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decided: October 9, 1986.


Appeal from the Order of the Court of Common Pleas of Erie County, Criminal Division, at Nos. 437, 452, 455 and 494 of 1984, entered August 29, 1984.


Keith Welks, Chief Deputy Atty. Gen., Harrisburg, for Com.

John Wolford, Erie, for Parker-White Metal Co.

Dennis G. Kuftic, Edinboro, for Albert Fuchs.

Frank L. Kroto, Michael S. Jan Janin, Erie, for Liberty Iron & Metal Co.

Joseph J. D'Alba, Philip B. Friedman, Erie, for Penn Iron & Metal Co.

Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Flaherty and McDermott, JJ., join this opinion. Hutchinson, J., joins this opinion except for that portion of the opinion discussing an intermediate equal protection standard of review, and he also files a concurring opinion. Zappala, J., concurs in the result. Papadakos, J., files a dissenting opinion, joined by Nix, C.j.

Author: Larsen

[ 512 Pa. Page 78]


In this appeal, appellees have challenged the constitutionality of certain enforcement/penalty provisions of the Solid Waste Management Act (the Act), Act of July 7, 1980, P.L.380, No. 97 §§ 101-1003, 35 P.S. §§ 6018.101 -- 6018.1003 (Purdon's Supp. 1986). Specifically, appellees challenge sections 606(a) and 606(b) of the Act, which provide:

(a) Any person, other than a municipal official exercising his official duties, or any municipality who violates any provision of this act, the rules and regulations of the department, or any order of the department, or any term or condition of any permit upon conviction in a summary proceeding, shall be sentenced to pay a fine of not less than $100 and not more than $1,000 and costs and, in default of the payment of such fines and costs, to undergo imprisonment for not more than 30 days.

(b) Any person other than a municipal official exercising his official duties who violates any provision of this act, any rule or regulation of the department, any order of the department, or any term or condition of any permit, shall be guilty of a misdemeanor of the third degree and, upon conviction, shall be sentenced to pay a fine of not less than $1,000 but not more than $25,000 per day for each violation or to imprisonment for a period of not more than one year, or both.

[ 512 Pa. Page 79]

Appellees assert that, because these two provisions "proscribe identical conduct yet provide for vastly different penalties" without guidelines for the prosecutors and agencies charged with enforcing the Act as to when to seek either a summary offense conviction or a misdemeanor of the third degree conviction, the Act creates arbitrary classifications, and "vests unfettered discretion in the prosecutor," and violates, therefore, the state and federal constitutional guarantees of equal protection and due process of law and proscriptions against delegation of legislative power to the executive branch of government. We reject these challenges and uphold the constitutionality of the Act.

Following an investigation by the January 25, 1982 multi-county investigating grand-jury convened upon the application of the Attorney General of the Commonwealth, appellees were all charged in Erie County with misdemeanors of the third degree under section 606(b), 35 P.S. § 6018.606(b), for violations of the Solid Waste Management Act.*fn1

Appellee Albert E. Fuchs was charged with 9 counts of dumping or permitting the dumping of hazardous wastes on the Albert Fuchs Foundry Sand site in Erie County during the period of September, 1980 through April, 1981 without a permit and contrary to the rules and regulations of the Department of Environmental Resources (DER) in violation of section 401(a), 35 P.S. § 6018.401(a), management of hazardous waste.*fn2 Originally charged with felonies for

[ 512 Pa. Page 80]

    these violations under section 606(f),*fn3 appellee Fuchs' charges were reduced to misdemeanors of the third degree under section 606(b) following a preliminary hearing before a District Justice.

The remaining appellees, Parker White Metal Co., Penn Iron & Metal Co., Inc. and Limco, doing business as Liberty Iron and Metal Co., were charged with misdemeanors of the third degree under section 606(b) for illegally transporting solid wastes to a facility (the Fuchs site) that had not obtained a permit from DER, and for dumping solid "residual" and/or "hazardous" wastes without a permit from DER for such dumping, in violation of sections 610(6) and (1) of the Act, 35 P.S. § 6018.610(6) and (1).*fn4

Omnibus pre-trial motions were filed on behalf of all appellees which, inter alia, challenged the constitutionality of the Act. The Court of Common Pleas of Erie County granted all the appellees' pre-trial motions to dismiss the charges, finding that the challenged provisions of the Act violated Article I, section 26 and Article II, section 1 of the Pennsylvania Constitution. That court reasoned:

[ 512 Pa. Page 81]

Since "any violation" under Sections 606(a) and 606(b) is both a summary offense and a misdemeanor of the third degree, the prosecutor is not limited in choosing whether to seek different degrees of punishment for the same acts committed under identical circumstances by similarly situated defendants, and, therefore, the penalty provisions permit discrimination between individuals without a reason legitimately and reasonably related to individual situations. (citation omitted).

