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COMMONWEALTH EX REL. RANSOM TOWNSHIP v. MASCHESKA (09/12/68)

decided: September 12, 1968.

COMMONWEALTH EX REL. RANSOM TOWNSHIP
v.
MASCHESKA, APPELLANT



Appeal from judgment of Court of Common Pleas of Lackawanna County, Nov. T., 1965, No. 734, in case of Commonwealth ex rel. Ransom Township v. Peter Mascheska.

COUNSEL

Edwin Utan, for appellant.

Joseph Marzzacco, with him S. U. Colbassani, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 213 Pa. Super. Page 197]

This is an appeal from the judgment of the Court of Common Pleas of Lackawanna County affirming a fine and costs imposed upon the appellant in summary proceedings for violation of the Ransom Township zoning ordinance.

In January, 1965, the Township of Ransom, a second class township, duly adopted a zoning ordinance establishing various districts, including a Residential District and an Agricultural District. Under the ordinance, the keeping of livestock is not among the permitted uses in the Residential Districts. The appellant resides in the Township of Ransom and is the owner of a plot of land 100 feet by 150 feet upon which a barn is situated in the Residential District. At the time of the adoption of the zoning ordinance appellant used the barn to raise chickens, a nonconforming use. This use was subsequently discontinued and appellant began keeping a horse in the barn. Appellant was notified by the Township zoning board of adjustment that the maintenance of a horse in a residential district constituted a violation of the ordinance. Appellant then applied to the board of adjustment for a variance or permit to keep the horse on the premises. On September 10, 1965, the board notified appellant that his request had been denied. No appeal was taken from the decision of the board.

On November 19, 1965, a summons was issued by a justice of the peace alleging that appellant maintained

[ 213 Pa. Super. Page 198]

    a horse in a residential district in violation of the zoning ordinance. After a hearing, appellant was convicted of the violation by a justice of the peace and was ordered to pay a fine of $25 and costs of $9 in lieu of imprisonment.*fn1 Appellant subsequently appealed the conviction by special allowance to the Court of Common Pleas of Lackawanna County, which dismissed the action and sustained the conviction. This appeal followed.

Appellant's first contention is that The Second Class Township Code, § 2004, Act of 1947, July 10, P. L. 1481, § 47, as amended, 53 P.S. § 67004, does not authorize enforcement of a zoning ordinance in summary proceedings by a fine imposed [in lieu of imprisonment] by a justice of the peace. Section 2004 provides: "The supervisors shall exercise the powers granted in section 2001 hereof [the power to zone], by ordinance, which shall provide for the enforcement of the regulations and restrictions established therein . . . by reasonable fines . . . ."

Appellant argues that since § 2004, although authorizing reasonable fines, does not authorize collection of the fine through summary proceedings before a justice of the peace, a justice of the peace does not have jurisdiction to impose a fine in lieu of imprisonment for violation of the ordinance.

However, the procedure for collection of fines for violation of zoning ordinances is found elsewhere in The Second Class Township Code. Section 702, cl. XXV, of the Code, 53 P.S. § 65725, grants to second ...


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