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decided: September 25, 1985.


No. 173 E.D. Appeal Docket 1984. Appeal from the Judgment entered August 3, 1984 by the Superior Court at Nos. 1723, 1724 and 1725 of 1982, vacating judgments of sentence for conspiracy and remanding for resentencing of the Ct. of Common Pleas, Luzerne County at Nos. 655, 655-A, 655-B, 656, 656-A, 657 & 657 & 657-A of 1980. Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., filed a dissenting opinion in which Nix, C.j., and Zappala, J., joined.

Author: Larsen

[ 508 Pa. Page 514]


The Commonwealth appeals from the decision of the Superior Court, 332 Pa. Super. 415, 481 A.2d 855 (1984), which reversed the judgments of sentence and vacated appellees' convictions of risking a catastrophe in violation of 18 Pa.C.S.A. § 3302(b).

Following a two-week jury trial in the Court of Common Pleas of Luzerne County, appellees, Elmo Scatena, Gerard Scatena and Louis Scatena*fn1 were convicted of violating the Pennsylvania Clean Stream Law, 35 P.S. § 691.301, § 691.307 and 25 Pa.Code § 97.72; of causing a public nuisance, 18 Pa.C.S.A. § 6504; and of risking a catastrophe. Elmo Scatena was also convicted of conspiracy, 18 Pa.C.S.A. § 903(a). The trial court arrested judgment on the convictions for causing a public nuisance. The appellees were sentenced on all other convictions.*fn2

[ 508 Pa. Page 515]

The Superior Court affirmed the judgments of sentence for violations of the Clean Stream Law and for conspiracy.*fn3 The judgments of sentence for risking a catastrophe were reversed, that court holding there was insufficient evidence to sustain these convictions. The sole issue before us is whether there was sufficient evidence to support the appellees' convictions of risking a catastrophe.*fn4 We hold the evidence was sufficient and reverse.

The testimony and evidence produced at trial established the following: Appellee Elmo Scatena owned and operated a garage and automotive service station known as Highway Auto Service in Pittston, Luzerne County, Pennsylvania. He was assisted in the operation of the business by his two sons, appellees Gerard Scatena and Louis Scatena. From August of 1978 to July of 1979, the appellees knowingly discharged hundreds of thousands of gallons of untreated industrial and chemical wastes into a borehole on the Highway Auto Service premises. The borehole led to an abandoned underground mine where the wastes accumulated. The appellees at first were paid $150.00 and then later $200.00 for each truckload of wastes dumped into the borehole.

Much of the wastes discharged into the borehole consisted of oily sludges and cutting solutions. A substantial portion of these materials were contaminated with metallic chips of iron, chrome, nickel and copper hydroxides. Other wastes deposited into the abandoned mine were more chemical in nature. Some contained sodium methacyrlate, sodium chlorine, sodium sulfate, hydroquinone and pyrogallic acids.*fn5 In addition, at least 66,000 gallons of waste cyanide were dumped into the borehole between August of 1978 and

[ 508 Pa. Page 516]

January of 1979. This avalanche of waste materials deposited into the borehole collected and amassed in the abandoned underground mine stretching below the populated Pittston area. On July 29, 1979, this accumulation of hazardous materials escaped from the mine and a massive volume of black, sludgy, odorous, toxic wastes commenced to discharge into the Susquehanna River. The Susquehanna River is a major waterway in the Luzerne County area serving the population in many significant ways. One of those ways is that it provides raw water intake for the water authority of Danville, Pennsylvania.

The waste discharging into the river was discovered at once by the authorities. On July 30, 1979, the Pennsylvania Department of Environmental Resources (D.E.R.) initiated massive containment measures to control the discharge. Nonetheless, by mid-day on July 31, 1979, the Susquehanna River was polluted with a bank to bank oil sheen for a distance of 35 miles down river from the point of discharge. Additionally, there were oily patches extending for another 25 to 30 miles downstream to Danville.

On August 8, 1979, the Commonwealth performed a rhodamine-wt dye test by pouring 2 to 2 - 1/2 gallons of the dye into the borehole on the Highway Auto premises. The dye was flushed with 1000 gallons of water. Less than 24 hours later the dye had made its way through the mine and into the river. Three days later, measurements revealed that 60.5% of the dye dumped into the appellees' borehole had issued from the mine.

