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STEWARD GROFF v. COMMONWEALTH PENNSYLVANIA (08/28/86)

decided: August 28, 1986.

STEWARD GROFF, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Carbon County, in case of Commonwealth of Pennsylvania v. Steward Groff, No. 186 CR 84.

COUNSEL

William G. Schwab, for appellant.

Michael L. Ozalas, Ozalas & McKinley, for appellee.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins. Senior Judge Kalish dissents.

Author: Colins

[ 100 Pa. Commw. Page 136]

Steward Groff (appellant) seeks review of an order of the Court of Common Pleas of Carbon County which found him guilty of violating Ordinance No. 4-1968 (ordinance) of the Borough of Weissport.*fn1

[ 100 Pa. Commw. Page 137]

On July 17, 1984, appellant was given notice, pursuant to the ordinance, that he had five (5) days to remedy the open storage of an unlicensed and unregistered motor vehicle on his property. After the five-day grace period, appellant failed to remove the vehicle and was issued a citation.

Appellant was not represented by counsel at the summary hearing in which he was found guilty. At his de novo hearing, still unrepresented by counsel, appellant was again found in violation of the ordinance. After obtaining counsel, appellant's motion for post-trial relief was denied. Accompanying the denial of post-trial relief was the trial court's June 19, 1985, memorandum opinion which ordered appellant's sentence increased from Twenty five Dollars ($25.00) to Two Hundred Dollars ($200.00). The appeal from this order has been transferred to this Court from the Superior Court of Pennsylvania.

Appellant first contends that the ordinance is unconstitutional on its face and in its application to him because it does not validly and rationally serve the purpose of regulating nuisances in the promotion of the public health, safety and welfare. Appellant further argues that the trial court violated his Fifth Amendment and Pennsylvania Constitution rights (Article I, ยง 10) by increasing his sentence after it had been pronounced.

Appellant's contention that the ordinance is unconstitutional must fail. Ordinances enjoy the presumption of validity and the challenger to constitutionality has the burden of proving that the ordinance was not related to the public health, safety, or welfare. Blue Ridge Realty and Development Corporation v. Lower Paxton Township, 51 Pa. Commonwealth Ct. 349, 414 A.2d 737 (1980). The ordinance in question clearly states that its direct purpose is "to safeguard and promote the health, safety and welfare of the citizens of the borough. . . ."

[ 100 Pa. Commw. Page 138]

Keeping in mind the protection of borough residents from the potential health hazards that may result from the open storage of abandoned vehicles, "we are unable to say that the enacted zoning ordinance is not rationally related to a legitimate public end. . . ." ...


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