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COMMONWEALTH PENNSYLVANIA v. LOUIS J. CARTER (09/08/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 8, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS J. CARTER, APPELLANT

Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. Louis J. Carter, No. 4709 October Term, 1975.

COUNSEL

Louis J. Carter, appellant, for himself.

William J. Furber, Jr., with him Parker H. Wilson, and Wilson, Oehrle & Drayer, for appellee.

Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Judge Kramer did not participate in the decision. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr. Judge Kramer did not participate in the decision in this case. See Pa. R.a.p. 3102(d).

Author: Wilkinson

[ 36 Pa. Commw. Page 570]

This is an appeal from an order of the Court of Common Pleas of Montgomery County striking appellant's appeal from an adjudication of guilt upon the charge of falsely activating a home burglar alarm in violation of a Lower Merion Township ordinance. We affirm.

On September 19, 1975, appellant was issued a citation for the unlawful activation of a home burglar alarm in violation of Lower Merion Township Ordinance No. 1672, Section 1600.2. The case was docketed by the District Justice of the Peace as a criminal case. Appellant was required to appear before the District Justice and plead "guilty or not guilty." He did the latter. After a hearing, on October 9, 1975, Carter was adjudged guilty and ordered to pay a fine plus costs in the sum of $21. Carter appealed his conviction to the Court of Common Pleas, challenging the

[ 36 Pa. Commw. Page 571]

    constitutionality of the ordinance. He sought to perfect his appeal pursuant to the Pennsylvania Rules of Criminal Procedure. On June 23, 1976, the lower court, on its own motion, ordered the appeal stricken on the ground that it had not been taken in compliance with law. The lower court so concluded, based upon the premise that an action brought for the violation of a municipal ordinance is a civil proceeding, and, therefore, Carter's appeal was defective because it was not taken in compliance with the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before Justices of the Peace.*fn1 A timely petition for reinstatement of the appeal was filed by appellant but not acted upon by the lower court.*fn2

It has long been settled in this Commonwealth that an action instituted for violation of a municipal ordinance is a civil proceeding. Commonwealth v. Ashenfelder, 413 Pa. 517, 198 A.2d 514 (1964); York v. Baynes, 188 Pa. Superior Ct. 581, 149 A.2d 681 (1959). As we stated in City of Philadelphia v. Home Agency, Inc., 4 Pa. Commonwealth Ct. 174, 177, 285 A.2d 196, 198 (1971):

[ 36 Pa. Commw. Page 572]

So many practitioners have been broken on the anvil of the principle settled by the cases cited, that we feel strongly that it should not be put in question again in this case.

Appellant argues that this principle has again been placed in question, since the adoption of Pa. R. Crim. P. 67, effective January 1, 1974. Rule 67 reads in pertinent part:

(a) After conviction by an issuing authority in any summary proceeding, a defendant may appeal to the court of common pleas of the judicial district in which the conviction occurred.

It is appellant's argument that the manner in which his violation of the ordinance was handled by the District Magistrate (appellant was asked to plead guilty or not guilty and the notice for hearing referred to bail, the action against appellant was docketed in the Criminal Docket, and appellant was found guilty and convicted of the violation of the ordinance) and the fact that the ordinance itself refers to the penalty imposed as a fine, led him to reasonably believe the violation of the ordinance was criminal. While this case exhibits certain indices of a criminal action, the rule laid down in Commonwealth v. Ashenfelder, supra, and York v. Baynes, supra, is still applicable. Indeed, in Commonwealth v. Ashenfelder, Id. at 525, 198 A.2d at 517, the Supreme Court held:

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 instituted by the issuance of a warrant -- which the record before us does

[ 36 Pa. Commw. Page 573]

    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.

Thus, we must affirm the action of the lower court in dismissing this appeal.

Our conclusion is further buttressed by a recent amendment to Rule 67, adopted on May 26, 1977, effective July 1, 1977. Rule 67 now reads in pertinent part:

(a) After conviction by an issuing authority in any summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, a defendant may appeal to the court of common pleas of the judicial district in which the conviction occurred. (Emphasis in original.)

The accompanying Comment to Rule 67 has also been amended and clearly indicates that the purpose behind the amendment of Rule 67 was to clarify its application to summary convictions for violations of municipal ordinances.

The 1977 amendment makes clear that the rule applies to appeals from summary convictions in prosecutions for violations of municipal ordinances which provide for the possibility of imprisonment. The Rules of Criminal Procedure are applicable generally to these proceedings. See, e.g., Rules 3(k) and 3(f), Chapter 50 (Summary Cases), and Chapter 6000.

[ 36 Pa. Commw. Page 574]

The narrow holding in City of Easton v. Marra, 230 Pa. Super. 352, 326 A.2d 637 (1974), Page 574} is not in conflict, since the record before the court did not indicate that imprisonment was possible under the ordinance there in question. (Emphasis in original.)

The ordinance in the instant case does not provide for imprisonment upon conviction or upon failure to pay a fine.*fn3 Hence, this clarifying amendment to Rule 67 makes it abundantly clear that the rule set down in Commonwealth v. Ashenfelder, supra, and York v. Baynes, supra, remains viable.

Accordingly, we will enter the following

Order

Now, September 8, 1977, the order of the Montgomery County Court of Common Pleas, Criminal Division, in No. 4709, October Term, 1975, dated July 26, 1976, dismissing the appeal of Louis J. Carter from a conviction of a local ordinance, is affirmed.

Judge Kramer did not participate in the decision in this case. See Pa. R.A.P. 3102(d).

Disposition

Affirmed. Order modified. Case remanded.


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