Numerous soil samples taken from near the borehole, within the borehole and at the mine tunnel were analyzed by the D.E.R. All of the samples revealed the presence of the chemical dichlorobenzene.*fn6 In addition, samples taken five days after the discharge began revealed the presence of dichlorobenzene in the raw water intake and the finished water of the Danville Water Company. This same chemical

[ 508 Pa. Page 517]

    was also found in the kitchen sink tap water of a Danville restaurant.

By and large the prodigious containment efforts undertaken by the Commonwealth were successful in controlling the discharge. Nevertheless, measurable amounts of discharge continued for several months. There was also evidence presented concerning: (a) the potentially explosive gases that were escaping from the mine tunnel, and (b) the presence of the chemical cyanide which when coupled with the environment of an underground mine evolves into hydrogen cyanide which has the potential to be released as a deadly gas and disperse in all directions including up and out of holes in the ground.*fn7

The Commonwealth argues that the evidence presented at trial was sufficient to convince beyond a reasonable doubt that the appellees' actions in discharging untreated industrial and chemical wastes into the borehole and abandoned mine which eventually exited into the Susquehanna River risked a catastrophe in violation of 18 Pa.C.S.A. § 3302(b).

Section 3302(b) of the Crimes Code provides:

Risking a catastrophe. -- A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.

18 Pa.C.S.A. 3302(b). Subsection (a) enumerates "other dangerous means" as "flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage." 18 Pa.C.S.A. 3302(a).

In Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976) we had occasion to consider this statute and we said:

Section 3302 attempts to meet two separate and distinct societal harms. In paragraph (a) it purports to punish for the damage caused by the mishandling of certain enumerated

[ 508 Pa. Page 518]

    highly dangerous forces or substances. Paragraph (b) addresses the exposure to harm created by the misuse of these forces or substances.

In the instant case, the Commonwealth sought to establish that appellees exposed society to harm and risked a catastrophe by the dumping of huge quantities of dangerous wastes into the borehole on the Highway Auto Service property in violation of paragraph (b) of Section 3302. The Commonwealth offered proof that society was subjected to the risk of "widespread injury or damage" in three particular ways. First, by the creation of a danger of an underground mine explosion in an area honeycombed with mines; second, by the generation and potential release of poisonous cyanide gas from the abandoned mine; and third, by the discharge of hazardous chemicals and industrial wastes into the Susquehanna River. The Superior Court reviewed the evidence presented in this case and concluded that it was insufficient as to each of these threats.

Where the sufficiency of the evidence to support a guilty verdict is challenged on appeal:

[w]e must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. (Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980).

Commonwealth v. Coccioletti, 493 Pa. 103, 107, 425 A.2d 387, 389 (1981). See Commonwealth v. Tribble, 502 Pa. 619, 467 A.2d 1130 (1983).

Applying this standard to the entire record in the present case, we hold that the evidence was sufficient to support appellees' convictions of risking a catastrophe. The pollution of a major public water source resulting from the discharge of enormous quantities of hazardous industrial wastes and dangerous chemicals into that source, in this case the Susquehanna River, is enough to establish a violation

[ 508 Pa. Page 519]

    of Section 3302(b). The theory of the Commonwealth's case as well as the thrust of its proof was that the appellees risked a catastrophe as opposed to caused a catastrophe. The fact that swift and effective governmental intervention limited the deleterious effect of appellees' reckless conduct does not decriminalize their actions. The fact that an actual devastating catastrophe was averted is of no moment in assessing appellees' conduct in terms of Section 3302(b) -- exposing society to widespread damage.*fn8 The massive discharge of dangerous wastes into the Susquehanna River which, in spite of immediate detection and vast and expeditious containment measures, within two days, contaminated the water way for some 60 miles downstream is conduct that risks a catastrophe.

[T]he degree of culpability required by Section 3302(b) is . . .; a gross reviation from the standard of conduct that a reasonable person would observe in the actor's situation. The 'risk' proscribed by this legislation is the use of dangerous means by one who 'consciously disregards a substantial and unjustifiable risk' and thereby unnecessarily exposes society to an extraordinary disaster. (Emphasis in original)

Commonwealth v. Hughes, 468 Pa. at 513, 364 A.2d at 311.

