Commonwealth v. Moyer

35 Pa. D. & C.3d 475, 1984 Pa. Dist. & Cnty. Dec. LEXIS 169
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedApril 26, 1984
Docketno. 956 of 1983
StatusPublished

This text of 35 Pa. D. & C.3d 475 (Commonwealth v. Moyer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Moyer, 35 Pa. D. & C.3d 475, 1984 Pa. Dist. & Cnty. Dec. LEXIS 169 (Pa. Super. Ct. 1984).

Opinion

ECKMAN, J.,

On December 27, 1982, defendant Sidney Moyer, was charged with violating the Lancaster Noise Control Ordinance1 (hereafter ordinance) of the City of Lancaster, a third class city (hereafter city) and with disorderly conduct.2 At a hearing before District Justice William A. Hull, Jr., defendant was convicted of violating §§734.04(a) 734.04(b)(1)A, 734.04(b)(2) and 734.04(b)(3)A of the ordinance, but was found not guilty of disorderly conduct. Defendant appealed to this court. After a hearing de novo on September 27, 1983, defendant was convicted of violating §§ 734.04(a) and 734.04(b)(1)A only. Defendant filed a timely written motion in arrest of judgment. Briefs having been submitted by the parties, the motion is now before the court for disposition. This opinion is being written without the benefit of the notes of testimony having been transcribed.

[477]*477FACTUAL HISTORY

The evidence adduced at the hearing discloses that on Christmas Day, December 25, 1982, Officer Richard Finefrock of the City Police Department was dispatched to defendant’s home on South Shippen Street, Lancaster, Pennsylvania, pursuant to a citizen’s complaint. At approximately 5:00 a. m., Officer Finefrock parked his car across the street from defendant’s home. Upon exiting his vehicle, Officer Finefrock heard sound in the form of voices coming from defendant’s cassette tape player inside defendant’s home, which became louder as he approached defendant’s premises. Officers David Aichelle and Sergeant Kenneth Armentrout were subsequently dispatched to the scene when defendant refused to cooperate with Officer Finefrock’s requests. Sergeant Armentrout heard voices from the street and the sidewalk. Officer Aichelle testified that he heard sound emanating from defendant’s cassette tape player from across the street as well as the voices of defendant and the officers.

ISSUES

Defendant has attacked the constitutionality of the ordinance in a myriad of ways. He contends that the ordinance is unconstitutional (1) because the subject area of the ordinance is preempted by the Commonwealth and the ordinance is beyond the authority delegated by the legislature and (2) that the ordinance is vague and incapable of clear understanding, overbroad, invasive of rights of privacy and places an unconstitutional burden on defendant to prove his freedom from guilt. Finally, defendant contends that the verdict was against the weight of the evidence as the prosecution failed to prove all essential elements of the charges beyond a reasonable doubt.

[478]*478DISCUSSION OF ISSUES AND LAW

A municipal ordinance is presumed to be constitutional to the same extent as an act of the Legislature. Simco Sales Service of Pennsylvania, Inc. v. Township of Lower Merion Board of Commissioners, et al., 38 Pa. Commw. 434, 394 A.2d 642 (1978). The party challenging the constitutionality of an ordinance carries the burden of proving its invalidity. Commonwealth v. Sterlace, 24 Pa. Commw. 62, 354 A.2d 27 (1976). “Where a reasonable interpretation can be adopted, which will save the constitutionality of an ordinance, it is the court’s duty to adopt it.” Kadash v. City of Williamsport, 19 Pa. Commw. 643, 650, 340 A.2d 617 (1975). With these broad principles in mind, we will address defendant’s contentions seriatim.

Initially, defendant contends that the ordinance invades a subject area preempted by the legislature and goes beyond the authority delegated by the legislature. Section 303 of the Optional Third Class City Charter Law3 (hereafter charter law), which the city has adopted as its form of government, states, inter alia:

“Each city governed by an optional form of government pursuant to this act shall, subject to the provisions of and limitations prescribed by this act, have full power to:

(2) Adopt and enforce local police ordinances of all kinds and impose penalties of fine not exceeding three hundred dollars ($300), or imprisonment for any term not exceeding ninety days, or both, for the violation thereof; ...” (Emphasis supplied.)

[479]*479Section 3044 provides:

“The general grant of municipal power contained in this article is intended to confer the greatest power of legal self-government consistent with the Constitution of this State. Any specific enumeration of municipal powers contained in this act or in any other law shall not be construed in any way to limit the general description of power contained in this article, and any such specifically enumerated municipal powers shall be construed as in addition and supplementary to the powers conferred in general terms by this article. All grants of municipal power to cities governed by an optional plan under this act, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the city ” (Emphasis supplied.) Limitations referred to in section 303 are contained in Section 3055, which provides, inter alia:

“Notwithstanding the grant of powers contained in this act, no city shall exercise powers contrary to or in limitation or enlargement of powers granted to the city by acts of the General Assembly which are:

(2) Applicable in every part of the Commonwealth.

(3) Applicable to all cities of the Commonwealth.”

Pursuant to the broad powers of section 303(2), supra, the city enacted the ordinance, which contains the following pertinent provisions that are relevant to our discussion:

“734.01 PURPOSE

Council, finding that excessive levels of sound are detrimental to the physical, mental and social well-[480]*480well-being of the residents as well as to their comfort, living conditions, general welfare and safety, and being therefore a public health and welfare hazard, hereby declares it to be necessary to provide for the greater control and more effective regulation of excessive sound and the sources of excessive sound with the City.

“734.03 DEFINITIONS

The following words, terms and phrases when used in this article shall have the meaning herein given, except where the context clearly indicates a different meaning.

(j) ‘Noise disturbance’ means any sound which:

(1) Endangers or injures the safety or health of humans or animals; or

(2) Annoys or disturbs a reasonable person of normal sensitivities; or

(3) Endangers or injures personal or real property; or

(4) Is in excess of the sound levels by zoning districts established in Section 734.05.

(m) ‘Public right of way’ means any street, avenue, boulevard, highway, sidewalk, alley or similar place which is owned or controlled by a governmental entity.

(p) ‘Property line (boundary)’ means an imaginary line drawn through the points of contact of adjoining lands, apartments, condominiums, townhouses and duplexes owned, rented or leased by different persons, a demarcation or a line of separation of properties, and also, for any two or more buildings sharing common grounds, the line drawn midway between any two such buildings.

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Bluebook (online)
35 Pa. D. & C.3d 475, 1984 Pa. Dist. & Cnty. Dec. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-moyer-pactcompllancas-1984.