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COMMONWEALTH PENNSYLVANIA v. BLOSENSKI DISPOSAL SERVICE (05/28/86)

decided: May 28, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT
v.
BLOSENSKI DISPOSAL SERVICE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Blosenski Disposal Service, No. 56-83 and 65-83.

COUNSEL

Kenneth A. Gelburd, Assistant Counsel, for appellant.

James A. Cunningham, for appellee.

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

Author: Barbieri

[ 97 Pa. Commw. Page 490]

This is a case brought under Section 606 of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, 35 P.S. § 6018.606, wherein the Pennsylvania Department of Environmental Resources (DER) appeals here an order of the Court of Common Pleas of Chester County. That order granted the motion of the defendant, Blosenski Disposal Service (BDS), to quash the citations issued to him for violations of the Solid Waste Management Act. We reverse the common pleas court and reinstate the citations.

The following facts are pertinent. BDS is a trash-hauling business which utilizes a trash transfer station on Chestnut Tree Road, West Nantmeal Township, Chester County. On November 3, 1982, a DER inspector*fn1 was present at the Chestnut Tree Road transfer station when he observed a BDS trash truck pull into the compactor. After the DER inspector pulled into the station, he observed the BDS name written on the side of the vehicle. After a confrontation with Joseph Blosenski, Jr., the principal of BDS, the DER inspector left the station and wrote up his report at a later date. Subsequently, citations were filed with the applicable district justice against BDS for violating Section 201(a) of the Solid Waste Management Act, 35 P.S. § 6018.201(a), by processing solid waste without a DER permit, and for violating 25 Pa. Code § 75.21(a), allowing its land to be used for the operation of a solid waste processing facility without a DER permit. The district justice convicted BDS of both violations.

[ 97 Pa. Commw. Page 491]

BDS then appealed the convictions to Chester County Common Pleas Court pursuant to Pa.R.Crim.P. 67 for a trial de novo. A trial was held on March 20, 1984 before Judge Leonard Sugerman which resulted in a mistrial. A second trial was held on October 30, 1984 before Judge Charles B. Smith who granted BDS' motion to quash the citations based upon the failure of DER's inspector to issue the citations to BDS at the time of the violation in compliance with Subsection (A)(3)(a) of Pa.R.Crim.P. 51.*fn2 DER has appealed that order to this Court.

In this appeal, DER contends that (1) BDS' pre-trial motions were untimely and should not have been considered; (2) that BDS failed to prove noncompliance with Pa.R.Crim.P. 51; and (3) that DER's inspector was excused from issuing the citations on the spot under Pa.R.Crim.P. 51 as it was not feasible to do so at the time. We shall deal first with DER's contention that the common pleas court improperly dismissed the citations under Pa.R.Crim.P. 51.

Rule 51 requires that summary criminal prosecutions be initiated by citation. Subsection (A)(3)(a) of Rule 51 requires that the issuing police officer issue the citation to the defendant at the time of the violation where the police officer is in uniform or displaying a badge or other sign of authority. In Department of Environmental Resources v. Quaker State Oil Refining Co., 70 Pa. Commonwealth Ct. 107, 452 A.2d 614

[ 97 Pa. Commw. Page 492]

(1982), we held that DER field inspectors enforcing the provisions of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001, were not "police officers" for purposes of Rule 51 and, therefore, were not empowered to institute summary criminal prosecutions by issuing citations. In so ruling, however, the Court pointed out that its decision was required by the lack of statutory authority in the Clean Streams Law to institute prosecutions, a power conferred upon DER for violations of the Air Pollution Control Act.*fn3 Pursuant to the guidance thus provided, we have examined the relevant portions of the Solid Waste Management Act, specifically Section 104(11), 35 P.S. § 6018.104(11), and are convinced that DER's inspectors are acting ...


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