Plains Tp. v. Krasner

• Decision Date: 22 December 1972
• Parties: PLAINS TOWNSHIP, Appellant, v. John KRASNER, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 627

298 A.2d 627

7 Pa.Cmwlth. 56

PLAINS TOWNSHIP, Appellant, v. John KRASNER, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 2, 1972.

Decided Dec. 22, 1972.

Joseph C. Giebus, Wilkes-Barre, for appellant.

Michael J. Lewis, Jr., Wilkes-Barre, for appellee.

Before BOWMAN, P.J., and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS, and BLATT, JJ.

MENCER, Judge.

This is an appeal from the order of the Court of Common Pleas of Luzerne County reversing the conviction, in a summary proceeding, of John Krasner (Krasner) for violation of the Township of Plains (Plains) zoning ordinance.

Plains, a first class township, duly adopted a zoning ordinance which provided, inter alia, that it was necessary to apply for and obtain a permit prior to conducting a business in the Township. Section 9.061 of the zoning ordinance stated:

'Any person, firm or corporation violating any regulation in, or any provision of, this Ordinance or any amendment or supplement thereto, shall be deemed guilty of a Misdemeanor and, upon conviction thereof, shall be fined not more than One Hundred ($100.00) Dollars, or imprisoned not more than ten (10) days. . . .' (Emphasis supplied.)

The Act of July 31, 1968, P.L. 805, No. 247, 53 P.S. § 10101 et seq., known as the 'Pennsylvania Municipalities Planning Code', provides, in Section 616 (53 P.S. § 10616), under the hearing, 'Enforcement penalties', as follows:

'Any person, partnership or corporation who or which shall violate the provisions of any zoning ordinance enacted under this act or prior enabling laws shall, upon conviction thereof in a Summary proceeding, be sentenced to pay a fine of not more than five hundred dollars ($500). 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 sixty days. . . .' (Emphasis supplied.)

For several weeks prior to October 29, 1971, Krasner was operating a bookstore in a trailer in the Township of Plains without a zoning permit to operate such a business and without having made application, as required by the ordinance, to obtain such a permit. On October 29, 1971, Krasner was personally served a notice of violation which informed him that he was in violation of Sections 9.021 and 9.022 of the zoning ordinance and subject to a Summary conviction if he continued in violation. Krasner continued operating his bookstore without applying for or obtaining the required premit. The zoning officer for Plains filed a complaint charging Krasner with violation of Sections 9.021 and 9.022 of Plains' zoning ordinance.

The complaint was duly served personally on Krasner and the matter came on for hearing before the District Magistrate as a Summary proceeding. Krasner was found guilty as charged and fined $100 and required further to pay costs of $11. Krasner appealed to the Court of Common Pleas of Luzerne County, and that Court set aside his conviction on the reasoning that, since the zoning ordinance labeled the violation involved as a misdemeanor, an indictable offense, the District Justice could not convict for 'offenses which are indictable'. We must reverse.

This appeal is controlled by the case of Commonwealth v. Schaeffer, 98 Pa.Super. 265 (1930). In Schaeffer, the defendant was found guilty in a summary proceeding for violating a borough building ordinance, which authorized the imposition of a fine not exceeding $300 and...