice of the peace appeals were taken to the County Court of Allegheny County. After hearing the evidence de novo, Lencher, P. J., adjudged both defendants guilty of the offenses as charged. Exceptions to his findings of fact and conclusions of law were filed.
After argument before a court en banc, in an opinion disposing of the exceptions the court said: '* * * they [defendants] followed a practice for which we know no legal basis. They filed exceptions and asked leave to argue some legal matters before a court en banc.' In City of Pittsburgh v. Ruffner, 134 Pa. Super. 192, 197, 4 A.2d 224, 226, this Court, speaking through Keller, P. J., said: 'It has never been the practice to have such judgment [on appeal from a summary conviction] reviewed by the court in banc before taking an appeal, as in the ordinary trial of civil issues.' In that case the appeal was quashed because it was not 'taken within the time fixed from the entry of the judgment.' In the instant case the appeal to this Court was timely and will be considered on the merits.
Appellants contend that since the arresting officer testified that removals of coal took place on March 3, 4, and 5, a violation on March 2 was not proved, and therefore the information charging violations occurring on March 2, 3, and 4 were void. They further contend that since each of the informations set forth three
[ 169 Pa. Super. Page 366]
violations, each day of alleged mining operations constituting a single offense, they are invalid because of duplicity. The technical accuracy necessary to an indictment is not essential to an information. Commonwealth v. Beloff, 166 Pa. Super. 286, 70 A.2d 689; Commonwealth v. Spallone (No. 1), 154 Pa. Super. 282, 35 A.2d 727; Commonwealth v. Ginsberg, 143 Pa. Super. 317, 18 A.2d 121. With particular regard to the first contention, it should also be ...