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GERDA WIDMYER v. COMMONWEALTH PENNSYLVANIA (04/26/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 26, 1983.

GERDA WIDMYER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Mercer County in case of City of Sharon v. Gerda Widmyer, No. 7 Summary, 1979.

COUNSEL

Stephen J. Mirizio, for appellant.

William J. Madden, Cusick, Madden, Joyce and McKay, for appellee.

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

Author: Crumlish

[ 73 Pa. Commw. Page 582]

Gerda Widmyer appeals, asking us to find an ordinance of the City of Sharon unconstitutional. We refuse to so hold and affirm the Mercer County Common Pleas Court.

Once again, this Court is called upon to address issues so obviously meritless and so patently ridiculous that our procedural and intellectual processes are strained to the breaking point.*fn1 At the risk of propelling this case to the stratosphere of further appellate review, we repeat that

     the outrageous imposition on the administration of justice . . . is the waste of the time of valuable manpower at all phases of the litigation and talent that must, of necessity, contribute to the delay of justice and its denial, to say nothing of the unjustified cost to the already overtaxed citizens. . . .

Gannon v. Upper Merion Township, 16 Pa. Commonwealth Ct. 630, 635, 330 A.2d 537, 540 (1974).

The facts are undisputed. At the bottom of this controversy is dog defecation which the petitioner's neighbors found offensive. They sought civil relief by

[ 73 Pa. Commw. Page 583]

    invoking a local ordinance. A district justice found Widmyer in violation and fined her $50.00. She then sought relief in a Mercer County Common Pleas Court de novo hearing. Having failed there,*fn2 she now climbs the ladder of appellate review.

In Boyle v. O'Bannon, Pa. , A.2d (No. 81-3-442, filed March 31, 1983), we were admonished by our Supreme Court to be ever mindful of a litigant's right of access to the courts, regardless of the frivolity of the action, lest we find ourselves "on the threshold of judicial tyranny." Slip op. at 5. Despite the fact that Widmyer "has caused an inordinate consumption of the valuable time of an already overburdened judiciary, as well as the waste of precious tax dollars expended to provide a rational legal system, . . ." Dissenting Opinion by Justice Nix, slip op. at 5, we shall, as Justice Larsen instructed this Court, "avoid despotic governmental action," slip op. at 5, and address the merits of this patently absurd appeal.

Before us, Widmyer posits several arguments. First, the ordinance is unconstitutionally vague because it failed to adequately notify her that this persisting, obnoxious aroma could indeed be construed to be a violation of the ordinance.

Any dog or cat which by frequent or habitual barking, howling, screeching, yelping or baying, or in any way or manner injures or disturbs the quiet of any person or the community, or which disturbs or endangers the comfort, repose or health of persons, is hereby declared to be committing a nuisance. (Emphasis in original.)

In determining whether an ordinance is unconstitutionally vague "[t]he test is whether the statute gives a person of ordinary intelligence a reasonable opportunity

[ 73 Pa. Commw. Page 584]

    to know what is prohibited so that he may act accordingly." Fink v. Board of Education of the Warren County School District, 65 Pa. Commonwealth Ct. 320, 327, 442 A.2d 837, 841 (1982). Clearly, in our judgment, a strong aroma which carried to her curbstone constitutes a disturbance or endangers the comfort, repose or health of persons in the neighborhood, and a person of ordinary intelligence would have regarded it as a violation of this ordinance.*fn3

Affirmed.*fn4

Order

The order of the Mercer County Common Pleas Court, No. 7 Summary 1979 dated February 13, 1980, is affirmed.

Disposition

Affirmed.


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