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

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 ...


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