Opinion
September 29, 1952.
December 12, 1952.
Appeals — Summary conviction before justice of peace — Judgment dismissing or sustaining appeal — Sufficiency.
On appeal from judgment of a justice of the peace, following a summary conviction, a judgment merely dismissing the appeal or sustaining the appeal is not sufficient and will be reversed.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 29, March T., 1952, from decree of Court of Quarter Sessions of York County, Aug. T., 1951, No. 32, in case of Commonwealth of Pennsylvania v. Allen J. Brenneman. Order reversed.
Appeal from conviction before justice of the peace upon an information charging defendant with disorderly conduct. Before SHERWOOD, P.J.
Order entered dismissing appeal. Defendant appealed.
Frank B. Boyle and Markowitz, Liverant Boyle, for appellant.
Clarence M. Lawyer, Jr., District Attorney and George W. Atkins, First Assistant District Attorney, for appellee.
Submitted September 29, 1952.
The defendant was found guilty by the local magistrate on a charge of disorderly conduct. He took an appeal to the court of quarter sessions. That court entered an order as follows: "There was vile, loud and boisterous language used upon the public highway in the Borough of Wrightsville; that it was of such a type and character that it could disturb the peace of the neighborhood. . . Therefore, the appeal is dismissed." In Commonwealth v. Peacock, 118 Pa. Super. 168, 172, 179 A. 907, this Court said: "A judgment affirming the justice of the peace, dismissing the appeal, or sustaining the appeal is not sufficient, but will be reversed: [citing cases]." Therefore, since the final order merely dismissed the appeal, the judgment must be reversed.
Under § 406 of the Act of June 24, 1939, P. L. 872, 18 Pa.C.S.A. § 4406.
However, we agree with the court below that the elements of the offense were made out. The Act reads: "Whoever wilfully makes . . . any loud, boisterous and unseemly noise or disturbance to the annoyance of the peaceable residents near by, or near to any public highway, road, street, lane, alley, park, square, or common, whereby the public peace is broken or disturbed or the traveling public annoyed, is guilty of the offense of disorderly conduct. . ." There was vile, loud and boisterous language used on the public highway in the borough of Wrightsville and this is not denied; that this disturbed or broke the public peace or annoyed the traveling public is beyond any question. The officers who made the arrest were members of the traveling public. We therefore concur in the finding that the public peace was broken or disturbed or the traveling public annoyed. We think there is no merit on that branch of the appellant's contentions.
The order of the court below is reversed with a procedendo.