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decided: March 13, 1981.


No. 501 Jan. Term, 1978, Appeal from the Order of May 30, 1978 of the Commonwealth Court of Pennsylvania at Commonwealth Court Docket 1088 of 1976 reversing the order of the Court of Common Pleas of Chester County at No. 637 Misc. Term, 1975


Paul L. Bartholomew, III, Chadds Ford, for appellant.

Ross A. Unruh, Kennett, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files a concurring opinion. Nix, J., concurs in the result.

Author: Larsen

[ 493 Pa. Page 389]


On September 30, 1975, the Borough of West Chester, appellee, swore out a private criminal complaint against Dr. Amrit Lal, charging him with:

Renting an apartment(s) which is not a permitted use in an R-3 Zoning District (West Chester Code § 112-13 et seq.). Renting an apartment(s) for living purposes, in a cellar, which is not permitted (West Chester Code § 112-8). Renting the apartment(s) without having obtained a certificate of occupancy required by the Zoning Ordinance (West Chester Code § 112-54 et seq.) or a building permit required by the Building Code (BOCA Basic Building Code § 113.1).

A summary hearing was held before a district justice on November 7, 1975, at which appellant was found guilty of the charges, fined $900.00 plus costs, and sentenced to 30 days imprisonment.

Appellant filed a notice of appeal from summary conviction and a trial de novo was held on January 28, 1976 before the Honorable Thomas A. Pitt, Jr. of the Court of Common Pleas of Chester County. In an opinion filed on May 18, 1976, that court summarized the testimony of the seven witnesses presented by Borough solicitors, reviewed the sections of the various municipal ordinances which appellant had allegedly violated, reasoned that an offense of "renting" was not set forth in those sections, and concluded that the summary charges gave insufficient notice of the offenses alleged. The court then entered the following order:

AND NOW, to wit, this eighteenth day of May 1976, following hearing de novo, consideration of the hearing transcript and of briefs of counsel, and, for the reasons hereinabove stated, we find the defendant not guilty.

[ 493 Pa. Page 390]

The Borough then appealed this determination to the Commonwealth Court, re-captioning the case to read "Borough of West Chester v. Amrit Lal".*fn1 The Commonwealth Court disagreed with the court below as to the characterization of the offenses with which appellant was charged, holding that the ordinances cited did prohibit "renting an apartment" and that appellant had sufficient notice of those offenses. The Commonwealth Court then proceeded to evaluate the evidence in the record, made a factual determination that appellant had "rented" an apartment in violation of the ordinances, reversed the determination of the lower court, and "remanded for the entering of an appropriate verdict."

Pursuant to the Commonwealth Court order, the court of common pleas on June 22, 1978 entered a verdict of guilty and directed appellant to appear for imposition of sentence. We granted appellant's petition for allowance of appeal from the order of the Commonwealth Court.*fn2

Appellant argues that the order of the Commonwealth Court impermissibly subjects him to double jeopardy in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and of Article I, § 10 of the Pennsylvania Constitution. We agree.*fn3

Essentially, appellant's double jeopardy argument is that the summary proceedings in this case are criminal in nature and that, therefore, the "not guilty" verdict entered

[ 493 Pa. Page 391]

    by the trial court bars further proceedings. The Borough disputes both facets of this syllogism, maintaining that the lower court proceedings were civil, and that the "not guilty" verdict was not truly a judgment of acquittal on the merits but was, rather, a ruling tantamount to an appealable "dismissal of the Complaint on technical, legal grounds."*fn4 The Borough is wrong on both counts.

The Pennsylvania Rules of Criminal Procedure define "criminal proceedings" as including "all actions for the enforcement of the Penal Laws." Pa.R.Crim.Pro. 3(g). The penal laws include "any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty." Pa.R.Crim.Pro. 3(l). An ordinance is a "legislative enactment of a political subdivision." Pa.R.Crim.Pro. 3(k). These definitions (which were in effect in 1976) remove any doubt as to the nature of the instant proceedings -- they are criminal proceedings.

The West Chester Code, § 112-57(c), provides:

Any person who shall be convicted of a violation of any of the provisions of this chapter before any District Magistrate shall be sentenced to pay a fine of not more than three hundred dollars ($300.00), together with costs of prosecution, or to imprisonment in the county jail for a term not to exceed thirty (30) days, or both. Each day that a violation is permitted to exist shall constitute a separate offense.

Pursuant to this provision, the district magistrate found appellant guilty of three violations (hence the fines totaled $900.00) and sentenced him to 30 days imprisonment in the Chester County Farms Prison. Moreover, the Borough filed

[ 493 Pa. Page 392]

    a private criminal complaint to initiate the proceedings which were originally captioned "Commonwealth of Pennsylvania v. Amrit Lal." See note 1, supra. It is clear these proceedings were designed to enforce the penal laws of the Borough, as those terms are defined by the Rules of Criminal Procedure, and that this action was, therefore, a criminal proceeding.*fn5

Since the trial court's determination was a criminal proceeding, a verdict of acquittal cannot be reviewed without placing the defendant twice in jeopardy in violation of the constitutional proscriptions. Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43 (1978); Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193, 1195 (1980). "The [prosecution] may not appeal from a verdict of 'not guilty' entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding." Commonwealth v. Ray, 448 Pa. 307, 311, 292 A.2d 410, 411 (1972). This rule is such a fundamental precept of double jeopardy jurisprudence that it has been explicitly extended to situations where an acquittal is based upon an "egregiously erroneous foundation," Sanabria v. United States, supra 437 U.S. at 64, 98 S.Ct. at 2178, citing Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), to situations where a court sustains a defendant's demurrer to the prosecution's evidence (an ordinarily appealable order, see note 4 supra) but in addition erroneously enters a judgment of not guilty,

[ 493 Pa. Page 393]

    jeopardy claim at the earliest opportunity constituted a waiver, we declined to consider the claim waived, and disposed of it on the merits. So too in the instant case, appellant did not waive his double jeopardy claim by failing to advance it to the Commonwealth Court.

For the foregoing reasons, we reverse the order of the Commonwealth Court and reinstate the verdict of the Court of Common Pleas of Chester County.

ROBERTS, Justice, concurring.

I join that portion of the majority opinion which holds that the Borough of West Chester may not appeal from a verdict of not guilty. In our system of jurisprudence there is no right of appeal from a not guilty verdict. Such a verdict is final and conclusive. See United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) ("[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent, he may be found guilty'"); Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2179, 57 L.Ed.2d 43 (1978) ("when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous"). The Borough could not pursue an appeal, and no appellate court of this Commonwealth could have subject-matter jurisdiction. Thus the Borough's "appeal" should have been quashed sua sponte by the Commonwealth Court. For this reason, whether appellant waived his claim of double jeopardy is not an issue, and the majority's discussion of waiver is unnecessary.

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