Summary
In Douglass Township v. Badman, 206 Pa. Super. 390, 213 A.2d 88, the Pennsylvania court on facts similar to the instant case reached the same conclusion as we do here.
Summary of this case from Morin v. Zoning Bd. of LincolnOpinion
June 21, 1965.
September 16, 1965
Appeals — Summary convictions before justice of the peace — Duty of court below to adjudge guilt of defendant and impose sentence — Jurisdiction of Superior Court — Act of August 14, 1963, P.L. 819, § 1.
1. Upon an appeal from a summary conviction it is the duty of the court of common pleas or quarter sessions to find the appellant guilty or not guilty and, if guilty, impose sentence.
2. In this case, it was Held that the lower court should have entered a judgment of sentence instead of merely sustaining the conviction before the justice of the peace, which is not a court of record.
3. Under the Act of August 14, 1963, P.L. 819, § 1, the jurisdiction of the Superior Court is extended to appeals from orders of the common pleas and quarter sessions courts "which involve summary proceedings before aldermen, magistrates, or justices of the peace".
Municipalities — Townships — Regulation of mobile homes — Location within mobile park — Prohibition against removal of wheels — Words and Phrases — "Portable".
4. On appeal by defendant following summary conviction for violation of a township ordinance, in which it appeared that the ordinance required all mobile homes thereafter brought into the township to locate within a mobile home park and prohibited the removal of the wheels from such mobile homes in the park, and defined a mobile home as "any portable structure or vehicle, titled or registered as a vehicle, so constructed and designed as to permit occupancy thereof for dwelling or sleeping purposes"; and that defendant moved a mobile home onto his own land in the township, removed the wheels, placed it on a permanent foundation, and used the home as the family residence; it was Held that defendant's home at the time he was arrested was no longer a "mobile home" as defined in the ordinance, and that his conviction should be reversed.
5. "Portable" means "capable of being carried; easily or conveniently transported".
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, FLOOD, JACOBS, and HOFFMAN, JJ.
Appeal, No. 320, Oct. T., 1965, from order of Court of Common Pleas of Montgomery County, No. 64-5620, in case of Douglass Township v. LeRoy Badman. Order reversed.
Appeal by property owner from summary conviction for violation of township ordinance.
Order entered dismissing appeal and sustaining conviction, opinion by FORREST, P.J. Property owner appealed.
John R. Henry, for appellant.
Harold H. Prince, with him Prince Prince, for appellee.
G. Thomas Miller, for amicus curiae.
WATKINS, J., dissented.
Argued June 21, 1965.
In December, 1963, the supervisors of Douglass Township, a second class township of Montgomery County, enacted an ordinance which required all mobile homes, as defined in the ordinance, thereafter brought into the township to locate within a mobile home park and prohibited the removal of the wheels from such mobile homes in the park. After the enactment of the ordinance the appellant moved a mobile home onto his own land in the township, removed the wheels, placed it on a permanent foundation and used the home as the family residence. Appellant was convicted in a summary proceeding before a justice of the peace on the charge of parking a mobile home on his property and removing the wheels therefrom and was fined under the ordinance's penalty provisions. An appeal was allowed to the Court of Common Pleas of Montgomery County which dismissed the appeal without hearing testimony and sustained the conviction.
A procedural matter deserves attention before we discuss the merits of the case. Upon an appeal from a summary conviction it is the duty of the court of common pleas or quarter sessions to find the appellant guilty or not guilty and, if guilty, impose sentence. Commonwealth v. Miller, 173 Pa. Super. 168, 96 A.2d 153 (1953). Thus the lower court should have entered a judgment of sentence instead of merely sustaining the conviction before the justice of the peace, which is not a court of record. In light of our disposition of the case we will not reverse on this procedural point.
We now have jurisdiction to hear this appeal by virtue of the Act of August 14, 1963, P.L. 819, § 1, 17 P.S. 184.1, extending our jurisdiction to appeals from orders of the common pleas and quarter sessions courts "which involve summary proceedings before aldermen, magistrates, or justices of the peace."
Prior to that act we did not have such jurisdiction. See Bell Appeal, 396 Pa. 592, 152 A.2d 731 (1959), and Commonwealth v. Hanzlik, 191 Pa. Super. 460, 157 A.2d 97 (1960).
Appellant urges that his conviction cannot stand because the ordinance is unconstitutional. We need not decide the constitutionality of the ordinance in this case because we are of the opinion that appellant's home at the time he was arrested was no longer a "mobile home" as defined in the ordinance. For this reason the conviction must be reversed.
Mobile home is defined in the ordinance as "any portable structure or vehicle, titled or registered as a vehicle, so constructed and designed as to permit occupancy thereof for dwelling or sleeping purposes." (emphasis added) Since both appellant and appellee agree that appellant's home rests on a permanent foundation with the wheels detached, we fail to see how this home can qualify as a " portable structure or vehicle". "Portable" is defined in Webster's New Third International Dictionary as "capable of being carried; easily or conveniently transported . . ." The township has not proved that this home in its present state is a mobile, rather than a fixed, dwelling, and we will not attempt to stretch the definition of "mobile home" to cover the factual situation presented by this meager record.
Order reversed and appellant discharged.
WATKINS, J., dissents.