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JIM JENKINS (SHRUBS-N-STUFF) v. COMMONWEALTH PENNSYLVANIA (12/03/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 3, 1982.

JIM JENKINS (SHRUBS-N-STUFF), APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Jim Jenkins (Shrubs-N-Stuff) v. Commonwealth of Pennsylvania, No. SA 1333 of 1980.

COUNSEL

Michael J. Seymour, Feczka & Seymour, for appellant.

Victor R. Delle Donne, with him David F. Toal, Baskin and Sears, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 70 Pa. Commw. Page 242]

Jim Jenkins appeals an Allegheny County Common Pleas Court order which found that he had violated a Borough of Bethel Park zoning ordinance. We vacate and remand.

In 1959, a garden center was established on property zoned for commercial use and an adjacent lot zoned R-3 residential served as the garden center's storage area. In 1977, Jenkins leased the garden center and continued to use the adjacent parcel. He was cited for a violation of the zoning ordinance prohibiting the use of residential property for commercial purposes, and he was subsequently adjudged guilty by a district justice. On appeal, the common pleas court conducted a de novo hearing and affirmed the district justice's decision.

Upon reviewing the record, we conclude that we are unable to reach the merits of this appeal.

[ 70 Pa. Commw. Page 243]

An appeal from a district justice is a summary conviction proceeding which requires that the court of common pleas, after its de novo review, enter a judgment of either guilty or not guilty. County of Allegheny v. Liss, 60 Pa. Commonwealth Ct. 100, 430 A.2d 1033 (1981). A simple affirmance of the district justice's decision is insufficient. Liss. Here, the trial court's opinion and order merely affirm the district justice's conviction, making no declaration of Jenkins' innocence or guilt. We thus remand this case for the entry of such an order. Liss.

Vacated and remanded.

Order

The order of the Court of Common Pleas of Allegheny County in the above captioned matter is hereby vacated and the record is remanded with a procedendo to enter a verdict of guilty or not guilty.

Disposition

Order vacated. Case remanded.

19821203

© 1998 VersusLaw Inc.



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