PRESIDENT JUDGE DOYLE
Marvin Eugene Ebaugh appeals from an order of the Court of Common Pleas of York County, finding him guilty of seven violations of the Conewago Township nuisance ordinance for failure to control barking dogs.
Conewago Township enacted a nuisance ordinance in 1984 that provides, in pertinent part:
Section 1. Definitions and Interpretation: The following words as used in this Ordinance, shall have the meanings hereby respectively ascribed thereto:
A. Nuisance: any use of property or conduct, or activity or condition of property . . . that shall cause or result in annoyance or discomfort beyond the boundaries of such property which disturbs a reasonable person of normal sensitivities. . . . the word `nuisance' shall included . . . the following:
. . . .
(iii) Owning, possessing, controlling, or harboring any animal or fowl which barks, bays, cries, squawks, or makes other such noise continuously and/or intermittently for an extended period which annoys or disturbs a reasonable person of normal sensitivities. . . . .
(Ordinance 175, adopted December 17, 1984, Supplemental Reproduced Record (SRR) at 6b.) The ordinance provides for fines of not less than $10 nor more than $300, and, where a violator defaults in the payment of a fine or costs, imprisonment for not more than thirty days. (Section 4 of Ordinance 175.)
At all times relevant to the charges against Ebaugh, he owned a large number of dogs of various breeds, which he maintained at his residence in Conewago Township. Ebaugh himself testified that he has had upwards of 13 dogs during the period in question. All of the dogs are kept outside and to the rear of Ebaugh's home.
Joseph Marchione owns the property adjacent to Ebaugh's, and was disturbed by the barking of Ebaugh's dogs. Marchione complained to Ebaugh about the barking dogs; however, the problem was not corrected and Marchione began to alert the police. As a result of Marchione's complaints, the police issued seven "non traffic citations" to Ebaugh for violation of the nuisance ordinance, based on barking that occurred on the following dates and times: (1) June 22, 1999 (11:30 to 11:45 p.m.); (2) June 24, 1999 (4:30 a.m.); (3) November 6, 1999 (7:30 a.m.); (4) November 7, 1999 (11:45 p.m.); (5) December 12, 1999 (4:29 a.m.); (6) December 29, 1999 (11:30 p.m.); and (7) January 5, 2000 (11:30 p.m.). The trial court explained events surrounding the above complaints as followed:
In each case, Mr. Marchione has described similar circumstances, that the barking noises continued rather uninterrupted for a period approximating ten minutes. After expiration of that time period, he in each instance called 911 and requested a police officer to be dispatched. He says that a period of approximating twenty to thirty minutes would typically pass until the police arrived, and in that period of time, the dogs would continue to bark intermittently, which he has described as twenty to thirty seconds, and then abate for a number of minutes and then start again, and then upon the Police arrival, they would either witness or not some barking, go to the Defendant's house, and the barking would generally cease. He . . . typically heard more than one dog barking, upwards of two or three on any given occasion.
(Common Pleas Court order, May 24, 2000, at 3-4.)
Ebaugh challenged the seven citations before a District Justice, and he was found guilty of every violation. He appealed the convictions to the Common Pleas Court, which consolidated the matters for hearing. The Common Pleas Court found Ebaugh guilty of all seven violations of the nuisance ordinance and imposed a fine for each violation ranging from $10 to $150. The Court reasoned:
Defendant's actions `annoyed a person of reasonable sensibilities' and . . . his actions constituted a public nuisance, despite the fact that only one complaining neighbor testified. During the hearing . . ., Joseph Marchione testified to being kept awake or awakened on the various dates of the offenses which ranged from June of 1999 through January of 2000. Further the hours of the violations ranged from 11:00 p.m. to early morning and mid a.m. hours. On each occasion the complaining neighbor, Mr. Marchione, advised and alerted the authorities who in most, if not all, instances verified the circumstances and offensive condition.
(Common Pleas Court opinion, September 7, 2000, at 4; SRR at 4b.) The Common Pleas Court also rejected Ebaugh's challenge to the constitutionality of the nuisance ordinance on the ground of vagueness. The court concluded that the issue was waived due to Ebaugh's failure to raise it before the District Justice, and further concluded that Ebaugh's argument was meritless in any event. This appeal followed.
On appeal, Ebaugh contends that the Common Pleas Court erred in (1) concluding that he waived his right to challenge the constitutionality of the nuisance ordinance, (2) concluding that the ordinance was constitutional, and (3) finding him guilty of creating a public nuisance in violation of the ordinance.
