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COMMONWEALTH PENNSYLVANIA v. JOEL ZISHOLTZ AND EMILY ZISHOLTZ (07/23/82)

filed: July 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JOEL ZISHOLTZ AND EMILY ZISHOLTZ, APPELLANTS



No. 2268 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal, of Montgomery County at Misc. No. 5073 of 1979.

COUNSEL

Malvin L. Skaroff, Philadelphia, for appellant.

Thomas E. Waters, Jr., City Solicitor, and Ronald T. Williamson, Assistant District Attorney, Norristown, did not file a brief on behalf of Commonwealth, appellee.

Spaeth, Beck and Lipez, JJ.

Author: Spaeth

[ 302 Pa. Super. Page 191]

This is an appeal from judgments of sentence for summary violations of Section 58-17 of the Abington Township Code. Appellants contend that they should be discharged because the evidence presented at trial was insufficient to sustain the convictions. We agree and therefore order the judgments of sentence vacated and appellants discharged.

Section 58-17 of the Abington Code provides:

No person shall keep or harbor any animals in the township so as to create offensive odors, excessive noise or unsanitary conditions which are a menace to the health or safety of the public, or otherwise permit the commission or existence of a nuisance as defined hereinafter.

The charge that appellants violated this provision arose from appellants' keeping of two pet peafowl -- a peacock and a peahen.

The Commonwealth presented the testimony of one witness, Edwin H. Rogers, the Health Inspector of Abington Township. N.T. 5. Mr. Rogers observed appellants' home on numerous occasions between September 25, 1978, and September 17, 1980. At various times appellants had several exotic pets on their premises: a wallaby, two pigmy goats, a llama, and a peacock. After December 1978, however, appellants, at the request of the township, got rid of all of

[ 302 Pa. Super. Page 192]

    their pets except for the peacock. Sometime later, by September 17, 1979, appellants got a peahen, and it is the conduct of appellants' peacock and peahen that is at issue here. Mr. Rogers said that he "heard the peacock on a couple of occasions, but most recently this morning [September 17, 1980] -- when I walked on the property, it let out sort of a 'honk.'" N.T. 9. Mr. Rogers also testified that he had received some complaints concerning appellants' pets, but it is unclear whether these complaints were about the peafowl or the other pets. Id. None of the complainants testified, and Mr. Rogers admitted on cross-examination that at least one neighbor, who apparently complained about the other pets, told him that she did not mind the peacock. N.T. 12.

Appellant Joel Zisholtz testified in his own defense. He admitted having the two peafowl, but testified that their "honking" was no louder than a dog's bark or the squawking of a crow. N.T. 21-22. He said that they were ordinarily housed in the center of his three acre lot, but on cross-examination he admitted that sometimes, particularly when frightened, they have escaped from this area. Id. Appellant also admitted on cross-examination that he had received "[o]ne complaint from one neighbor out of eight," but ...


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