*1 111 Hyman Appellant. Ben & Inc. Kravitz, v. Co., Mus- Argued 1963. January J., Before 11, C. Bell, Roberts, manno, O’Brien Cohen, Jones, Eagen, JJ. Passon,
Morris for appellants.
Philip P. Kalodner, appellee.
Opinion March 1963: 19, Per Curiam, Judgment affirmed. Appellant. v. Greene, *2 Mus- C.J., 1963. January Before
Argued 10, Bell, Roberts, O’Brien Cohen, Eagen, manno, Jones, JJ. appellant. Grider, II.
Thomas for Com- Attorney, District Jr., Benedict, L. Jay appellee. monwealth, by 19, March
Opinion Mr. Justice Musmanno, 1963: convicted of the accused and C. Greene
Charles he main- conduct because owned, crime Franklin tained and operated Township, Greene inmile of a a Go-Kart race track County, one-eighth were in the races length. vehicles engaging propelled familiar small four-wheeled children’s cars, running diminutive Whether gasoline engines. of 1939, of this the Act races character violated question P.L. 18 P.S. 872, §4406, June 24, §406, case. this “Whoever portion crucial of that Act reads: boister- makes or to made wilfully any loud, causes ous and or disturbance or near to peaceable residents near by, or square, highway, road, street, alley, park, lane, broken public peace common, whereby turbed or the traveling public annoyed, *3 of offense conduct.” practically
It must be noted that was noise, must, in this case the entire substance of the accusation conduct, if constitute disorderly under the it is to Act, and It is admitted boisterous loud, unseemly. ap- speed at of motor propelled go-karts traveling and loud per to miles hour make a 30 35 proximately Some- noise. Is that noise also unseemly? boisterous in proper it is not fitting when thing unseemly of organized the conventional standards to respect constituted community. or a society legally in conduct occurred unseemly A case typical Superior rel. Jenkins v. 141 ex Pa. Costello, Commonwealth his The defendant who was driving . 183. Ct pulled in front of another car, suddenly automobile block the second passage as to around so out of his ran over jumped car, He to motorist. punch ac and threatened to his motorist nose, second and pugilistic nasal threat with loud this companying persons the attention of “attracting name-calling, vile Court said that this conduct Superior nearby.” and unseemly boisterous disturbance to “loud, awas 114 well as as annoyance peaceable residents, “a made out persons near a and public highway,” case of conduct.”*
typical Pa. In the v. Palms, case (calling Superior persons Ct. one hundred some 430, Kutz themselves gathered Jehovah’s Witnesses) parade Berks town, staged where County, they aby accompanied sidewalk of the principal street, caused truck “which sound device and magnifier, when racket.” doorbells They rang entrance denied admittance the front sought at doors forced the rear In through they doors. some instances re their into leave when houses and would to do quested so. The defendant case persons comported charged with who directing Superior in the manner themselves described. The defend Court held that if it proved action of ant directed the the “Jehovah’s Witnesses” he would be recited, In Com. v. Superior 95 Pa. Ct. Cooper, 382, three in threw defendants, while number, hall, within open windows and shouted into abusing the street, reviling mayor Philadelphia and other by so “created a disturbance officials, doing, peaceable residents nearby, attracted a crowd and blocked quickly the streets direction automobiles for several honking every police When entered the low- squares.” building *4 had been ered the windows which raised defend- by the open the defendants threw windows the other ants, and “continued their building, side loud cries until a epithets opprobrious and crowd was clamoring the hall as a result of their into get boisterous and Superior Court conduct.” the affirmed conduct. disorderly convictions * supplied, italics unless otherwise indicated. All While in order to he action of an accused, evaluated precisely as need not fall disorderly conduct, within the patterns cited, just sketched the cases it is clear produce that what he does or directs must loud, boisterous disturbance and unseemly noise or his public actions must be of such a character peace or or unjustifiably broken disturbed, traveling Commonwealth in annoyed. The case at bar did at the oral or in not, argument brief, point to one decision in any jurisdiction which would categorize the race legal operation of a go-kart track or Nor anything like as conduct. it, disorderly our independent has research uncovered de- such cision.
