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ANTHONY FAMIANO v. COMMONWEALTH PENNSYLVANIA (03/25/87)

decided: March 25, 1987.

ANTHONY FAMIANO, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Commonwealth of Pennsylvania v. Anthony Famiano, Summary Appeal No. 409-85.

COUNSEL

Edward C. Harkin, for appellant.

Donald T. Petrosa, for appellee.

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

Author: Barbieri

[ 105 Pa. Commw. Page 80]

Anthony Famiano, Appellant, appeals here from an order of the Court of Common Pleas of Delaware County which dismissed his appeal of numerous summary convictions before a District Justice. The common pleas court dismissed Famiano's appeal under Pa. R. Crim. P. 86 since it was not filed within thirty days of his convictions before a District Justice. We affirm.

The essential facts can be summarized as follows. During 1983, Famiano was issued a total of forty-seven citations for violating Ordinance No. 792 of the Borough of Glenolden. Subsection 3 of Glenolden Ordinance No. 792 makes it unlawful to "park, store, or leave any motor vehicle of any kind in a wrecked, junked, stripped or abandoned condition in a place where its presence constitutes a hazard on private property." Trial was held before District Justice Peter P. Tozer on October 11, 1983, after which Famiano was found guilty of twenty of the forty-seven counts of storing junk vehicles in violation of Ordinance No. 792 and he was ordered to

[ 105 Pa. Commw. Page 81]

    pay a total of $1,145.50 in fines. No appeal was taken from those convictions.

On September 5, 1985, District Justice Tozer held a hearing pursuant to Pa. R. Crim. P. 85 to determine if Famiano was financially able to pay the $1,145.50 in fines. District Justice Tozer determined he was financially able to pay the fines and in fact Famiano paid $300 towards the fines after the hearing. After that hearing, Famiano filed an appeal in common pleas court attacking, not the finding he was financially able to pay the fines, but rather the 1983 convictions. An evidentiary hearing was held in common pleas court on February 4, 1986, after which the common pleas court dismissed Famiano's appeal as untimely. He has subsequently appealed that order to this Court pursuant to Section 762(4) of the Judicial Code, 42 Pa. C.S. ยง 762(4).

Before this Court, Famiano contends that since he received no written notice of the verdict and sentence following the 1983 summary trial and he had no recollection of being told of the verdict, sentence and of his appeal rights, he is entitled to appeal the 1983 conviction nunc pro tunc.

We shall deal first with Famiano's contention that he was never advised by District Justice Tozer of the guilty verdict, the sentence, and of his appeal rights. This is entirely a question of fact that was resolved by the common pleas court in its role as fact-finder following an evidentiary hearing. If the common pleas court's finding is supported by substantial evidence, it is binding upon this Court. Cf. Cariola v. Department of Transportation, Bureau of Traffic Safety, 66 Pa. Commonwealth Ct. 360, 444 A.2d 827 (1982) (where common pleas court takes evidence and hears matter de ...


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