Appeal from the Order of the Westmoreland County Court of Common Pleas in case of Commonwealth of Pennsylvania v. Andrew Beers, No. 250 October Term, 1973.
Gary Robert Fine, with him Alex E. Echard and Peter P. Cherellia, for appellant.
Leslie J. Mlakar, with him Loughran, Loughran & Mlakar, for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
Andrew Beers has appealed from an order of the Court of Common Pleas of Westmoreland County, made after trial de novo, affirming a judgment of conviction sought and obtained by appellee, Mt. Pleasant Township (Township), in summary proceedings before a Justice of the Peace.*fn1
Junkyard operations in Mt. Pleasant Township, a township of the Second Class, are regulated by its Ordinances numbered 35, 54 and 55. Ordinance No. 35 was enacted for the specific purpose of regulating junkyards and requires that junk dealers have their premises licensed by the Township prior to doing business. Other stated requirements are as follows: that the licensed premises shall not be maintained so as to constitute a nuisance or a breeding place for vermin; that all gasoline be drained from junked vehicles; that materials shall be stored so as to prevent accumulation of stagnant water; that the premises be properly fenced; and that no junkyard shall be established without first obtaining approval from the Township Supervisors.
Ordinance No. 54 was enacted May 7, 1973 and amended the penalty provision of Ordinance No. 35 to read:
Any person who shall violate any of the provisions of this ordinance, shall, upon conviction thereof be sentenced to a term of no less than one day nor more than seven days in
any jail in Pennsylvania. However, in the discretion of the judicial authority, in lieu of sentencing, the violator may be sentenced to pay a fine of not more than One Hundred Dollars plus costs of prosecution: Provided, each day's violation of any of the provisions of this ordinance shall constitute a separate offense.
Ordinance No. 55 creates flood plan conservation districts and affects junkyards because they are prohibited to be established within said districts.
On September 12, 1973, the Township filed a complaint with a Justice of the Peace alleging that the appellant was operating a junkyard without a license.*fn2 After hearing, the Justice entered a judgment of conviction and imposed a fine of $100 and costs of $11. Mr. Beers then appealed the judgment to the Court of Common Pleas and trial de novo was held on August 20 and 23, 1974, at which the following facts were adduced: Mr. Beers had, since 1960, conducted junkyard operations at various locations in the Township without a license though licensure was required by ordinance; that in early September of 1973, without first applying for a license*fn3 and without notice to or approval by the Township Supervisors, Mr. Beers commenced junkyard operations in the Carpentertown Mine area (Carpentertown) of Mt. Pleasant Township; ...