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BOROUGH MCADOO v. LAWN SPECIALTIES (09/28/88)

decided: September 28, 1988.

BOROUGH OF MCADOO, APPELLANT
v.
LAWN SPECIALTIES, APPELLEE



Appeal from the Court of Common Pleas of Schuylkill County in the case of Commonwealth of Pennsylvania v. Lawn Specialties, No. 1584-1987.

COUNSEL

Joseph P. Semasek, for appellant.

Thomas L. Kennedy, Laputka, Bayless, Ecker & Cohn, P.C., for appellee.

Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 120 Pa. Commw. Page 121]

Before us for disposition*fn1 is a motion to quash this appeal filed by Lawn Specialties, a professional lawn care service, and the appeal by the Borough of McAdoo (Borough) from an order of the Court of Common Pleas of Schuylkill County which found that Borough Ordinance No. 113 had been preempted by state law and on this basis found Lawn Specialties not guilty of violating the ordinance.

On December 29, 1986, the Borough enacted Ordinance No. 113 which requires certain entities to obtain a license before performing any work of any type in the Borough. Chief Litchko and Patrolperson Pauline both observed Lawn Specialties performing lawn service work in the Borough. Further, Patrolperson Pauline had given an employee of Lawn Specialties notice that it needed to purchase a license. When Lawn Specialties failed to do so the officer issued a citation. At a hearing before the trial court, Neal DeAngelo, a partner in Lawn Specialties, testified that Lawn Specialties had already purchased a license from the Commonwealth of Pennsylvania, Department of Agriculture to perform work which basically consisted of the application of herbicides, pesticides and insecticides to the lawns of its residential and commercial customers. DeAngelo further testified that the license must be renewed each

[ 120 Pa. Commw. Page 122]

    year. Lawn Specialties, thus, argued that the Commonwealth had preempted the field of regulation. The trial court agreed and found Lawn Specialties not guilty for that reason. The Borough appealed the decision of the trial court and Lawn Specialties has filed a motion to quash on the basis that the prosecution cannot appeal from a verdict of not guilty.

In considering the motion to quash, we must focus upon the actions of the trial court. First, the trial court ruled that the Borough was preempted from requiring Lawn Specialties to be licensed under Ordinance No. 113 and, hence, it concluded that the ordinance was unconstitutional as applied. Second, it determined, based upon its finding of preemption, that Lawn Specialties was "not guilty." We find this second determination, however, mere surplusage; once the trial court found that preemption existed, it should not have adjudicated Lawn Specialties' guilt or innocence on the merits.

Even if, however, what we have before us is an adjudication of not guilty on the merits, case law establishes that where a municipal ordinance is at issue the matter is treated as criminal for purposes of barring the prosecution's appeal only if there exists the possibility of incarceration. See Commonwealth v. Carter, 36 Pa. Commonwealth Ct. 569, 377 A.2d 831 (1977) (harmonizing City of Easton v. Marra, 230 Pa. Superior Ct. 352, 326 A.2d 637 (1974) with Pa. R. Crim. Proc. 67 [now Pa. R. Crim. Proc. 86]).*fn2 Rule 86 pertinently states:

(a) When an appeal is authorized by law in a summary proceeding, including a prosecution for violation of a ...


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