Appeal, No. 63, April T., 1959, from judgment of County Court of Allegheny County, No. C569 of 1957, in case of Commonwealth of Pennsylvania ex rel. County of Allegheny v. Edward J. Toth. Judgment affirmed; reargument refused June 30, 1959.
Kim Darragh, for appellant.
John F. Murphy, Assistant County Solicitor, with him Maurice Louik, County Solicitor, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 189 Pa. Super. Page 553]
Edward J. Toth was sentenced by an alderman to pay a fine of $100 and costs for violating the Smoke Control Ordinance of Allegheny County. After appeal to the County Court of Allegheny County and a hearing de novo by that court, it sustained the conviction and sentence.
Toth then appealed to this Court contending that the section of the ordinance under which he was prosecuted was unconstitutional and that the evidence was insufficient to sustain the conviction.
The court below set forth the facts as follows:
"From the testimony at said hearing it can be established that defendant leased, in 1952, a certain tract of land in North Fayette Township, Allegheny County for coal-stripping purposes; that the Bureau of Smoke Control, on complaint received, investigating a burning fire on the leased premises of defendant on August 25, 1954; that said fire is a gob pile, or coal refuse pile, irregular in shape, approximately 200 feet long and 100 feet at its widest depth; that said fire is above the surface of the ground, exposed to the air setting forth smoke; that at the time of investigation defendant had equipment on the subject tract of land near the burning refuse pile; that said burning refuse
[ 189 Pa. Super. Page 554]
pile was in existence prior to defendant's entry on the leased premises; that the Bureau of Smoke Control, on August 25, 1954, advised defendant to abate and extinguish said fire; that considerable correspondence ensued between the Bureau and defendant about said fire and the manner of extinguishment; that defendant, on one occasion, did scoop refuse or dirt over the burning gob pile but without any ...