This type of discrimination violates Article 1, § 26 of the Pennsylvania Constitution which forbids discrimination against any person and does not limit impermissible discrimination to that usually characterized as invidious and based on, for example, race or religion. (citation omitted).

Sections 606(a) and 606(b) also violate Article 2, Section 1 of the Pennsylvania Constitution in that the choice of a summary offense or of a misdemeanor and the penalties to be imposed are left to prosecutorial choice, which is unlimited. The Constitution provides that the legislature shall enact laws and define what constitutes a crime and shall also set the penalty for any violation of that crime. In instant case this is left to the prosecutor and violates the Constitution, since the legislature cannot delegate its authority to define a crime and/or to set the penalty for the crime.

Opinion of the Court of Common Pleas of Erie County granting appellees' motion to dismiss charges, August 29, 1984 at 4-5. The Attorney General, for the Commonwealth, has appealed from that court's determination and order.*fn5

[ 512 Pa. Page 82]

    violations," and so create arbitrary and unreasonable classifications between similarly situated persons without rational basis. Brief for Appellees at 9-10. This argument is based upon the guarantee of equal protection of the laws of the 14th Amendment to the United States Constitution*fn6 and upon Article I, section 26 of the Pennsylvania Constitution.*fn7

This Court is, of course, at liberty to "interpret our Constitution in a more generous manner than the federal courts" have interpreted the Constitution of the United States, and we have done so in the past. Fischer v. Department of Public Welfare (DPW), 509 Pa. 293, 305, 502 A.2d 114 (1985) and cases cited therein. In the equal protection area, however, we have chosen to be guided by the standards and analysis employed by the United States Supreme Court and have adopted those standards and analysis in interpreting and applying Article I, section 26 of our Constitution.*fn8 Fischer v. DPW, supra, 509 Pa. at 310, 502 A.2d at 123-124; James v. Southeastern Pennsylvania Transportation Authority (SEPTA), 505 Pa. 137, 144-45, 477 A.2d 1302, 1305 (1984); Astemborski v. Susmarski, 502 Pa. 409, 412, 466 A.2d 1018 (1983).

[ 512 Pa. Page 84]

The equal protection analytical framework was described by this Court in James v. SEPTA, supra, wherein we stated:

[T]here are three different types of classifications calling for three different standards of judicial review. The first type -- classifications implicating neither suspect classes nor fundamental rights -- will be sustained if it meets a "rational basis" test . . . . In the second type of cases, where a suspect classification has been made or a fundamental right has been burdened, another standard of review is applied: that of strict scrutiny . . . . Finally, in the third type of cases, if "important," though not fundamental rights are affected by the classification, or if "sensitive" classifications have been made, the United States Supreme Court has employed what may be called an intermediate standard of review, or a heightened standard of review . . . . There are, in summary, three standards of review applicable to an equal protection case, and the applicability of one rather than another will depend upon the type of right which is affected by the classification.

505 Pa. at 145, 477 A.2d at 1306 (citations omitted) (Larsen, J. dissenting as to application of this standard); Fischer v. DPW, supra, 509 Pa. at 306-307, 502 A.2d at 121.

However, before we analyze a statute to determine whether it violates equal protection principles, we must first ask a threshold question.

As appellees correctly note, the "starting point of equal protection analysis is a determination of whether the State has created a classification for the unequal distribution of benefits or imposition of burdens." Brief for Appellees at 9 (emphasis added). The short and sufficient answer to appellees' equal protection challenge is that sections 606(a) and 606(b) of the Act do not create any classifications. These provisions, on their face, apply equally and across the board to any and all potential violators of the substantive provisions of the Act. Section 606 sets forth a wide range of criminal penalties for violators of the Act,

[ 512 Pa. Page 85]

    ranging from summary offenses (with fines of $100-$1000 and imprisonment of not more than thirty days) to felonies of the first degree (with fines of $10,000-$50,000 per day per violation and imprisonment of two to twenty years). Sections 606(a) and 606(b) provide that a person or municipality who "violates any provision of this act, the rules and regulations of the department [DER], or any order of the department, or any term or condition of any permit" may, upon conviction, be found guilty of either a summary offense or a misdemeanor of the third degree, but, on their face, these provisions create no classifications. The provisions lie dormant unless and until a prosecutor or agency activates one or the other. Thus the Act does not, on its face, carve out classifications or single out any distinct class of persons for unequal treatment, but by its terms applies equally to all.

