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ABRAHAM A. CONSTANTINO v. FOREST HILLS BOROUGH (08/18/89)

decided: August 18, 1989.

ABRAHAM A. CONSTANTINO, APPELLANT,
v.
FOREST HILLS BOROUGH, APPELLEE



Appeal from Allegheny County Common Pleas Court, Honorable Richard G. Zeleznik, Judge. * * THIS CASE IS TRANSFERRED TO THE COMMONWEALTH COURT OF PENNSYLVANIA FROM SUPERIOR COURT OF PA. TO NO. 1273 PITTSBURGH, 1988 AND FROM THE COURT OF COMMON PLEAS ALLEGHENY COUNTY TO NO. SA1876 of 1986.

COUNSEL

Arnold H. Caplan, Pittsburgh, for appellant.

Sanford Kelson, Kelson & Slomski, Pittsburgh, for appellee.

Doyle, Palladino and Smith, JJ. Palladino, Judge, dissenting.

Author: Doyle

[ 128 Pa. Commw. Page 409]

Abraham A. Constantino (Appellant) appeals*fn1 from an order of the Court of Common Pleas of Allegheny County adjudging Appellant guilty of violating the Forest Hills Borough (Borough) zoning ordinance, and ordering him to pay a fine of $200.00 plus costs.

Appellant owns a corner lot in the Borough at the intersection of Carmel Court and Filmore Road. His home fronts on Carmel Court. In 1986, the Borough's zoning officer received complaints from motorists that a row of shrubbery in Appellant's side yard blocked their vision of oncoming traffic at the Carmel Court-Filmore Road intersection. After receiving the complaints, the zoning officer notified Appellant that his shrubs were in violation of section 701.12 of the Borough's zoning ordinance*fn2 (ordinance). The shrubs are five feet tall and run alongside Filmore Road. The zoning officer gave Appellant fifteen days to trim his shrubs down to twenty-four inches, the maximum height allowed under the ordinance's definition of fence.*fn3

[ 128 Pa. Commw. Page 410]

Appellant did not trim his shrubs, and, on August 21, 1986, the zoning officer issued a citation. On October 15, 1986, after a hearing before a district justice, Appellant was adjudged guilty and fined $200.00 plus costs. Appellant appealed to the trial court. A trial de novo was held and, in an order filed on July 25, 1988, the trial court adjudged Appellant guilty of violating section 701.12 of the ordinance; Appellant was ordered to pay a $200.00 fine plus costs. On August 8, 1988, Appellant filed a motion for post-trial relief, and on August 23, 1988, Appellant filed an appeal of the July 25th order to the Superior Court. The Superior Court transferred the appeal to this Court.

Initially, we must determine if Appellant has preserved any issues for appellate review. Our research discloses that in appeals from summary convictions, the Rules of Criminal Procedure apply and expressly govern actions for violation of a municipal zoning ordinance. Pa.R.Crim.P. 86(a) provides as follows:

When an appeal is authorized by law in a summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within thirty (30) days after the conviction or other final order from which the appeal is taken. The notice of appeal shall be filed with the officer of the court of common pleas designated to receive such papers.

We note the following language in the comment to rule 86: "Upon appeal from a conviction in a summary proceeding and after a finding of guilt at a trial de novo in the court of common pleas, Rule 1123 is intended to require post-verdict motions in the common pleas court." Pa.R.Crim.P. 1123 provides, in pertinent part:

(a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause

[ 128 Pa. Commw. Page 411]

    shown, allows otherwise. Argument, a hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions that are stated ...


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