Appeal from the Order of the Secretary of Agriculture in the case of Commonwealth of Pennsylvania, Department of Agriculture v. Wayne Rehm, Owner, Commonwealth Pest Control, Case No. 1988-02.
Mark T. Silliker, for appellant.
Stephen R. Pelcher, for respondent.
Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
[ 124 Pa. Commw. Page 532]
Before this Court is an appeal by Wayne Rehm, the owner of Commonwealth Pest Control (Petitioner) from an order of the Secretary of Agriculture (Secretary) imposing a fine of $500.00 for a violation of Section 8(e) of the Pennsylvania Pesticide Control Act of 1973, 3 P.S. § 111.28(e) (Act).*fn1
Petitioner was hired by Francis Mazzola (Mazzola) for the purpose of performing preconstruction termite treatment to the property where Mazzola intended to build his home. On approximately April 15, 1987, Petitioner performed the termite service using a termite pesticide chemical known as Gold Crest C-100. At that time, only the foundation walls to the home were constructed. The foundation consisted of four cinder block walls that were capped at the top closing the holes.
As found by the Secretary, the proper application of the chemical required at least two steps: "The first was to treat the ground around the foundation walls. The second was to pour the chemical into the top of the cinder block which permitted the chemical to flow down to the ground and complete the soil treatment."*fn2 In order for Petitioner to apply the chemical, it was necessary to break the seal at the top of the cinder blocks where the blocks had
[ 124 Pa. Commw. Page 533]
been capped by the contractor. Petitioner arranged for the construction foreman to open the capped blocks by punching holes in the caps. Neither Petitioner nor the construction contractor ever closed these holes after the chemical was poured into the cinder blocks.
A formal complaint was made to the Department of Agriculture (Department) resulting in a penalty being assessed against Petitioner for a violation of Section 8(e) of the Act. Petitioner then requested a formal hearing before the Department. A hearing was held before the Department's Hearing Examiner who found that Petitioner had failed to reseal the holes in the concrete blocks in violation of the labeling directions for post -construction use of Gold Crest C-100. The Hearing Examiner recommended that a $500.00 penalty be assessed against Petitioner. That recommendation was adopted by the Secretary. This appeal ensued.
Section 8(e) of the Act provides:
No person shall use, or cause to be used, any pesticide inconsistent with its labeling or to the regulations of the secretary if such differ from, or further restrict, the ...