The cardinal feature the crime of disorderly conduct is public unruliness can or lead to which tumult and disorder. in clamor Engaging outcry in the public streets a manner atten- which arouses tion and people causes draw together, whereby is the classic highway may obstructed, example At common there no specifically offense misconduct known as disorderly conduct, although disrupted peace society which order of good Union Practically was indictable. state every lists conduct in its criminal statutes today defined as variously where it is words and acts or peace morals, tend to disturb endanger health of the or of or a class safety, community, To family. of a constitute the offense persons, all the elements of the disorderly conduct, offense must be statute unless present, defined fall within clearly they the statute complained acts (27 disorderly. C.J.S., Disorderly Conduct, are 507-538). the crime of Pennsylvania
In activity peace disturbs and dignity embraces *5 pell mell community. runs of a inebriate who jostling elbowing through pushing, crowded streets, pursue protest people him in such disorderly charge vengefully is a candidate pro- shouting yelling which conduct. Vociferous public commotion becomes vokes retaliation and Exploding cannon crackers conduct. disorderly public square night in the middle of the is gro- persons burning by conduct. The tesque of crosses population to the consternation of the costumes, community, disorderly fight conduct. A attracting street numerous onlookers corner, taking spectators, constitutes vociferous sides disorderly only chosen These are illustrations might There at hundreds. which there random, nothing in of the defendant at bar behavior type could make him kin disturbers which portrayed to the given in the instances. may upset tranquillity, de-
While noise break rest, sleep stroy serenity, and fracture not of itself public peace, indispensable break feature of traveling crime of when the conduct, production If alone disturbed. of noise made out the crime of then conduct, municipalities coffers of the Commonwealth and en- monetary titled to returns could be filled fines cheering and collected from assessed football base- riveting operators, gong-clanging ball hammer fans, airplane pilots, siren-sounding car street motormen, park ambulance missile drivers, testers, amusement players, bathroom fife and drum devotees, soloists, trombone fireworks etc. zealots, enthusiasts, convicting lower court, defendant society said: “The fact that conduct, modern necessarily many afflicted at times with other kinds discomforting such as noises tractor-trailers and does not mean that all mowers bars are down lawn
11? or that there is to no from *6 place refuge be Frankenstein that modern man has created.”
This is an indictment of individual. not of an era, If modern man Franken- has created noise-making he has in- stein, also brought about sanitation creased he has human hygiene, into brought being not comforts, conveniences luxuries even have been dreamed of in horse-and- quiet buggy no doubt canal-transporting There is days. there is some noise in the unnecessary average community of but to reduce today, excessive babel and is not ax cacophony the club or by seizing of criminal prosecution. means provided Law has for the abatement of suppression nuisances and for the of devices inimical to health and dangerous to life limb.
The law properly frowns crim- upon the use inal for courts the application of civil remedies. branding any individual with the stigma of crime for a civil if there fault, is an act to be one, repro- bated and condemned. Whether it be for the collection of a debt or the practice discontinuance disturbing to the the latter complainer, may threaten the object of his dissatisfaction with a prison cell in order to collect money due him or allegedly to sup- redress a posed civil grievance.
The crime of disorderly conduct is not intended a catchall for act every which annoys or disturbs it people; is not to be used aas dragnet for all irritations which breed in the ferment of community. It has a specific it purpose; has a definitive objective, it is intended to preserve the public it peace; has thus a limited periphery beyond which the au- prosecuting thorities have no to right transgress any more than criminal alleged has the right operate to within clearly outlined circumference. analyzed and dis- its brief “The follows:
sected the requirements conduct as charged of one conviction A appear A. follows: to be as would made wilfully B. Who makes or causes Any C. or dis- boisterous and loud, peaceable resi- turbance D. To public highway, nearby, E. etc. dents near Whereby peace or the broken or disturbed traveling public annoyed.”
