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decided: November 22, 1985.


Appeal from the Order of the Court of Common Pleas of Erie County in case of Commonwealth of Pennsylvania v. Felix Steve Milewski, Nos. 795 and 839 of 1982.


John M. Wolford, with him, Russell S. Warner, MacDonald, Illig, Jones & Britton, for appellant.

Michael J. Veshecco, District Attorney, with him, Timothy J. Lucas, Assistant District Attorney, for appellee.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge MacPhail.

Author: Barbieri

[ 93 Pa. Commw. Page 122]

Felix Steve Milewski, Appellant, appeals here from a judgment of sentence of the Court of Common Pleas of Erie County. That judgment of sentence was imposed following his conviction for violating the minimum size gill net regulations promulgated by the Pennsylvania Fish Commission (Commission) under authority of Section 2903(e) of the Fish and Boat Code, 30 Pa. C.S. § 2903(e). We affirm.

The record establishes the following facts which are pertinent. Appellant is a commercial fisherman who works the waters of Lake Erie. On November 5, 1981, two Deputy Waterway Patrolmen boarded Appellant's boat to check his fish catch and nets. The patrolmen proceeded to check the mesh size of Appellant's gill nets to ensure their compliance with the Commission's regulations. A "gill net" is a flat net which is suspended vertically in the water with meshes that allow the head of a fish to pass but entangle its gill covers as it seeks to withdraw. Webster's Third International Dictionary 957 (1976). By regulation, 58 Pa. Code § 63.3(a), the Commission established a minimum mesh size of two and one-half inches for gill nets. According to the patrolmen's measurements, the mesh size of Appellant's nets was less than the minimum two and one-half inches. As a result of that measurement, Appellant was cited for being in violation of 58 Pa. Code § 63.3(a) and his catch and nets were seized by the Commission. On November 8, 1981, patrolmen boarded Appellant's boat but were unable to measure his nets as Appellant had picked the nets and already reset them. The patrolmen confiscated the catch on the assumption that they were caught with undersized nets. The following day,

[ 93 Pa. Commw. Page 123]

November 9, 1982, patrolmen again boarded Appellant's boat to measure the reset nets. This time, the patrolmen determined that twenty of the nets measured were undersized and were confiscated. The confiscated nets were again remeasured by the patrolmen in late February or early March of 1982 at which time they confirmed that the nets were indeed undersized. Criminal complaints were issued which charged that Appellant had used undersized nets on November 5, 8, and 9, 1981. Appellant was convicted of all three charges following a three-day jury trial. After the verdict was rendered, Appellant changed counsel and post-trial motions were filed by his new counsel. Those post-trial motions were denied and Appellant was sentenced to one year of probation and ordered to pay a fine of $3,000. It is from that sentence that he appeals.

In this appeal, Appellant raises three major assignments of error, which are (1) whether there was sufficient evidence that his nets were undersized so as to sustain the convictions; (2) whether he was erroneously tried, convicted and sentenced under the wrong statutory section for a third-degree misdemeanor rather than a summary offense; and (3) whether the statutory and regulatory framework under which he was prosecuted is unconstitutional for vagueness. We shall address these issues seriatim.

The initial prong of Appellant's challenge to the sufficiency of the evidence is that the Commonwealth failed to prove that the flexible rules used by the Commission patrolmen to measure the mesh size of his gill nets were approved by the United States National Bureau of Standards. It is Appellant's contention that proof of such approval is a necessary element of proving a violation of 58 Pa. Code § 63.3(a). We disagree.

[ 93 Pa. Commw. Page 124]

The Commission's regulation dealing with the minimum mesh size for gill nets, 58 Pa. Code § 63.3(a), as in effect at the time of Appellant's violations in November, 1981, reads in pertinent part as follows:

§ 63.3. Use of Gill Nets.

(a) Size. It is unlawful to set, fish or possess any gill net with a mesh size of between 3 1/16 of an inch and 4 1/2 inches as measured over a flexible rule. The minimum mesh size for gill nets is 2 1/2 inches. . . . All mesh or meshes in gill nets used in fishing shall be measured over a flexible rule ...

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