The conduct of the appellees in this case of depositing immense quantities of dangerous untreated industrial and chemical wastes into the Susquehanna River exhibits a conscious disregard of the very substantial and unjustifiable risk involved to human health and to the environment.*fn9 These abusive actions constituted a gross deviation from

[ 508 Pa. Page 520]

    the standard of conduct that reasonable businessmen and property owners would observe in the same circumstances as the appellees. Society was caused to be unnecessarily exposed to the extraordinary disaster of having a major water source in a populated area turned into a polluted health hazard. We reject the appellees' argument that because the Commonwealth failed to present expert testimony relating to the precise degrees of toxicity of the various chemicals and wastes deposited into the river, the evidence falls short of proof of risking a catastrophe.

When a school bus driver intentionally navigates his bus full of school children through a red light at a high rate of speed and miraculously escapes collision and injuries, no expert testimony is needed to establish that the driver is guilty of risking a catastrophe. When a pyromaniac sets fire to an office building which is then occupied by thousands of workers and the fire is extinguished before any humans have been consumed by the flames, no expert testimony is needed to establish that the arsonist is guilty of risking a catastrophe.

Likewise, when polluters cause massive quantities of untreated and hazardous industrial and chemical wastes to be discharged into one of the Commonwealth's major rivers resulting in the river being covered solidly from bank to bank for thirty-five miles with an oil sheen and then for another thirty miles there were patches of oily substance on the water, and the discharge consisted of numerous substances harmful to human health and was only contained by the hurculean efforts of the D.E.R., no expert testimony as to the exact toxic levels of the wastes is needed to establish that the pollutors (appellees herein) are guilty of risking a catastrophe.*fn10

[ 508 Pa. Page 521]

The order of the Superior Court is reversed and the judgments of sentence are reinstated.

FLAHERTY, Justice, dissenting.

I dissent. It is axiomatic that a criminal conviction may not stand unless every element of the crime has been established beyond a reasonable doubt. One of the elements of the crime of risking a catastrophe, 18 Pa.C.S.A. § 3302 (b), is the showing, beyond a reasonable doubt, that a catastrophe, or "widespread injury or damage," Commonwealth v. Hughes, 468 Pa. 502, 512, 364 A.2d 306, 312 (1976) was risked. The Commonwealth did not show that the Scatena's acts, outrageous though they were, actually put the public in jeopardy of widespread injury or damage. Therefore, the conviction should not stand.

The fundamental error underlying the majority's view is the same as that underlying the prosecutor's view: viz., the erroneous belief that placement in public waters of large volumes of industrial contaminants constitutes, per se, the risk of catastrophe. This view is simply wrong. That it is so can be discerned from the Hughes case, supra, the only prior case in which this Court have substantively dealt with the statute in question, where "catastrophe" is discussed and defined. In Hughes this Court noted that criminal statutes should be interpreted according to the fair import of their terms, and when statutory language is ambiguous, they shall be interpreted so as to further the general purposes of the provision involved. The Hughes Court then turned to the Comment to the Model Penal Code to elucidate the purpose of our statute:

"This section introduces a new concept in Anglo-American penal law. It is patterned on European legislation dealing with activity creating a "common danger." Fire, dealt with by the law of arson, is the prototype of forces which the ordinary man knows must be used with special caution because of the potential

[ 508 Pa. Page 522]

    for wide devastation. Modern legislation puts explosion, flood, poison gas, and avalanche in the same category, and modern technological development alerts us to possibilities of catastrophe in mishandling radioactive material." (Footnote omitted).

It is thus apparent that the legislature recognizing the catastrophic effects that can result from the reckless use of the enumerated forces or substances determined to punish under Section 3302 (b), those who would expose the public to an unreasonable risk because of their reckless handling of these forces or substances.

468 Pa. at 511-512, 364 A.2d at 306. (Emphasis added). The Comment to the Model Penal Code specifically mentions fire, explosion, flood, poison gas, avalanche, and possibly the handling of radioactive material as activities which, common knowledge tells us, may cause widespread devastation. It is noteworthy that the pollution of waters with industrial chemicals is not included in this list.

More fundamentally, however, virtually no hazard may be included in the list absolutely, even those mentioned in the Comment. Tossing a lighted match on the polished marble floor of a modern skyscraper, for example, is certainly an irresponsible act, and possibly even a criminal act, but without more, it cannot be said to risk a catastrophe. If the match burns, goes out, and is surrounded by 100 square feet of nonflammable marble floor, with no other flammable materials nearby, whatever other state or local regulations and statutes may have been violated, it cannot be said that the actor risked a catastrophe. On the other hand, if the Commonwealth were able to introduce evidence in this hypothetical case that the carelessly tossed match might in fact have ignited some sort of flammable material present in the lobby of the skyscraper, and that a conflagration might have resulted, then a prima facie case of risking a catastrophe would have been made out.

