dissenting.
I respectfully dissent. The majority holds that, because the proceedings in this case are criminal in nature, Joyce L. Spon-tarelli, co-owner of the property at 133 Columbia Avenue in the City of Meadville, may be “individually criminally liable” for summary violations of a municipal ordinance governing the maintenance of property. (Majority op. at 1257.) For the reasons that follow, I do not agree that the proceedings in this case are criminal in nature. Thus, I would reverse and dismiss as improper the summary criminal proceedings against Spontarelli.
The majority concludes that the proceedings here are criminal in nature because section 106.2 of the City of Meadville Property Maintenance Code (Code) requires that violators of the Code be sentenced to imprisonment upon default in the payment of their fines. (Majority op. at 1257 - 58.) However, as shown below, requiring imprisonment for nonpayment of a fine is unconstitutional and illegal. Thus, the provision relied upon by the majority is null and void. See City of Allentown v. MSG Associates, Inc., 747 A.2d 1275 (Pa.Cmwlth.2000) (declaring an ordinance unconstitutional and, thus, null and void), appeal dismissed, 565 Pa. 174, 772 A.2d 413 (2001).
I. Section 106.2 of the Code
The exact wording of section 106.2 of the Code (emphasis added) is as follows:
Any person who shall violate a provision of this Code or who shall fail to comply with any of the requirements thereof, or who shall fail to comply with an order issued by the Code Official, shall, upon conviction in a summary proceeding, be sentenced to pay a fine of not more than $1000.00 plus costs, and in default of payment, shall be sentenced to imprisonment for not more than thirty days. Each day that a violation continues shall be deemed a separate violation.
The offending language in this provision is the word “shall.” Under this provision, upon default in the payment of a fine, a person “shall” be sentenced to imprisonment. By definition, the word “shall” is mandatory; in ordinary usage, the word “shall” means “must” and is inconsistent with a concept of discretion. See Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165 (2000).
However, the U.S. Supreme Court has held that it is unconstitutional to impose a fine and then, upon nonpayment of the fine, automatically impose a sentence of imprisonment. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). The Supreme Court explained that, under such provisions in the law, indigent defendants would always be sentenced to prison for nonpayment of the fine while persons with the ability to pay the fine would be *1261able to avoid a sentence of imprisonment.1 Id. The Supreme Court suggested that states amend their laws and procedures to avoid imprisoning an indigent defendant for involuntary nonpayment of a fíne. Id.
In Pennsylvania, our supreme court has adopted Rule 456 of the Pennsylvania Rules of Criminal Procedure to govern summary cases. The rule states:
(B) If a defendant defaults on the payment of fines or costs, or restitution, as ordered, the issuing authority shall notify the defendant in person or by first class mail that, unless within 10 days of the date on the default notice, the defendant pays the amount due as ordered, or appears before the issuing authority to show cause why the defendant should not be imprisoned for nonpayment as provided by law, a warrant for the defendant’s arrest may be issued.
(C) If the defendant appears pursuant to the 10 day notice in paragraph (B) or following an arrest for failing to respond to the 10 day notice in paragraph (B), the issuing authority shall conduct a hearing to determine whether the defendant is financially able to pay as ordered.
(1) Upon a determination that the defendant is financially able to pay as ordered, the issuing authority may impose any sanction provided by law.
(2) Upon a determination that the defendant is financially unable to pay as ordered, the issuing authority may order a schedule or reschedule for installment payments, or alter or amend the order as otherwise provided by law.
Pa. R.Crim. P. 456. In addition, the Pennsylvania legislature has enacted section 9730(b) of the Sentencing Code, 42 Pa.C.S. § 9780(b) (emphasis added), which provides:
(1) If a defendant defaults in the payment of a fine, court costs or restitution after imposition of sentence, the issuing authority ... may conduct a hearing to determine whether the defendant is financially able to pay.
