No. 602 October Term 1976 Appeal from the Order of the Court of Common Pleas, Criminal Division of Montgomery County, No. 4689, Oct. Term 1974.
D. Connors Kagno, Lafayette Hill, for appellant.
Albert C. Oehrle, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Van der Voort, J., files a dissenting opinion in which Jacobs and Price, JJ., join.
[ 247 Pa. Super. Page 496]
On October 26, 1974, appellant and others participated in a picket-line demonstration in front of the A&P supermarket in the Wynnewood Shopping Center, Lower Merion Township. Shortly after the picketing began, an officer of the Township police issued a citation to appellant, charging her with violating Lower Merion Ordinance 1415.*fn1 On December 12, 1974, the District Justice found appellant guilty as charged and fined her $100.00 plus costs of $11.00.
Appellant appealed her conviction to the Court of Common Pleas of Montgomery County by filing an appeal with the Clerk of Court (Common Pleas Criminal Division). The Township moved to strike the appeal on the ground that the action was civil in nature and that the appeal should therefore have been filed with the Prothonotary (Common Pleas Civil Division). The lower court granted the Township's Motion.
The lower court was correct that under the case law an appeal from a proceeding for a violation of a municipal ordinance must be brought in conformance with the Rules of Civil Procedure. However, we find that the case law has been overruled by Pa.R.Crim.P. 67, adopted September 18, 1973, effective January 1, 1974; we therefore hold that the lower court erred in striking appellant's appeal.
[ 247 Pa. Super. Page 497]
The case law is clear that "an action brought against a defendant for the violation of a municipal ordinance is a suit for the recovery of a penalty due the municipality and is a civil proceeding." York v. Baynes, 188 Pa. Super. 581, 585, 149 A.2d 681, 683 (1959). This rule applies even though there may be a variety of facts implying that the action is criminal. For example, in Commonwealth v. Ashenfelder, 413 Pa. 517, 198 A.2d 514 (1964), the Supreme Court held that
[the] fact that the Commonwealth, erroneously, in the caption is made the party prosecuting does not change the nature of this proceeding, i. e., a suit for the recovery of a penalty due to the Township for a violation of its ordinance. The rationale of York v. Baynes, in our view, sound, controls this situation. Even though this action were [ sic ] instituted by the issuance of a warrant -- which the record before us does not disclose -- and even though the penalty under the provisions of the ordinance is termed a "fine", this is fundamentally an action instituted for the violation of a township ordinance and an appeal from the judgment entered in such action should have been taken to the court of common pleas and not to the court of quarter sessions.
Id. 413 Pa. at 525, 198 A.2d at 517.
We would be reluctant to apply these cases to the present case because if ever there was a case in which almost all of the actions taken by the prosecuting Township and by the District Justice implied ("screamed" would not be too ...