This hypothetical example is illustrative of the error in the majority opinion. It is not the case that every carelessly tossed match risks catastrophe, that every careless act

[ 508 Pa. Page 523]

    while driving a school bus risks widespread damage or injury, or that every dumping of industrial waste into the waterways risks the harm contemplated by the statute. On the other hand, some acts, such as those which occurred in the Hughes case, are self-evidently catastrophic in nature when they occur. In Hughes an employee of a company which used flammable solvents in the manufacturing process, while carrying a five gallon container of the solvent, spilled a half gallon of the solvent on the floor and then, in violation of a company rule against smoking, lit a cigarette and threw a match on the floor. The spilled solvent ignited and an eight alarm fire resulted in which two lives were lost and extensive property damage occurred. This Court agreed that such conduct constituted risking a catastrophe and affirmed the conviction for risking a catastrophe:

While the section [3302(b)] does not enumerate those circumstances under which an unreasonable risk of injury or damage would exist, we do not believe such precision is required. Given the volatile nature of the substance here involved, the repeated warnings against the use of matches in the area and the obvious possible consequences of ignoring these precautions, it is clear that a person in the situation of the appellee should have been fully aware that his conduct was proscribed by the provisions of this section.

Id., 468 Pa. at 513-154, 364 A.2d at 311-312. The Hughes case, like all cases, is to be read within its context. Generally, the case may be said to stand for the proposition that when a person willfully behaves in a manner which an ordinary person would recognize as risking foreseeable widespread injury, this behavior amounts to risking a catastrophe. Lighting a match in an area containing large amounts of flammable solvent and throwing the match on the floor where solvent had been spilled would surely constitute risking a catastrophe.

But in the case at bar, unlike the Hughes case, the foreseeable harm is not so clear. It may be presumed that an ordinary person would recognize that pouring large

[ 508 Pa. Page 524]

    quantities of industrial waste down a borehole might possibly cause some harm, but the nature or extent of the harm would surely not be known. It might, or it might not, be a catastrophe that was risked. Even that uncertainty, however, would not prevent a conviction for risking a catastrophe in the Scatena case if, after the act were committed and harm did result, the Commonwealth showed by competent evidence that the harm which resulted, if it had not been mitigated by the very commendable efforts of the DER and others, would have resulted in a catastrophe.

Unfortunately, the Commonwealth established no such evidence. Incredible as it seems, there was not even any evidence of record which established that a single fish or waterfowl was killed or injured as a consequence of the acts of the Scatenas, and we simply do not know what would have happened if the DER had not intervened. It is possible that the Danville water system would have filtered out virtually all of the harmful materials. But even if the system would have failed and Danville would have been without water for a period of time, there was no evidence as to whether that would have been a catastrophe. The majority notes that the compound dichlorobenzene was found in the Danville water supply even after the containment efforts were in effect, but there was no evidence to establish that the concentrations in which it was present were harmful or that the bioaccumulative properties of dichlorobenzene were likely to lead to the statutorily required widespread injury.

It may well be that if the DER had not intervened, the Danville water system would have failed and absolute disaster would have occurred. It is also conceivable that a large number of persons ingested the water containing small amounts of dichlorobenzene, and that these persons could have been irreversibly harmed. If these hypothetical facts had been established at trial by competent evidence, certainly a conviction for risking catastrophe would be justified. But in the case before us, no such evidence has been offered and it should be apparent that the majority's attempt

[ 508 Pa. Page 525]

    to establish a per se rule that anyone who dumps industrial waste into the waterways of the Commonwealth has risked a catastrophe simply will not withstand analysis. If a person is to be convicted of the crime of risking a catastrophe, the Commonwealth, at a minimum, must be able to show that the act which the actor committed was capable of causing widespread injury. That was not shown in this case.*fn*

[ 508 Pa. Page 526]

It is understandable that anyone who reads the facts of this case would be outraged by the criminal, thoughtless, and irresponsible acts of the Scatenas. It would be understatement to say that persons who act as the Scatenas did

[ 508 Pa. Page 527]


*fn* This case was reassigned to this author on May 28, 1985.

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