
    Douglass Township v. Badman, Appellant.
    
      September 16, 1965:
    Argued June 21,1965.
    Before Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ.
    
      John R. Henry, for appellant.
    
      Harold H. Prince, with him Prince & Prince, for appellee.
    
      O. Thomas Miller, for amicus curiae.
   Opinion by

Jacobs, J.,

In December, 1963, the supervisors of Douglass Township, a second class township of Montgomery County, enacted an ordinance which required all mobile homes, as defined in the ordinance, thereafter brought into the township to locate within a mobile home park and prohibited the removal of the wheels from such mobile homes in the park. After the enactment of the ordinance the appellant moved a mobile home onto his own land in the township, removed the wheels, placed it on a permanent foundation and used the home as the family residence. Appellant was convicted in a summary proceeding before a justice of the peace on the charge of parking a mobile home on his property and removing the wheels therefrom and was fined under the ordinance’s penalty provisions. An appeal was allowed to the Court of Common Pleas of Montgomery County which dismissed the appeal witbv out hearing testimony and sustained the conviction. '

A procedural matter deserves attention before we discuss the merits of the case. Upon an appeal from, a summary conviction it is the duty of the court of common pleas or quarter sessions to find the appellant guilty or not guilty and, if guilty, impose sentence. Commonwealth v. Miller, 173 Pa. Superior Ct. 168, 96 A. 2d 153 (1953). Thus the lower court should, have entered a judgment of sentence instead of merely sustaining the conviction before the justice of the peace, which is not a court of record. In light of our disposition of the case we will not reverse on this procedural point.

We now have jurisdiction to hear this appeal by virtue of the Act of August 14, 1963, P. L. 819, §1, 17 P.S. 184.1, extending our jurisdiction to appeals from orders of the common pleas and quarter sessions courts “which involve summary proceedings before aldermen, magistrates, or justices of the peace.”

Appellant urges that Ms conviction cannot stand because tbe ordinance is unconstitutional. We need not decide tbe constitutionality of tbe ordinance in tbis case because we are of the opinion that appellant’s home at tbe time be was arrested was no longer a “mobile home” as defined in tbe ordinance. For tbis reason tbe conviction must be reversed.

Mobile home is defined in tbe ordinance as “any portable structure or vehicle, titled or registered as á vehicle, so constructed and designed as to permit occupancy thereof for dwelling or sleeping purposes.” (emphasis added) Since both appellant and appellee agree that appellant’s home rests on a permanent foundation with tbe wheels detached, we fail to see bow this home can qualify as a “portable structure or vehicle”. “Portable” is defined in Webster’s New Third International Dictionary as “capable of being carried; easily or conveniently transported . . .” Tbe township has not proved that tbis home in its present state is a mobile, rather than a fixed, dwelling, and we will not attempt to stretch tbe definition of “mobile home” to cover tbe factual situation presented by tbis meager record.

Order reversed and appellant discharged.

Watkins, J., dissents. 
      
       Prior to that act we did not have such jurisdiction. See Bell Appeal, 396 Pa. 592, 152 A. 2d 731 (1959), and Commonwealth v. Hanzlik, 191 Pa. Superior Ct. 460, 157 A. 2d 97 (1960).
     