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COMMONWEALTH v. ASHENFELDER (03/17/64)

March 17, 1964

COMMONWEALTH
v.
ASHENFELDER, APPELLANT.



Appeal, No. 16, Jan. T., 1964, from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1962, No. 220, in case of Commonwealth v. Weston W. Ashenfelder, Jr. Order reversed.

COUNSEL

John P. Yatsko, for appellant.

Charles Potash, with him Cassin W. Craig, and Wisler, Pearlstine, Talone & Gerber, for Lower Providence Township, appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 413 Pa. Page 519]

OPINION BY MR. JUSTICE JONES

Weston W. Ashenfelder, Jr. (appellant), was convicted before a justice of the peace of a violation of the "Lower Providence Township Gunning Ordinance of 1960" which makes it an offense*fn1 to use a firearm for hunting or to fire a firearm in the township unless the hunter has "first given his name, address and hunting license number to the owner or the lessee in possession of the premises where he intends to shoot and has obtained the written consent of such owner or lessee ... on the form provided by the ... [Township]. Before hunting or firing a gun on such private property, the consent ... shall be filed with the Township Secretary or left at the Township Building ... during business hours". Neither registration with the township nor a filing fee is required. Appellant's conviction

[ 413 Pa. Page 520]

    was affirmed on appeal to the Court of Quarter Sessions of Montgomery County and this appeal was then taken.

Appellant's challenge to the validity of this ordinance os (a) that the township lacked the requisite statutory authority to enact this ordinance and (b) the subject matter of the ordinance has been preempted by state legislative enactments, i.e., that provision of The Penal Code of 1939*fn2 which makes trespassing upon posted land an offense and the statutory provisions which empower the Pennsylvania Game Commission to regulate hunting in the Commonwealth.*fn3 In determining the validity of this ordinance, we bear in mind that such ordinance is presumptively valid (Bilbar Construction Co. v. Easttown Twp. Bd. of Adjustment, 393 Pa. 62, 71, 141 A.2d 851) and that the burden is upon the appellant to prove otherwise.

Ostensibly, this ordinance purports to regulate "hunting and use of rifles and shotguns" to provide for the safety of the inhabitants of the Township. The ordinance prohibits certain acts: (a) the use for hunting or the firing of a rifle, shotgun or other firearm, without the written consent, on township-provided form, of the landowner or land lessee; (b) the firing of a gun within 150 yards of certain described buildings*fn4 or upon property where the owner has not given his written consent; (c) the firing of any "rifle or pistol cartridge of a size greater than .22 caliber short" at any time in the township. The instant appellant

[ 413 Pa. Page 521]

    is charged only with a violation of that portion of the ordinance which makes it an offense to go upon the land of another with a firearm used for hunting ...


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