No. 1026 Philadelphia 1982, Appeal from the Judgment of Sentence of March 26, 1982, in the Court of Common Pleas of Philadelphia County, Criminal, No. 747-783 April Term 1980. No. 1027 Philadelphia 1982, Appeal from the Judgment of Sentence of March 26, 1982, in the Court of Common Pleas of Philadelphia County, Criminal, No. 784-820 April Term 1980.
Herman Bloom, Philadelphia, for appellants.
David F. Michelman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Olszewski and Beck, JJ. Spaeth, President Judge, files a concurring opinion. Beck, J., joins Olszewski, J., except as to the equal protection analysis, and on that point she joins Spaeth, President Judge.
[ 339 Pa. Super. Page 363]
Appellants are a private, family-owned and run waste disposal company and its vice president (who owned 40% of its stock). At trial it was alleged that in 1972 Clarence Walker, a Streets Department bulldozer operator assigned to Philadelphia's Fort Mifflin Landfill, entered into an agreement with Marvin Lightman (father of Jerome Lightman), president and principal stockholder of Lightman Drum Company. Under the agreement, Walker would permit Lightman trucks to enter the landfill to dump toxic wastes, in return for a fixed amount of money per barrel. From 1972 until 1975, Lightman trucks regularly entered the landfill to dump drums, paying to Walker and his co-worker, Curtis Carson, at least $12,000 by checks signed and issued by Marvin or Jerome Lightman. The landfill was intended to be a disposal site for sterile fly-ash residue from the city incinerator, brought here by city vehicles or privately owned vehicles under contract with the City.
The findings of fact by Judge Gafni, below, show that the Pennsylvania Department of Environmental Resources and the City's Streets Department became aware of illegal dumping activity at the landfill in December 1975, when an unidentified truck was caught dumping at the site. However, the District Attorney's Office first became aware of the bribery and conspiracy charged in this case on February
[ 339 Pa. Super. Page 36428]
, 1979. On that date Carson confessed to a police detective that he had received money as bribes from Jerome Lightman and several other chemical waste disposal companies. An investigation into Lightman's complicity in the illegal dumping commenced at that time. The investigation was hampered by Jerome Lightman's non-residency status and by Lightman Drum's having no office in the Commonwealth from December, 1975 through March, 1980.
Jerome Lightman was arrested, and criminal complaints were filed against Lightman Drum and Jerome Lightman on March 28, 1980. After trial by jury, Jerome Lightman was convicted of 31 counts of bribery and also conspiracy. 18 Pa.C.S.A. § 4701; 18 Pa.C.S.A. § 903. Lightman Drum Company was convicted of 34 counts of bribery and also conspiracy. Jerome Lightman was sentenced to 1 1/2 to 4 years imprisonment plus a fine of $3,000.00 on each bill, with each sentence to run concurrently. Lightman Drum Company received a suspended sentence.
The costs for clean-up of the Fort Mifflin Landfill are anticipated to run into the millions of dollars. No evidence has been presented concerning the impact of the toxic wastes on the environment or public health. This appeal follows the denial of timely motions in arrest of judgment and for a new trial.
Appellants raise four issues for review. First, appellants argue that the lower court erred in not finding the prosecution of these cases barred by the statute of limitations. We agree with the lower court that prosecution of these cases was not barred.
Appellants argue that insofar as the last act of illegal dumping occurred in 1975, the statute of limitations on these charges ran out in 1977. The applicable statute of limitations, 18 Pa.C.S. § 108, provides under subsection (f)(1) that the limitations period, normally two years, is tolled "during any time when the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth
[ 339 Pa. Super. Page 365]
. . . ."*fn1 This standard was applied in Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980), in a case remarkably similar to the case at bar. Our Supreme Court held that the statute of limitations was tolled after a thorough search revealed that defendant had no legal residence or office within the Commonwealth. Although we stop short of creating a per se rule, in the instant case appellant's absence from the Commonwealth from 1975 to 1980 certainly foiled all efforts to ascertain his whereabouts. Appellant's fleeting contacts with the Commonwealth such as hospital visits, visits with unspecified relatives, or driving a company truck to unspecified locations in eastern Pennsylvania do not comport with notions of a "reasonably ascertainable" place of abode or work.
Appellants also argue that 18 Pa.C.S. § 108(f)(1) violates the requirements of the Equal Protection and Privileges and Immunities Clauses of the United States Constitution. As to the Equal Protection Clause, appellants assert that the statute discriminates between residents of the Commonwealth and non-residents by creating two classes of people: residents, for whom a definite period of limitation is always applicable; and residents who are ...