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JAMES HARMON v. COMMONWEALTH PENNSYLVANIA (08/19/88)

decided: August 19, 1988.

JAMES HARMON, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Commonwealth of Pennsylvania v. James E. Harmon, No. 2879/1986.

COUNSEL

James J. DeMarco, for appellant.

Janice V. Quimby, Special Deputy Attorney General, for appellee.

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

Author: Narick

[ 119 Pa. Commw. Page 2]

Following a jury trial in Bucks County, James Harmon (Appellant) was convicted of criminal conspiracy and three violations of Pennsylvania's Solid Waste Management Act (Act).*fn1 He was sentenced to three

[ 119 Pa. Commw. Page 3]

    terms*fn2 of six to twelve months each, to run consecutively, and to $3,000 in fines plus costs of prosecution. Appellant appealed to Superior Court, which, upon the Commonwealth's motion, transferred the matter to this Court.

Appellant ran a waste disposal company, United Hospital Services. He had contracted with Montefiore Hospital in the Bronx, New York to remove the infectious waste from Montefiore and its affiliate, Albert Einstein Hospital. The contract provided for disposal of the waste by incineration at Rowlands Environmental Services, Inc. in New Jersey. The waste to be removed and incinerated was so-called "red bag" waste. Hospital personnel were trained to segregate certain types of infectious waste, such as used IV tubing, syringes, blood and serum vials, etc., by placing it in red plastic bags. These bags were kept separately from the remainder of the hospital waste, and were to be disposed of by incineration at high temperatures designed to kill any pathological organisms.

Appellant had held the contract with Montefiore since October, 1983. He began experiencing difficulties finding incineration sources due to cost and a competitor's efforts to drive him out of business. Rowlands had apparently proved to be too expensive early on and he used a variety of incinerators before the summer of 1985. During that same period, he was attempting to get a permit from the Pennsylvania Department of Environmental Resources (DER) for an incinerator he had purchased and completely overhauled. (The permit was ultimately denied because Appellant had lost his lease for the incinerator site.) During the summer of 1985, Appellant was nearing bankruptcy and could no longer

[ 119 Pa. Commw. Page 4]

    afford the charges at the few incinerators still open to him. He continued to collect the hospital waste, using Raymond Coakely, Sr. and his son, truckers who worked out of the same warehouse as United Hospital Services, to transport the waste from New York to the warehouse site in Norristown. (The Coakelys were named as unindicted co-conspirators by the Commonwealth and testified on its behalf.)

Coakely, Sr. testified that he put Appellant in contact with Mark Decker,*fn3 who had a 180-acre piece of property in Nockamixon Township, Bucks County, site of an old landfill, where Appellant could dispose of the hospital waste.

Coakely's son testified that he delivered several trailer loads of the hospital waste to the Nockamixon site, both from the warehouse in Norristown and directly from the New York hospitals. He left some trailers full of red bag waste at the site, while others were unloaded onto the ground by Appellant and his workers and set afire using kerosene.

On September 25, 1985, there was a fire on Decker's property to which the local police and fire departments responded at approximately 8:00 p.m. No one was on the property at the time. David Bonham, a fireman, testified that the fire was about 20 feet square, and appeared to be burning rubbish in plastic bags. One of the unburned items the firemen discovered was a closed plastic pail which contained used syringes. While fighting the fire, Mr. Bonham's boot was pierced by a needle which entered his foot. He was taken to the hospital for a hepatitis shot. Several days later, upon inspecting the fire equipment, he and the other firemen found two to three dozen needles imbedded in the truck tires, hoses and the firemen's boots.

[ 119 Pa. Commw. Page 5]

Several weeks later, on October 18 and 19, 1985, Decker's Nockamixon property was the subject of a search. Seven or eight trailers containing red bag waste were discovered. In addition, the old landfill site was excavated, and evidence of hospital waste, such as syringes, IV tubing, test tubes and pieces of red plastic bags, was discovered. Appellant was subsequently arrested and charged with conspiracy and several violations of the Act.

On appeal, Appellant raises eight issues for our resolution. For organizational purposes, we shall address these issues chronologically.

Appellant argues that jurisdiction over this appeal lies in Superior Court, presumably because of the conspiracy conviction. Our jurisdiction over criminal violations of the Act arises from Section 762(a)(2)(ii) of the Judicial Code, 42 Pa. C.S. ยง 762(a)(2)(ii), which provides, in relevant part:

[T]he Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common ...


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