89 Pa. Commw. 316 | Pa. Commw. Ct. | 1985
Opinion by
Providence Builders, Inc. (appellant) appeals here an order of the Court of Common Pleas of Montgomery County denying its motions for new trial and in arrest of judgment.
The trial court found that the appellant erected a cement hopper on its property located in Lower Providence Township without first obtaining a building permit; that it applied for a permit after the structure was complete; that the zoning officer denied the application; and that there was no appeal from that denial. The zoning officer subsequently issued a citation averring that the appellant had erected a building without a permit in violation of Lower Providence Township Ordinance No. 5, Section 208, Subsection 1002. The district justice found the appellant guilty and sentenced it to pay a fine and costs. Following an appeal of this summary conviction pursuant to Pa. R. Crim. P. 67(e), the trial court adjudged the appellant guilty at a de novo proceeding. The present appeal ensued after the trial court dismissed appellant’s post-trial motions.
We note preliminarily that “[a]n appeal from a judgment of a [district justice] is not an action de novo. The basis of the trial in the common pleas [court] must be the identical cause of action brought before the [district] justice. While the trial is de novo, the cause of action must remain the same.” Bauman v. Bittner, 152 Pa. Superior Ct. 628, 33 A.2d 273 (1943). Additionally, Pa. R. Crim. P. 67(e), Appeals from Summary Judgments, provides that the issuing authority, here the district justice, “shall, within twenty (20) days after receipt by him of the notice of appeal file with the said officer [of the court of common pleas]: 2. the original complaint or citation.” Clearly, the citation, which .serves to notify the defendant of the charges lodged against him, is part of the procedural record before the trial court in an appeal from a summary judgment and, consequently, the Township need not have introduced it into evidence.
Moreover, we have failed to locate any statutory or ease law in support of the apppellant’s contention
As for the appellant’s contentions regarding the power of the trial court to take judicial notice of a municipal ordinance, we note that Section 6107 of the Judicial Code, 42 Pa. C. S. §6107 provides that “[t]he ordinances of municipal corporations of this Commonwealth shall be judicially noticed” and that the court “may inform itself of such ordinances in such manner as it may deem proper and . . . May call upon counsel to aid it in obtaining such information.” (Emphasis added.) We are not convinced, therefore, that the Township needed to offer a certified copy of the ordinance into evidence, although, as the appellant correctly maintains, the trial court could not have taken judicial notice of the municipal ordinance unless it was requested to do so. Wilson v. Pennsylvania Railroad Company, 421 Pa. 419, 219 A.2d 666 (1966) and Platt v. City of Philadelphia, 183 Pa. Superior Ct. 486, 133 A.2d 860 (1957). The record in this case, however, does reveal that the pertinent municipal ordinance was brought to the attention of the trial court and appellant’s counsel when counsel for the Township had the ordinance marked as an exhibit and authenticated by the zoning officer. Thus the trial court correctly took judicial notice here.
In the alternative, the appellant challenges the adequacy of the citation issued, alleging that it did not constitute adequate notification of the charges being brought. The appellant, however, failed to raise this contention in its post-trial motions and, therefore, the argument has been waived. Pa. R. Crim. P. 1123 and
Accordingly, we will affirm the order of the court of common pleas.
Order
And Now, this 16th day of May, 1985, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is hereby affirmed.
We have jurisdiction over this matter pursuant to Section 762(a) (4) of the Judicial Code, 42 Pa. C. S. §762(a) (4).