decided: August 26, 1982.
PASQUINNI -- BUILDING INSPECTOR, BRENTWOOD BOROUGH
JOSEPH T. BOMBARA. BRENTWOOD BOROUGH, APPELLANT
Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Pasquinni -- Building Inspector v. Joseph T. Bombara, No. SA 302 of 1981.
Lawrence G. Zurawsky, for appellant.
John P. Spina, with him William J. Murray, for appellee.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 68 Pa. Commw. Page 447]
A District Justice found Joseph T. Bombara (Bombara) guilty of having erected a six-to-seven foot high
[ 68 Pa. Commw. Page 448]
stockade fence on his property in violation of Borough Zoning Ordinance No. 884, section 502.5*fn1 and imposed a fine of $30.00 plus costs. On appeal, after a hearing, the Court of Common Pleas of Allegheny County adjudged Bombara "not guilty" of violating the ordinance. The Borough and its building inspector (appellants) then appealed to this Court, characterizing their action as one seeking review of an error of law committed by the trial court's misinterpretation and misconstruction of the borough ordinance, rather than as one seeking review of a verdict of "not guilty." Bombara then filed a motion to dismiss the appeal and to assess attorney's fees and costs.
Disposition of this case is governed by Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981), in which our Supreme Court held that a verdict of acquittal in a criminal proceeding*fn2 cannot be reviewed without placing the defendant in double jeopardy in violation of his constitutional rights, even where an acquittal is based upon an "egregiously erroneous foundation." Id. at 392, 426 A.2d at 605 (quoting
[ 68 Pa. Commw. Page 449]
borough zoning ordinance and, as such, cannot be deemed vexacious or frivolous.
We will, therefore, grant the motion to dismiss and deny the request for an award of attorney's fees and costs.
And Now, this 26th day of August, 1982, the appellee's motion to dismiss the appeal in the above-captioned matter is hereby granted and the appellee's request for an award of attorney's fees and costs is denied.
Motion to dismiss granted. Request for attorneys' fees and costs denied.