decided: July 13, 1982.
WILLIAM C. WILSON, SR. AND VIOLA M. WILSON, APPELLANTS
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
Appeal from the Order of the Court of Common Pleas of York County in case of Commonwealth of Pennsylvania v. William and Viola M. Wilson, No. 106 S.C.A. 1979.
Daniel W. Shoemaker, with him Barbara Orsburn Stump, Shoemaker, Thompson & Ness, for appellants.
Joel O. Sechrist, Eveler, Puckett & Trout, for appellee.
President Judge Crumlish and Judges Rogers and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case. Concurring Opinion by Judge Doyle.
[ 67 Pa. Commw. Page 381]
William and Viola Wilson appeal a summary conviction for the violation of a Codorus Township Sewage Ordinance. We reverse.
Section 10 of the ordinance makes it a summary offense to violate any section. They were found to have violated Section 3, which provides:
No person shall install, construct, or request bid proposals for construction or alteration of any individual sewage system or construct or request bid proposals for construction, or install or occupy any building or construction for which an individual sewage system or community sewage system is to be installed without first obtaining a permit. . . .
[ 67 Pa. Commw. Page 382]
In September of 1976, the Township's sewage officer visited the Wilsons' property,*fn1 which had no sewage system at that time. In September 1977, upon a return visit, he observed that a system had been installed.*fn2 No permit had been obtained.
The ordinance was enacted in April 1977. At no time in the proceedings below did the Commonwealth present any evidence as to when the system was installed. Having failed to prove that the system was installed subsequent to the enactment of the ordinance, we find reversible error on this record.*fn3 A contrary result would make this conviction ex post facto in violation of Art. I, § 17 of our Pennsylvania Constitution and Art. I, § 9 of the U.S. Constitution.
"It is clear that the legislature is free to criminalize previously non-criminal conduct." Commonwealth v. Pickett, 244 Pa. Superior Ct. 433, 436, 368 A.2d 799, 802 (1976). However, "a judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law. . . ." Bouie v. Columbia, 378 U.S. 347, 353 (1964).
The decision of the York County Common Pleas Court, No. 106 S.C.A. 1979 dated March 5, 1980, is reversed.
[ 67 Pa. Commw. Page 383]
Judge Mencer did not participate in the decision in this case.
Concurring Opinion by Judge Doyle:
I concur in the result reached by the Court, but feel I must disagree with the reasoning which bases the decision on the constitutional safeguard against the ex post facto application of the Ordinance. Section 3 of the Ordinance in question was clearly intended for prospective application only and would apply only to persons who "occupy any building or construction for which an individual sewage system . . . is to be installed. . . ." (emphasis added). The mere occupancy of a structure without the necessary action of installation, would not be violative of the Ordinance.
Since the Wilsons neither owned nor occupied the premises when the sewage system was installed, the conviction cannot stand.