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HENRY KISSINGER v. COMMONWEALTH PENNSYLVANIA (03/01/85)

decided: March 1, 1985.

HENRY KISSINGER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Commonwealth of Pennsylvania v. Henry Kissinger, No. 2420 C.D. 1982.

COUNSEL

John J. Robinson, Jr., with him, W. Scott Staruch, Laws and Staruch, for appellant.

Mary D. France, Cleckner and Fearen, with her, Robert A. Enders, for appellee.

Judges Rogers and Craig and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge Williams, Jr. did not participate in the decision in this case.

Author: Barbieri

[ 88 Pa. Commw. Page 47]

Appellant, Henry A. Kissinger, appeals here an order of the Court of Common Pleas of Dauphin County denying his motion of February 23, 1983 to dismiss the pending criminal action against him based on the double jeopardy clauses of the federal*fn1 and state*fn2 constitutions, and Section 109 of the Crimes Code.*fn3

On October 18, 1980, the Supervisors of Upper Paxton Township (Township) issued a notice to Appellant ordering him to connect his improved properties in the Township to the sewer system operated by the Millersburg Area Authority (Authority). After Appellant failed to make the required connection within 60 days, he was convicted on June 10, 1981, of the summary offense of violating Chapter 18, Pt. I, § 1 of Upper Paxton Township Ordinance 9-76 (September 9, 1976) (Ordinance), which reads:

[ 88 Pa. Commw. Page 48]

The owner of any improved property which is located in this Township and is accessible to and whose principal building is within one hundred fifty (150) feet of the sewer system, shall connect such improved property therewith in such a manner as this Township and the Authority may require, within sixty (60) days after notice to such owner from this Township to make such connection. . . .

Pursuant to Chapter 18, Pt. 1, § 5 of the Ordinance, Appellant was fined $300.00 plus costs.*fn4 On June 9, 1982, Appellant was again served with notice to connect the same properties to the same sewer system and he again failed to obey the notice. Over Appellant's plea of double jeopardy, a District Justice entered a conviction against Appellant for violating Chapter 18, Pt. I, § 1 of the Ordinance and fined Appellant $300.00 plus costs.

Appellant took an appeal in the Court of Common Pleas of Dauphin County pursuant to Pa. R. Crim. P. 67 and thereafter moved to dismiss the charges on the grounds of double jeopardy, as set forth in his omnibus pretrial motion. The court of common pleas denied Appellant's motion to dismiss, based on Appellant's failure to allege that imprisonment was possible for violation of the Ordinance.

[ 88 Pa. Commw. Page 49]

Appellant contends: (1) he was not required to allege that he faced the possibility of imprisonment for violating the Ordinance, and (2) the second prosecution for failing to connect to the Authority's sewers was barred by the double jeopardy clauses of the ...


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