Appeal from Common Pleas Court, Erie County; Honorable Shad Connelly, Judge.
Jane M. Earll, Erie, for appellant.
Mark W. Richmond, Sol., Erie County Dept. of Health, Erie, for appellee.
Barry, McGinley and Smith, JJ. McGinley, Judge, dissenting.
[ 126 Pa. Commw. Page 348]
Appellant, John M. Lipchik, appeals from the judgment of sentence entered against Appellant by the Court of Common Pleas of Erie County on July 25, 1988. Proceedings were originally commenced against Appellant by the filing of a complaint in equity by the Erie County Department of Health (Department of Health) which obtained an injunction against Appellant from operating a solid-waste disposal facility. On June 13, 1988, the Department of Health filed a petition for rule and adjudication of civil contempt against Appellant alleging that he failed to comply with an order issued by Judge George Levin on September 28, 1987 which ordered Appellant to provide any additional information required by the appropriate governmental agencies within certain specified time periods regarding Appellant's closure plan. Appellant was also fined for his failure to submit a timely closure plan. The Department of Health charged that Appellant had failed to provide the Pennsylvania Department of Environmental Resources (DER) with additional
[ 126 Pa. Commw. Page 349]
requested information concerning Appellant's closure plans for his unpermitted solid-waste disposal facility.
Judge Levin ordered the Department of Health to file an amended petition requesting that both civil and criminal sanctions be imposed against Appellant. The Department of Health filed an amended petition on July 1, 1988, and trial was thereafter scheduled for July 25, 1988 before Judge Levin. Appellant filed a motion for continuance of the July 25, 1988 trial on grounds that circumstances beyond his control rendered him unable to submit timely modification plans to DER. Appellee's counsel did not object to the granting of a thirty-day continuance. On July 19, 1988, Judge Levin signed an order continuing the hearing date as well as an order recusing himself from the contempt proceedings. The order in question entered by Judge Levin states:
AND NOW, to-wit, this 19th day of July, 1988, Defendant's Motion for Continuance, is hereby granted in the above-captioned matter.
A trial shall be scheduled for the 19th day of August, 1988, beginning at __ __.m. in Courtroom No. __ at the Erie County Court of Common Pleas or at such date that would be convenient to the Court. (Underlined portion of the order is handwritten.)
Certified Record, Appendix H.
The next day counsel for Appellant and Appellee were notified that jury selection would begin on July 21 and that Appellant's trial was scheduled for July 25, 1988. Immediately prior to trial, Appellant presented a petition for stay of jury trial to Judge Connelly, the newly assigned judge, averring that the order signed by Judge Levin was a valid interlocutory order which should ...