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COMMONWEALTH PENNSYLVANIA v. BLOSENSKI DISPOSAL SERVICE (10/09/87)

decided: October 9, 1987.

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 case of Commonwealth of Pennsylvania v. Blosenski Disposal Service, Nos. 54 and 55, 1983.

COUNSEL

Kenneth A. Gelburd, Special Deputy Attorney General, for appellant.

James A. Cunningham, for appellee.

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

Author: Barry

[ 110 Pa. Commw. Page 195]

The Commonwealth's Department of Environmental Resources (Department) appeals an order of the Court of Common Pleas of Chester County which arrested judgment against Blosenski Disposal Service, the appellee.

On August 17, 1982, Frank Holmes, in his capacity as a solid waste specialist of the Department and while on a public highway, noticed a truck bearing the appellee's name entering a concrete building also used by the appellee. Holmes knew that the building was a transfer station, a facility used to compact waste so that it might be loaded onto a large tractor-trailer for ultimate disposal. Holmes also knew that, while the appellee had applied for a permit to operate the transfer station as required by Section 201 of the Solid Waste Management Act (Act), Act of July 7, 1980, P.L. 380, 35 P.S. § 6018.201 (Supp. 1987), no permit had been granted by the Department. The truck appeared to be full with bags of trash piled onto the back.

When the truck backed into the concrete building in such a position that it could dump waste into the compactor, Holmes could no longer see what was actually being done. As a result, Holmes exited from his car, entered the private property on which the concrete building was located and ultimately entered the concrete building, all without obtaining a search warrant. Once inside the building, Holmes saw that the truck was empty and that a load of trash was in the compacting unit. The Department thereafter initiated a prosecution alleging a violation of the Act.

[ 110 Pa. Commw. Page 196]

The appellee was initially convicted by a district justice. The appellee thereafter filed a de novo appeal to the Court of Common Pleas of Chester County. On February 26, 1984, the date scheduled for trial, the appellee filed a motion to suppress the testimony of Holmes because he had entered private property occupied by the appellee without first obtaining a warrant. The Department objected to the filing of the motion to suppress, arguing that it was untimely. The court overruled the Department's objection, held a hearing on the matter and orally denied the motion to suppress, stating on the record that the waste disposal industry was so regulated that one engaged therein had no reasonable expectation of privacy to be protected by either the Fourth Amendment to the United States Constitution or Article 1, § 8 of the Pennsylvania Constitution.

A non-jury trial was subsequently held and the appellee was found guilty of violating Section 201 of the Act. The court denied appellee's post-verdict motions. Before judgment of sentence could be entered, the appellee filed an appeal to this Court. In an unreported order of November 20, 1985, we dismissed the appellee's appeal and remanded the matter to the trial court for the imposition of sentence. The appellee then requested reconsideration of the trial court's ruling on post-verdict motions in light of this Court's decision in Commonwealth v. Fiore, 88 Pa. Commonwealth Ct. 418, 491 A.2d 284 (1985). Upon reconsideration, the trial court reversed its original decision, holding that Fiore required suppression of the evidence in question. As a result, the court arrested judgment. This appeal by the Department followed.

The Department first argues that the original suppression motion filed on February 28, 1984 was untimely and should not have been considered. The Rules of ...


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