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COMMONWEALTH PENNSYLVANIA v. STEPHEN M. SADECKY (03/06/79)

decided: March 6, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
STEPHEN M. SADECKY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Stephen M. Sadecky, No. SA 587 of 1973.

COUNSEL

William M. Acker, for appellant.

Edward J. I. Gannon, with him Howard J. Hazlett, for appellee.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 41 Pa. Commw. Page 87]

Stephen M. Sadecky appeals to this Court from an order of the Allegheny County Court of Common Pleas which found him guilty of violating Ordinance 2025 (Ordinance) of the Borough of Tarentum (Borough). Sadecky contends that the Ordinance imposes unconstitutional restraints upon or unlawfully discriminates against his use of his realty and that the evidence was insufficient to prove his guilt beyond a reasonable doubt. We affirm.

In 1974, this Court reversed the lower court's holding that the same Ordinance was facially unconstitutional. A venire facias de novo was awarded for a determination of whether the factual matrix of the case after the presentation of evidence would show that unconstitutional restraints were imposed upon Sadecky by the Ordinance or that some provisions of the Ordinance were valid and others were invalid as applied to him. Borough of Tarentum v. Sadecky, 16 Pa. Commonwealth Ct. 163, 329 A.2d 328 (1974). After the hearing held pursuant to this Court's order of 1974, the Court of Common Pleas of Allegheny County, Civil Division, found Sadecky guilty. In his memorandum opinion supporting the court's verdict, Judge

[ 41 Pa. Commw. Page 88]

Farino held that the Borough had authority to enact the Ordinance and that the Ordinance did not impose restraints upon or discriminate against Sadecky.

In his appeal to us, Sadecky contends that the Ordinance is unconstitutional as applied to his activities and that the Borough's evidence was insufficient to find him guilty beyond a reasonable doubt, the standard of proof required by the enforcement provisions of the Ordinance.

With respect to the constitutional question, we agree with the learned trial judge that the Borough had authority to enact the ordinance in question. Section 1202(29) of the Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 46202(29), provides that boroughs have the authority:

(29) [JUNK YARDS] To prohibit, regulate and license the establishment and maintenance of junk yards, salvage yards and other places used and maintained for the collection, storage and ...


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