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CLIFFORD AMOS v. COMMONWEALTH PENNSYLVANIA EX REL. BOROUGH WAYNESBURG (07/31/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 31, 1979.

CLIFFORD AMOS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA EX REL. BOROUGH OF WAYNESBURG, APPELLEE

Appeal from the Order of the Court of Common Pleas of Greene County in case of Commonwealth of Pennsylvania, ex rel. Borough of Waynesburg v. Clifford E. Amos, No. 8 August Term, 1978 (Misc.).

COUNSEL

Anthony J. Seneca, with him Seneca & O'Dell, P.C., for appellant.

Charles J. Morris, with him Pollock, Pollock & Thomas, for appellee.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three.

Author: Per Curiam

[ 44 Pa. Commw. Page 548]

Clifford Amos appeals from the order of the Court of Common Pleas of Greene County which found him

[ 44 Pa. Commw. Page 549]

    guilty of violating Ordinance 729.02*fn1 of the Borough of Waynesburg (Borough). Amos raises three questions on appeal: (1) whether the ordinance is unconstitutional in that it seeks to declare certain activities as nuisances per se; (2) whether the Borough is obliged to prove beyond a reasonable doubt that Amos maintained a nuisance in fact on his property; and (3) whether the ordinance is unconstitutionally vague.

With regard to the first two related issues, it is apparent, as the Borough stresses in its brief, that neither was raised by Amos before the lower court.*fn2

It has been consistently held that matters not properly raised in, or considered by, the tribunal below cannot be considered on appeal, even

[ 44 Pa. Commw. Page 550]

    though such matters involve constitutional questions. Indeed, the requirement that the trial court be given an opportunity to fully consider and rule on matters before those matters may be considered by an appellate court is essential to the proper functioning of modern judicial machinery.

Richland Township v. Hellerman, 30 Pa. Commonwealth Ct. 438, 441-42, 373 A.2d 1367, 1369 (1977) (citation omitted.) Accordingly, we will not consider either question.

Turning to the final issue, Amos contends that the ordinance is so unclear that it should be declared void. As has been stated elsewhere, a legislative enactment, including a local ordinance, will be deemed invalid "only if it is so vague and indefinite that courts are unable to determine with any reasonable degree of certainty the intent of the legislative body or so incomplete, conflicting and inconsistent in its provisions that it cannot be executed." McCoy v. Lincoln Intermediate Unit No. 12, 38 Pa. Commonwealth Ct. 29, 36, 391 A.2d 1119, 1123 (1978). Amos points to comments made by the lower court at the hearing which would seem to suggest some concern about what constitutes an "inoperative car" within the meaning of the ordinance.

Having carefully reviewed Ordinance 729.02 and the record in this matter, we do not believe the ordinance is so vague as to warrant its being invalidated. Nor do we perceive that the lower court was uncertain as to what the ordinance sought to abate. Rather, the court's concern related to the factual question of when a junk car becomes an antique. This concern was motivated by the fact that Amos testified that he had restored other vehicles and that he was intent upon restoring at least one of the vehicles in question to antique car status. In any event, we do not believe that the ordinance is unconstitutionally vague, nor that it

[ 44 Pa. Commw. Page 551]

    was improperly applied, and therefore will affirm the court below.

Per Curiam Order

And Now, this 31st day of July, 1979, the order of the Court of Common Pleas of Greene County dated November 17, 1978, is hereby affirmed.

Disposition

Affirmed.


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