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MATTHEW MCSWAIN v. COMMONWEALTH PENNSYLVANIA (01/23/87)

decided: January 23, 1987.

MATTHEW MCSWAIN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Mercer County in the case of Commonwealth of Pennsylvania, City of Farrell v. Matthew McSwain, No. 22 Summary Appeal, 1984.

COUNSEL

Carl M. Moses, for appellant.

Anthony Perfilio, Rodgers, Perfilio, Heiman & Sewinsky, P.C., for appellee, City of Farrell.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Colins.

Author: Colins

[ 103 Pa. Commw. Page 327]

Matthew McSwain (appellant) was convicted of violating an ordinance*fn1 of the City of Farrell, relating to certification of rental dwellings. He was sentenced by the district justice to pay a One Hundred Dollar ($100.00) fine and court costs. On July 30, 1984, he appealed his conviction to the Court of Common Pleas of Mercer County, which affirmed his conviction and reimposed the fine. Although appellant does not contest the municipality's factual averments, he argues that the ordinance is unconstitutional as an illegal exercise of the Commonwealth's police power and, therefore, that his summary conviction should be reversed.

Section 2.1 of the ordinance provides that no dwelling or dwelling unit becoming vacant shall be leased, rented, or occupied until the city Health Officer performs an inspection to make certain that the dwelling substantially conforms to the Housing Code. The ordinance further provides that when the dwelling becomes vacant, the owner shall so notify the Health Officer who will perform the inspection within seven days. Specific housing standards necessary for certification are described in the ordinance. Appellant failed to comply with these procedures in that one rental unit which he owned in the City of Farrell became vacant and was re-rented without notification to or certification by the Health Officer.

[ 103 Pa. Commw. Page 328]

On appeal, appellant contends that the ordinance violates the Pennsylvania and United States Constitutions in the following ways: (1) by denying him life, liberty, or property without due process of law in that the ordinance is not necessary for the public welfare; (2) by denying him equal protection of the law in that it does not apply equally and uniformly to all persons similarly situated; and (3) by allowing the government to circumvent Fourth Amendment prohibitions against unreasonable searches and seizures. For the reasons hereinafter stated, we shall affirm the trial court.

Preliminarily, we note that appellant did not raise the Fourth Amendment issue before the trial court and issues not raised before the trial court are deemed waived on appeal. Pa. R.A.P. No. 302(a). Waiver may not be avoided by alleging that the issue is of constitutional dimension. Commonwealth ex rel. Bulson v. Bulson, 278 Pa. Superior Ct. 6, 419 A.2d 1327 (1980). Because appellant did not raise this issue before the trial court, we find it waived.

We shall also dismiss appellant's due process and equal protection challenges for the reasons hereinafter stated.

I. Due Process

As a measure taken by the City of Farrell to ensure that rental property within the City is safe, healthful, and habitable, the ordinance requiring landlords to notify the City of a change in tenants in rental property and allow inspection of the premises for health and safety violations is a proper exercise of the City's police powers. The power of state and local authorities to act in the areas of health and safety and, thus, within their police powers, is as comprehensive as the ...


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