With regard to Ebaugh's waiver issue, this Court held in Commonwealth v. Waltz, 749 A.2d 1058 (Pa.Cmwlth. 2000), petition for allowance of appeal denied, ___ Pa. ___, 764 A.2d 1072 (2000), that a constitutional issue was not waived in summary criminal appeals for failure to raise it before a district justice. We stated:
[T]he Court notes that appeals to courts of common pleas from convictions in summary proceedings are governed by Pa. R.Crim. P. 86, which provides in subpart (G)[1] that appeals from the summary proceedings shall be heard de novo by the court of common pleas. It has been held under the predecessor to Rule 86(G) that an issue not raised before a district justice was not waived and that even the failure to challenge a citation before a district justice did not preclude the court of common pleas from considering the issue in the de novo trial. Commonwealth v. Patterson, 27 Pa. D. C.3d 349 (1983). See also Commonwealth v. Toner,
444 Pa. Super. 30,
663 A.2d 202 (1995), which holds that on appeal to the court of common pleas from a summary conviction pursuant to Rule 86(G), the court must conduct de novo review, even if the conviction resulted from a guilty plea. Therefore, the Court concludes that Waltz did not waive his constitutional challenge.
Id. at 1060.
Furthermore, this is not a zoning violation appeal governed by Section 616.1 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10617., where failure to appeal a violation notice to a zoning hearing board waives all issues, renders the violation notice unassailable, and prevents a district justice from reaching the merits of violation in an enforcement action. Our decision in Township of Penn v. Seymour, 708 A.2d 861 (Pa.Cmwlth. 1998), petition for allowance of appeal denied, 555 Pa. 749, 725 A.2d 1224 (1998), relied on by the Common Pleas Court, is, therefore, inapplicable here.
The subject matter of Pa. R. Crim. P. 86 (G) is now found at Pa. R. Crim. P. 462.
Further, unlike zoning violation cases where the zoning hearing board resolves challenges to citations, the original record here contains copies of a document called "Summons for a Summary Case Non-Traffic," which provides that, if Ebaugh wished to challenge the nuisance ordinance citations, his remedy was to plead not guilty before a district justice.
Hence, following Waltz, we must conclude that Ebaugh did not waive his constitutional issue by failing to raise it before the district justice.
However, even though the issue was not waived, it is nonetheless without merit. Ebaugh asserts that the nuisance ordinance is unconstitutionally vague because it refers to the offensive conduct as disturbing a person of "reasonable sensitivities," and thus does, not contain a standard for defining the prohibited conduct.
We begin our analysis by stating the basic legal principle that Ordinances are presumed to be constitutional, and a heavy burden is placed on the one seeking to challenge the constitutionality of an ordinance. Commonwealth v. Fisher, 350 A.2d 428 (Pa.Cmwlth. 1976), cert. denied, 429 U.S. 1026 (1976). An ordinance is unconstitutionally vague only when it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited by the law. Widmyer v. Commonwealth, 458 A.2d 1048 (Pa.Cmwlth. 1983).
In this case, we believe that the phrase "annoy or disturb a reasonable person of normal sensitivities" in the Township's ordinance is an objective standard that looks to the impact of noise upon a reasonable person under the particular circumstances of the incident. In our view, a person of ordinary intelligence would understand what conduct violates this provision and, accordingly, the ordinance is constitutional. See City of Philadelphia v. Cohen, 479 A.2d 32 (Pa. Cmwlth 1984) (ordinance that defined noise as causing adverse psychological or physiological effects in persons was not unconstitutionally vague). See also Commonwealth v. Solon, 13 Pa. D. C. 3d 85 (1979) (ordinance that penalizes an owner of an animal that makes a noise that disturbs a reasonable person of normal sensitivities is not unconstitutionally vague); and Commonwealth v. Cromartie, 65 Pa. D. C. 2d 541 (1973) (disturbing the peace ordinance proscribing "any noise or disturbance . . . whereby the public peace and tranquility is disturbed" implies that a noise must be sufficient to disturb a reasonable person and, for that reason, is not unconstitutionally vague).
Last, Ebaugh asserts that this case merely involves a private nuisance, not a public nuisance, and that his neighbor's remedy was to file an injunction petition to abate the nuisance. We disagree. A public nuisance is an unreasonable interference with a right common to the general public; circumstances that constitute a public nuisance are, among other things, conduct that is proscribed by statute or ordinance, or conduct that interferes with public peace. Muehlieb v. City of Philadelphia, 574 A.2d 1208 (Pa.Cmwlth. 1990). Here, owning, possessing or controlling a noisy animal is classified as a nuisance by the Township's ordinance, and excessive barking obviously interferes with the public peace. Therefore, the conduct here involves a public nuisance, and Ebaugh was properly sanctioned by the Common Pleas Court.
The judgment of the Common Pleas Court is affirmed.
ORDER
NOW, August 28, 2001, the order of the Court of Common Pleas of York County in the above-captioned matter is hereby affirmed.