It “has estab- then said that the Commonwealth beyond It lished doubt.” these elements apparent reasonable “Whereby is not Item E: established *7 public peace broken.” public peace by any activity not broken which properly integral part a forms an of the movement produces though community, civilized even it noise annoys and A residents. railroad with locomotive, ringing thundering shrieking, and over bells whistles crossing in central section shakes a very ground town, violently passes,
over it causes people buildings to in immediate vibrate clap keep vicinity ears hands over and nose to out noises and acrid smoke. This mechanical monster peaceable certainly annoys nearby, residents it but public peace, peace not break the because is shat- belligerency only by acts of disorder. tered nothing did C. Greene which was forbidden Charles community. ownership of the or the mores His improper go-kart no race track was more than of the ownership operation, of a roller coaster when in which, rattling, pounding produces shrills, and other shrieks, disturbing issuing piercing than no less those noises, go-kart track. The race cer- from gayety argue that the tainly not merriment, represented by though tremendous ema- sounds, even nating peace. breaks the coaster, a roller Nor from rationally argue barrel could it music of the that the nostalgic tug organ merry-go-round at on a its with peace. breaking childhood memories constitutes regards apparently The Commonwealth peace already synonymous. indicated, breach of As says this is not the case. The Commonwealth prose- brief that under the conduct statute opera- legally against “airport brought cution could blasting activating operations, quarrying, tions, airplanes testing fire alarms and sirens, operation This and the missiles, of tractor-trailers.” exaggera- only regarded palpable assertion can as a which almost tion, reduces the Commonwealth’s case levity. attempt Any by prosecuting authorities charge person the State to conduct a operation engaged testing who is missiles, intimately very security associated with the ringing sounding or someone a fire alarm or nation, hastening conflagration siren while to a general inevitably threatens destruction would meet stern from rebuke the courts. The Commonwealth further contends in mak- that, ing out the crime of neces- sary disorderly. that the defendant be This is a con- terminology. tradiction in If a indicted for *8 proved robbery must be to have robbed before can he charged certainly be convicted of that crime, one disorderly conduct must disorderly have acted in a quite manner. It should be clear that a convict disorderly of defendant the crime of conduct he must have made disturbance of a some kind. Or he must made a have such loud, boisterous
whereby public peace has been broken. a For defendant to of be disorderly the crime of con- he must of his duct, own have, volition, committed a disorder or because that, of what he did, disorder in of the wake followed his Disorderly conduct. con- com- duct given must of defy order given munity.
There in this case in the record nothing in C. Greene suggests that Charles degree remotest even in not carried on He is a manner. reads information charged with disorderliness. The held” be that he races to “wilfully permitted go-kart on concept. his is a premises. This negative of act: positive law conduct demands a make or cause to made or disturbance which a noise been could peace. breaks the The information have charge the first because it not quashed instance of lower a under action crime the statute. alone. ground court have that been reversed on treated the case on merits We have, however, of an of for the opinion guidance have length written categori- It the future. is thus prosecution officers legal of operation a business cally stated under the cannot Pennsylvania as classified not as to whether pass question
We do here might in Greene complaining Township residents court in a of equity obtain redress through It can- procedure abating established nuisance. too Court emphatically, not be this however, stated a business stigmatization condemns ruination the concomitant legal criminal, the criminal under section code business, to the circumstances application has no involved. sentence and the reversed defendant Judgment discharged. by Opinion
Concurring Mr. Cohen: Justice by majority, I the result reached concur with imprecise stand- vague troubled I am but under in the Conduct Act Disorderly forth ards set
121 250.1 convicted. Under section appellant was Penal Code the Tentative Draft No. 13 of the Model offense of Conduct is defined as follows: Disorderly Conduct. A is
“(1) person Disorderly incon- cause public conduct to if, purpose knowledge or or annoyance venience, alarm, he to likely public inconvenience, cause or or he: (a) engages fighting, threatening, alarm, unreason- behavior; violent or tumultuous makes (b) or or gesture, able noise coarse utterance, [indecent?] or addresses display, language any abusive physi- or a hazardous or present; otherwise creates (e) act which serves no any offensive condition cally supplied). actor.” legitimate purpose (Emphasis In unreasonable what constitutes determining acts it to ascertain the act necessary whether In actor. legitimate purpose involved serve appellant the instant was case, engaged his conduct normal course of his livelihood and earning purpose causing in with the engaged typical disorderly inconvenience. Since the vague Pennsylvania statute, statute is as as the make intended to Model Penal Code was systemize definitions. unsatisfactory statutory these specific more en- necessarily And conduct statutes since freedom of action of an upon individual, croach the basis of criminal be care- liability important and articulated. See comment to out sec- thought fully Penal Draft Code, Model Tentative No. tion 250.1 helpful if would legislature It would (1961). provisions discussions cognizance take Law Institute’s Model Penal The American Code amendments Criminal subsequent Pennsylvania Code.