December 12, 1952
Markowitz, Liverant & Boyle, York, for appellant.
Clarence M. Lawyer, Jr., Dist. Atty., and George W. Atkins, 1st Asst. Dist. Atty., York, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 172 Pa. Super. Page 199]
The defendant was found guilty by the local magistrate on a charge of disorderly conduct.*fn1 He took an appeal to the court of quarter sessions. That court entered an order as follows: 'There was vile, loud and boisterous language used upon the public highway in the Borough of Wrightsville; that it was of such a type and character that it could disturb the peace of the neighborhood. * * * Therefore, the appeal is dismissed.' In Commonwealth v. Peacock, 118 Pa. Super. 168, 172, 179 A. 907, 909, this Court said: 'A judgment affirming the justice of the peace dismissing the appeal or sustaining the appeal is not sufficient, but will be reversed. [Citing cases.]' Therefore, since the final order merely dismissed the appeal, the judgment must be reversed.
However, we agree with the court below that the elements of the offense were made out. The Act reads: 'Whoever wilfully makes * * * any loud, boisterous and unseemly noise or disturbance to the annoyance of the peaceable residents near by, or near to any public highway, road, street, lane, alley, park, square, or common, whereby the public peace is broken or disturbed or the traveling public annoyed, is guilty of the offense of disorderly conduct * * *.' There was vile, loud and boisterous language used on the public highway in the borough of Wrightsville and this is not denied; that this disturbed or broke the public peace or annoyed the traveling public is beyond any question. The officers who made the arrest were members of the traveling public. We therefore concur in the finding that the public peace was broken or disturbed or the traveling public annoyed. We think there is no merit on that branch of the appellant's contentions.
[ 172 Pa. Super. Page 200]
The order of the court below is reversed with a procedendo.