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EDWARD H. FISHER v. COMMONWEALTH PENNSYLVANIA (05/16/80)

decided: May 16, 1980.

EDWARD H. FISHER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lycoming County in case of Commonwealth of Pennsylvania v. Edward H. Fisher, No. 77-11,173.

COUNSEL

Edward H. Fisher, for himself, appellant.

Charles F. Greevy, III, Assistant County Solicitor, for appellee.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 51 Pa. Commw. Page 405]

Edward H. Fisher (appellant) was convicted on February 26, 1979 of violating the Lycoming County Subdivision and Land Development Ordinance (Ordinance), a misdemeanor. He appeals to this Court from an order of the Court of Common Pleas of Lycoming County sentencing him to pay a fine of $650.00 and the costs of prosecution. He alleges that the Ordinance is unconstitutional and that his right to a speedy trial was violated.

The Ordinance in question reads in pertinent part:

9.04 SANCTIONS

Any person, partnership, or corporation who or which being the owner, or agent of the owner of any lot, tract or parcel of land . . . sells, transfers or agrees or enters into an agreement to sell any land in a subdivision or land development whether by reference to or by other use of a plat of such subdivision or land development or otherwise, or erects any building thereon, unless and until a final plat has been prepared in full compliance with the provisions of this act and of the regulations adopted hereunder and has been recorded as provided herein, shall be guilty of a misdemeanor, and upon conviction thereof, such person, or the members of such partnership, or the officers of such corporation, or the agent of any of them, responsible for such violation shall pay a fine not exceeding one thousand dollars ($1000) per lot or parcel or per dwelling within each lot or parcel. (Emphasis added.)

[ 51 Pa. Commw. Page 406]

With the exception of the portion italicized above, this Ordinance has the same wording as the enabling legislation, Section 515 of the Pennsylvania Municipalities Planning Code (MPC).*fn1 The appellant here had conveyed 8.8 acres of his land to the Transcontinental Gas Pipeline Corporation, and he made this conveyance without the prior approval of the Lycoming County Planning Commission (Planning Commission) as required by the Ordinance.

The appellant argues first that his action was not in violation of the Ordinance because he did not subdivide his land with "reference to or by other use of a plat." The Ordinance however does not require reference to or use of a plat to establish a violation, rather it clearly states that the subdivision may not be made "with reference to a plat . . . or otherwise."

The appellant further contends that to extend liability under this section to those instances where there is no plat is unconstitutional because it constitutes an arbitrary restraint on his freedom to use his land and is therefore an unreasonable exercise of the county's police power. He bears a heavy burden, of course, in challenging the constitutionality of the Ordinance, for there is a presumption that such legislation is constitutional. Borough of Tarentum v. Sadecky, 16 Pa. Commonwealth Ct. 163, 329 A.2d 328 (1974). In fact, in a prior case where this same appellant challenged the constitutionality of this same Ordinance, we held that "[w]hether the exercise of police power to regulate health, safety, morals, and general welfare in a given instance outweighs private rights is ...


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