Appeal from the Order of the Court of Common Pleas of Fayette County in case of Commonwealth of Pennsylvania v. Eleanor R. Hill, No. 211 S.D. of 1979.
Paul V. Mahoney, Buck, Margolis, Mahoney & George, for appellant.
Gerald R. Solomon, with him William H. Soisson, for appellee.
President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judges Mencer and Palladino did not participate in the decision in this case.
Eleanor R. Hill appeals a Fayette County Common Pleas Court order imposing a $10.00 fine and directing her to remove junk items from her property. We reverse.
The Connellsville Township Ordinance No. 65-2 prohibits the storage and accumulation of junk materials on public or private land without a permit and generally regulates junk storage. The factual support for the citation of violation is simply the unlawful accumulation of junk; not so for unlicensed junk storage.*fn1
The citation references violation of "Local Ordinance 65-2, Section 7." However, Section 7 merely prescribes the penalty for violation of the six preceding sections, which comprised the regulation's substantive portions. Further, the citation described the alleged offense as "[h]aving, storing and accumulating scrap and junk materials on public or private property"; there was no allegation whatsoever concerning an unlicensed accumulation of junk. In addition, the court below found Hill guilty of "accumulating junk." The issue then is whether Hill's conviction for an accumulation of junk will stand.
First, we note that Pa. R. Crim. P. 52(1)(e) provides that every summary offense citation must contain:
a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient Page 73} to advise the defendant of the nature of the offense charged. (Emphasis added.)
Obviously, the citation was ineptly drawn when it charged violation of the penalty provision of the ordinance.*fn2 Moreover, the fact summary supporting the citation failed to advise Hill that she was in violation of a licensing ordinance. Doubtless, the essential elements of a summary offense must be set forth in the citation so that the defendant is given fair notice of the nature of the unlawful act for which he/she is charged. See Commonwealth v. Ginsberg, 143 Pa. Superior Ct. 317, 324, 18 A.2d 121, 125 (1941). Absent this compliance, as here, the citation charge of violation of Local Ordinance No. 65-2 must fall.
Hill's conviction for "accumulating junk" must also fall because, notwithstanding the municipality's right to prohibit nuisances,*fn3 it is clear that a conviction for the violation of a nuisance ordinance must be supported by evidence that the defendant had in fact maintained such a nuisance. Commonwealth v. Hanzlik, 400 Pa. 134, 139, 161 A.2d 340, ...