(2) If the issuing authority ... determines that the defendant is financially able to pay the fine or costs, the issuing authority ... may turn the delinquent account over to a private collection agency or impose imprisonment for nonpayment, as provided by law.
(3) If the issuing authority ... determines that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the issuing authority ... may provide for payment in installments. In determining the appropriate installments, the issuing authority ... shall consider the defendant’s financial resources ... and the nature of the burden the payment will impose on the defendant. If the defendant is in default of a payment or advises the issuing authority ... that default is imminent, the issuing authority ... may schedule a rehearing on the payment schedule. At the rehearing the defendant has the burden of proving changes of financial condition such that the defendant is without the means to meet the payment schedule. The issuing authority ... may extend or accelerate the schedule, leave it unaltered or sentence the defendant to a period of community service as the issuing authority ... finds to be just and practicable under the circumstances.[2]
In other words, in Pennsylvania, a defendant “shall not” be sentenced automati*1262cally to imprisonment upon default in the payment of a fine. The issuing authority must provide the defendant with proper notice and a hearing on the defendant’s ability to pay the fine. If the issuing authority determines that a defendant is unable to pay the fine, the issuing authority may never sentence the defendant to imprisonment. Instead, the issuing authority must establish a suitable payment schedule, or, if that fails, sentence the defendant to community service. Thus, to the extent that section 106.2 of the Code requires that an issuing authority sentence a defendant to imprisonment upon default in the payment of a fine, it is null and void.
II. Type of Proceeding
Proceedings to adjudicate municipal ordinance violations are civil in nature. Commonwealth v. DeLoach, 714 A.2d 483 (Pa.Cmwlth.1998).
While the enforcement of municipal ordinances that provide for imprisonment upon conviction or failure to pay afine or penalty must follow the Rules of Criminal Procedure, the same is not true for municipal ordinances that do not provide for imprisonment upon conviction or failure to pay a fine or penalty, which, by definition, are not Penal Laws, and are therefore not included in the definition of “criminal proceedings.” Pa. R.Crim. P. [103]. The higher degree of protection provided by the Rules of Criminal Procedure does not apply to municipal ordinance enforcement actions where imprisonment is not a remedy for a conviction or failure to pay a fine.
Town of McCandless v. Bellisario, 551 Pa. 83, 87, 709 A.2d 379, 381 (1998) (emphasis in original). Where a municipal ordinance provides for issuance of a fine upon conviction and does not provide for imprisonment upon conviction or failure to pay a fine, the proper procedure for enforcement of the ordinance is for the municipality to file a civil complaint alleging a violation of the ordinance. Id.
Here, inasmuch as the provision of the Code requiring imprisonment upon default in the payment of a fine is null and void, there is no valid provision in the Code for imprisonment upon conviction or failure to pay a fine. Therefore, the proceedings in this case are civil in nature. Of course, this means that the City of Meadville’s initiation of summary criminal proceedings against Spontarelli by the issuance of citations was improper. Rather, the City of Meadville was required to file a civil complaint against Spontarelli alleging violations of the Code. Because the proceedings commenced by the City of Meadville in this case were improper, I would dismiss them.3
. The Supreme Court stated that this violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Tate.
2. The policy underlying section 9730(b) seems to be that collecting the fine is preferable to imposing a sentence of imprisonment for default in the payment of a fine. Indeed, the U.S. Supreme Court has noted that "imprisonment, rather than aiding collection of the revenue [the fine], saddles the State with the cost of feeding and housing [the defendant] for the period of his imprisonment." Tate, 401 U.S. at 399, 91 S.Ct. 668. Thus, where a *1262defendant is able to pay the fine, section 9730 permits the use of a private collection agency before imposition of a sentence of imprisonment. Where the defendant is unable to pay the fine, section 9730 provides for a payment schedule and, if that fails, a sentence of community service.
. Based on my disposition of this issue, it is not necessary to address the remaining issues raised by Spontarelli in her brief.