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HENRY KISSINGER v. COMMONWEALTH PENNSYLVANIA (03/01/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 1, 1985.

HENRY KISSINGER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Commonwealth of Pennsylvania v. Henry Kissinger, No. 2420 C.D. 1982.

COUNSEL

John J. Robinson, Jr., with him, W. Scott Staruch, Laws and Staruch, for appellant.

Mary D. France, Cleckner and Fearen, with her, Robert A. Enders, for appellee.

Judges Rogers and Craig and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge Williams, Jr. did not participate in the decision in this case.

Author: Barbieri

[ 88 Pa. Commw. Page 47]

Appellant, Henry A. Kissinger, appeals here an order of the Court of Common Pleas of Dauphin County denying his motion of February 23, 1983 to dismiss the pending criminal action against him based on the double jeopardy clauses of the federal*fn1 and state*fn2 constitutions, and Section 109 of the Crimes Code.*fn3

On October 18, 1980, the Supervisors of Upper Paxton Township (Township) issued a notice to Appellant ordering him to connect his improved properties in the Township to the sewer system operated by the Millersburg Area Authority (Authority). After Appellant failed to make the required connection within 60 days, he was convicted on June 10, 1981, of the summary offense of violating Chapter 18, Pt. I, § 1 of Upper Paxton Township Ordinance 9-76 (September 9, 1976) (Ordinance), which reads:

[ 88 Pa. Commw. Page 48]

The owner of any improved property which is located in this Township and is accessible to and whose principal building is within one hundred fifty (150) feet of the sewer system, shall connect such improved property therewith in such a manner as this Township and the Authority may require, within sixty (60) days after notice to such owner from this Township to make such connection. . . .

Pursuant to Chapter 18, Pt. 1, § 5 of the Ordinance, Appellant was fined $300.00 plus costs.*fn4 On June 9, 1982, Appellant was again served with notice to connect the same properties to the same sewer system and he again failed to obey the notice. Over Appellant's plea of double jeopardy, a District Justice entered a conviction against Appellant for violating Chapter 18, Pt. I, § 1 of the Ordinance and fined Appellant $300.00 plus costs.

Appellant took an appeal in the Court of Common Pleas of Dauphin County pursuant to Pa. R. Crim. P. 67 and thereafter moved to dismiss the charges on the grounds of double jeopardy, as set forth in his omnibus pretrial motion. The court of common pleas denied Appellant's motion to dismiss, based on Appellant's failure to allege that imprisonment was possible for violation of the Ordinance.

[ 88 Pa. Commw. Page 49]

Appellant contends: (1) he was not required to allege that he faced the possibility of imprisonment for violating the Ordinance, and (2) the second prosecution for failing to connect to the Authority's sewers was barred by the double jeopardy clauses of the federal and state constitutions, and Section 109 of the Crimes Code.

We agree with Appellant that he was not required to allege that he could be imprisoned for violating the Ordinance. Pa. R. Crim. P. 306*fn5 provides:

(b) The Omnibus pretrial motion shall . . . state specifically the grounds upon which each type of relief requested therein is based, setting forth for each type of relief requested the facts in consecutively numbered paragraphs, and shall specify each such type of relief requested.

Pa. R. Crim. P. 306(b). Appellant clearly fulfilled the requirements of Rule 306 by stating in his motion: (1) the specific grounds for the relief requested -- the double jeopardy clauses of the federal and state constitutions, and Section 109 of the Crimes Code; (2) the type of relief requested -- dismissal of the charges against him; and (3) the facts upon which the request was based -- the two convictions for violating the Chapter 18, Pt. 1, § 1 of the Ordinance. Rule 306 thus did not require that Appellant make any allegation of law regarding the possibility of imprisonment. In fact,

[ 88 Pa. Commw. Page 50]

    under Chapter 18, Pt. 1, § 5 of the Ordinance, imprisonment is indeed possible for violation of the Ordinance and this is a matter of public record, well within the knowledge of the court. In any event, Section 109 of the Crimes Code bars a second prosecution based upon the same facts and statutory provision as an earlier conviction, regardless of whether imprisonment is possible.*fn6 Clearly, then, the court of common pleas erred by denying Appellant's motion based on Appellant's failure to allege possible imprisonment.

With respect to the merits of Appellant's motion, we initially note that Section 109 of the Crimes Code is inapplicable to the present case, since the two prosecutions of Appellant were based on different sets of facts occurring on two separate occasions more than a year apart.*fn7

Appellant first violated the Ordinance by failing to make the required connection within 60 days of October 18, 1980, when he received notice from the Authority to connect his property to the sewer system. Appellant violated the Ordinance for the second time by failing to make the required connection within 60 days of the Township's June 9, 1982 notice to him. Since the two notices and the two refusals to abide by these notices occurred more than a year apart, the two prosecutions were based upon different sets of facts and

[ 88 Pa. Commw. Page 51]

Section 109 does not bar Appellant's second prosecution.*fn8

Further, because there were two distinct violations of the Ordinance, Appellant's second conviction does not violate the double jeopardy clause of either the United States Constitution or the Pennsylvania Constitution. In this respect, the present case is analogous to In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975). In Martorano, the Pennsylvania Supreme Court held that where a witness on two separate occasions refused to testify before two successive grand juries investigating similar matters, two successive adjudications of contempt for refusing to answer similar questions did not place the witness in double jeopardy. The Court stated:

Even if the Double Jeopardy Clause applied in civil contempt adjudications, it is clear that it would not have been violated in this case. A witness could, consistent with the Double Jeopardy Clause, be subjected to a second criminal

[ 88 Pa. Commw. Page 52]

    contempt adjudication in the circumstances of this case, for each separate and distinct refusal to testify, each occurring on a separate and discontinuous occasion, is a separate offense for double jeopardy purposes. (Citations omitted.)

Id. at 84-85, 346 A.2d at 31. As in Martorano, in which the defendant twice refused to testify on similar matters, in the present case Appellant refused on separate occasions to abide by notices to connect his improved properties with the Authority's sewer system. Thus, since Appellant's two failures to act were distinct and occurred more than a year apart, the second prosecution did not subject Appellant to double jeopardy under either the United States Constitution or the Pennsylvania Constitution.*fn9

[ 88 Pa. Commw. Page 53]

Accordingly, we will affirm the order of the court of common pleas denying Appellant's motion to dismiss.

Order

Now, March 1, 1985, it is ordered that the decision of the Common Pleas Court of Dauphin County, entered February 23, 1983, denying Appellant's motion to dismiss, is affirmed.

Judge Williams, Jr. did not participate in the decision in this case.

Disposition

Affirmed.


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