Constantino v. Forest Hills Borough

563 A.2d 953, 128 Pa. Commw. 407, 1989 Pa. Commw. LEXIS 583
CourtCommonwealth Court of Pennsylvania
DecidedAugust 18, 1989
Docket88 T.D. 1988
StatusPublished
Cited by6 cases

This text of 563 A.2d 953 (Constantino v. Forest Hills Borough) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Constantino v. Forest Hills Borough, 563 A.2d 953, 128 Pa. Commw. 407, 1989 Pa. Commw. LEXIS 583 (Pa. Ct. App. 1989).

Opinions

DOYLE, Judge.

Abraham A. Constantino (Appellant) appeals.1 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 ordinance2 (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.3

[410]*410Appellant 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 [411]*411shown, 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 specifically and with particularity may be argued or heard----
(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of the right to file post-verdict motions and of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.

The language in the comment to rule 1123 corresponds to that in the comment to rule 86, and states that “[t]his rule is intended to require post-verdict motions in the court of common pleas after a finding of guilt at a de novo trial in a summary case.”

Accordingly, if the Borough’s zoning ordinance contains a provision for imprisonment upon conviction or upon failure to pay a fine, then Rules 86 and 1123 govern this action. Our review of the Borough’s ordinance establishes that it does provide for imprisonment upon failure to pay a fine:

801.4 Penalties: Any person, partnership or corporation who or which shall violate the provisions of this Zoning Ordinance shall, upon conviction thereof in a summary proceeding be sentenced to pay a fine of not more than Five Hundred ($500) Dollars. In default of payment of the fine, such person, the members of such partnership or the officers of such corporation shall be liable to imprisonment for not more than (60) days in the Allegheny County Jail. Each day that a violation is permitted to exist after written notification thereof, shall constitute a separate offense.

[412]*412Given the specificity of rules 86 and 1123, it is clear that these rules govern the proceedings. It is also clear that Appellant’s motion for post-trial relief was not filed, within the requisite ten days.4 A failure to properly raise issues in post-trial motions results in a waiver of those issues. See Commonwealth v. Samuels, 326 Pa.Superior Ct. 561, 474 A.2d 632 (1984). In the present case, however, the trial court failed to advise Appellant of his right to file post-verdict motions, as required by subsection (c) of rule 1123. Instead, the trial court issued a form decision finding Appellant guilty and simultaneously sentencing him to pay a $200.00 fine. The Superior Court has disapproved this practice. Commonwealth v. Dalbon, 296 Pa.Superior Ct. 122, 442 A.2d 326 (1982). In Dalbon, the Superior Court remanded to the trial court because no post-verdict motions had been filed. We need not remand in this case because Appellant did file post-verdict motions, although untimely, and the trial court addressed those motions in its opinion. Accordingly, the record is sufficient for appellate review5 and in the interest of judicial economy, we shall address the merits of Appellant’s appeal.6

Appellant raises four issues for review: 1) whether Appellant’s shrubbery constitutes a nonconforming structure not subject to the ordinance; 2) whether the Borough’s ordinance was misapplied; 3) whether the Borough failed to establish Appellant’s guilt beyond a reasonable doubt and; 4) whether Appellant was denied his right to a speedy trial.

Appellant’s undisputed testimony was that he planted the shrubs in question in the spring of 1973. They were about five feet tall at the time he planted them and he has maintained and trimmed the shrubs since he planted them. N.T. at 32-33. The Borough’s zoning ordinance became [413]*413effective on January 1, 1974. In addition, section 701.12 was not in the original ordinance, but was added by a 1977 amendment to the ordinance. Similarly, section 1122, which defines fence, was added by the 1977 amendment.

With regard to nonconforming uses and structures, the ordinance provides as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Boney, R.
Superior Court of Pennsylvania, 2015
Commonwealth v. Mills
1 Pa. D. & C.5th 496 (Fulton County Court of Common Pleas, 2007)
Baer v. Zoning Hearing Board
782 A.2d 597 (Commonwealth Court of Pennsylvania, 2001)
Commonwealth v. Bernotas
582 A.2d 886 (Superior Court of Pennsylvania, 1990)
Constantino v. Forest Hills Borough
563 A.2d 953 (Commonwealth Court of Pennsylvania, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
563 A.2d 953, 128 Pa. Commw. 407, 1989 Pa. Commw. LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constantino-v-forest-hills-borough-pacommwct-1989.