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

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, ...


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