Any equal protection problem with arbitrary classifications can therefore arise only upon enforcement of the Act when the prosecutor or agency chooses to prosecute a violator under one or the other section. But that is a different issue than whether the Act creates classifications that may deny equal protection of the laws -- that is an issue of "selective enforcement" by the prosecutor/agency. The United States Supreme Court addressed this precise issue in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), and unanimously held that an act which contained two separate penalty provisions proscribing identical conduct does not violate equal protection principles.

Presented in Batchelder were two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act). Although not identical in every respect, both provisions prohibited convicted felons from receiving firearms, and each authorized different maximum penalties. The United States Supreme Court was asked to decide whether the statutes (1) offended due process and equal protection interests by affording excessive prosecutorial discretion, (2) were void for vagueness, or (3) constituted an

[ 512 Pa. Page 86]

    impermissible delegation of congressional authority. That Court found no constitutional infirmities:

Contrary to the Court of Appeals' assertions, a prosecutor's discretion to choose between [the two pertinent provisions of the Omnibus Act] is not "unfettered." Selectivity in the enforcement of criminal laws is, of course, subject to constitutional restraints.*fn9 And a decision to proceed under [one provision rather than another] does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than [one provision] would permit and precludes him from imposing the greater fine authorized by [that provision]. More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. (Citations omitted.) Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced.

Id. at 124-25, 99 S.Ct. at 2204-05.

We quite agree with the United States Supreme Court that there is no equal protection infirmity in an act merely because it allows the prosecutor or enforcing agency

[ 512 Pa. Page 87]

    to choose between two different penalty provisions for similar unlawful conduct and that the mere possibility that a prosecutor might selectively enforce the provisions of an act for improper motives does not invalidate that act. In Commonwealth v. Wade, 485 Pa. 453, 402 A.2d 1360 (1979), Justice O'Brien addressed an argument that the Juvenile Act denied equal protection because

     the statute allows for significant prosecutorial discretion in determining whether to charge a youthful offender with either murder or unlawful killing, thus allowing a prosecutor to invoke the jurisdiction of either criminal or juvenile court.

As the United States Supreme Court stated, however in Queenside Hills Co. v. Saxl, 328 U.S. 80, 84-5, 66 S.Ct. 850, 852, 90 L.Ed. 1096 (1946): ". . . The . . . lack of equal protection is found in the actual existence of an invidious discrimination, not in the mere possibility that there will be like or similar cases which will be treated more leniently." (Citations omitted.) (Emphasis added.) Instantly, appellant is able to point to no actual discrimination, and as such, his equal protection claim based on possibilities must fail. See also Commonwealth v. Lewis, 443 Pa. 305, 279 A.2d 26 (1971).

Id., 485 Pa. at 464, 402 A.2d at 1365.*fn10

So too in the instant case, appellees have not contended that the Office of the Attorney General has practiced actual discrimination against them, nor have they pointed to any similarly situated others who were singled out for more lenient treatment.

Were we to accept appellees' argument that the Act does operate to create distinct classifications of defendants faced with disparate treatment (summary offense versus misdemeanor of the third degree) for similar conduct, we would still decline to find the Act violative of equal protection guarantees. Such "classification" would not affect

[ 512 Pa. Page 88]

    with particularity a "suspect" or a "sensitive" class, nor does it implicate "fundamental" or "important" interests.*fn11 Accordingly, we would evaluate the "classification" under the traditional "rational basis" test. Commonwealth v. Hicks, 502 Pa. 344, 347, 466 A.2d 613, 614-15 (1983); Commonwealth v. Wade, 485 Pa. 453, 462-64, 402 A.2d 1360 (1979). Thus we analyze the "classification created" by sections 606(a) and 606(b) "to determine whether it is reasonable, not arbitrary, and rests upon a difference having a fair and substantial relation to the object of the legislation." Snider v. Thornburgh, 496 Pa. 159, 168, 436 A.2d 593 (1981); Fischer v. DPW, supra at 509 Pa. 310-311, 502 A.2d 123; Commonwealth v. Wade, supra, 485 Pa. 462, 402 A.2d 1360.

To determine the object of the legislation in the instant case, we need look no further than section 102 of the Act which sets forth the findings of the General Assembly and its declaration of policy. 35 P.S. § 6018.102. That section provides, in relevant portion:

The Legislature hereby determines, declares and finds that, since improper and inadequate solid waste practices create public health hazards, environmental pollution, and economic loss, and cause irreparable harm to the public ...

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