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Borough of Walnutport v. Dennis

Commonwealth Court of Pennsylvania

March 30, 2015

Borough of Walnutport
v.
Timothy Dennis, Appellant

Argued March 9, 2015.

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Appealed from No. SA-0172-2013. Common Pleas Court of the County of Northampton. Judge Giordano, J.

Joseph P. Maher, Allentown, for appellant.

Michael F. Corriere, Bethlehem, for appellee.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge.

OPINION

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ROBERT SIMPSON, JUDGE.

In this, his latest appeal to this Court, Timothy Dennis (Dennis)[1] asks whether the Court of Common Pleas of Northampton County[2] (trial court) erred by adjudicating him guilty of the summary offense of violating Section 16 of the Walnutport Borough Municipal Solid Waste Ordinance, Ordinance No. 2011-05 (Ordinance),[3] for failing to pay a flat fee for solid waste removal services (garbage removal), and ordering him to pay restitution in the amount of $121 plus fines. Dennis contends the trial court erred or abused its discretion by: not ruling on his double jeopardy claim until after the trial concluded; denying his double jeopardy claim; determining the citation was sufficiently specific; determining the Borough presented sufficient evidence to prove the requisite elements of the offense; and, refusing to invalidate the Ordinance as unconstitutional or contrary to the law. Discerning no error, we affirm.

I. Background

Dennis is the owner of residential property located at 645 Lehigh Gap Street (property), in the Borough of Walnutport (Borough), Northampton County, Pennsylvania. In February 2013, the Borough filed a non-traffic citation and a summons against Dennis for violating Section 16 of the Ordinance for not paying a special tax for garbage removal for the period of January 2013 to June 2013.

Section 16 of the Ordinance provides:

The legal and/or equitable owner(s) of the real estate containing a residential establishment shall be responsible to pay, and shall pay, the fees, fines and penalties as may be imposed pursuant to the provisions of this article. A residential establishment is exempt from this section only if it is an unoccupied dwelling unit as defined pursuant to this article.

An " unoccupied dwelling unit" is defined as " [a] dwelling unit within the Borough of Walnutport which is unfit to live in and/or which is not receiving municipal water and/or sewer service." Section 2 of the Ordinance.

Dennis pled not guilty. The matter was heard by a magisterial district judge, who found Dennis guilty of the offense and ordered him to pay restitution, plus fines and costs. Dennis timely appealed to the trial court.

The trial court held a non-jury, de novo trial on the summary appeal. On behalf of the Borough, Annette Lacko, Secretary and Treasurer for the Borough (Secretary), and Eric Stohl, the Borough's Code Enforcement Officer (Code Officer), testified.

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Secretary testified she bills residents for municipal services provided by the Borough as part of her duties. Included among these, she bills residential property owners twice a year for garbage removal services in the amount of $110 for a total of $220 per year. Tr. Ct. Hr'g, 12/11/13, Notes of Testimony (N.T.) at 5. Secretary testified she mailed an invoice to Dennis at the property for garbage removal services in October 2012, but he did not pay it. Id. at 8-9. The late fee is $11. Id. at 9. After Dennis did not pay, she sent out a past due notice, a delinquent notice, and a final notice. Id. at 11. She sent the notices via certified and regular mail. Id. The notices mailed certified came back unclaimed, but the notices sent regular mail were not returned. Id. Secretary testified Dennis paid the 2014 bill on time. Id. at 12.

Secretary explained the only way a property owner is exempt from paying for garbage removal is if the house is uninhabitable or does not receive water or sewer service. Id. On cross examination, Secretary testified she bills every residential property owner, regardless of whether the resident uses the garbage removal service or lives at the property. Id. at 15-16. The property contains a single-family residence, which receives municipal water service and does not qualify for exemption as an " unoccupied dwelling unit." Id. at 7, 13.

Code Officer testified he issued the citation because Dennis did not pay the garbage bill. Id. at 19 . Code Officer posted the third and final notice to the door of the house before issuing the citation. Id. at 20. On cross examination, Code Officer acknowledged he issued Dennis a citation in 2004 for not paying for garbage removal, which was dismissed. Id. at 23. He also confirmed he issued another citation in 2008 because Dennis did not contract or pay for garbage removal services, which was also dismissed. Id. Code Officer testified the property receives municipal water service as evidenced by Dennis' water bill. Id. at 25. Other than the bill, Code Officer did not know if or how Dennis actually uses the municipal water service. Id. Code Officer did not know whether there is a well on the property. Id. at 22-23.

On redirect examination, Code Officer testified even if a residence has a well, it will still have a water meter. Id. at 26. The Borough calculates sewer fees based on the gallons of water used as reflected on the meter. Id. at 26-27. In other words, if a resident uses one gallon of water, he is charged with using one gallon of sewer. Id. at 27. As for the prior citations, Code Officer testified they were issued under prior ordinances. He acknowledged the Borough amended prior ordinances to reflect past litigation. Specifically, the Ordinance changed the definition of " unoccupied dwelling unit." Id. at 28. It also changed the waste hauler and the billing process. Id. at 29. Under the current Ordinance, the Borough collects the fees, not the waste hauler. Id.

Dennis did not testify. However, Dennis stipulated that: he did not pay the garbage bill; he was the exclusive owner of the property; and, the property is habitable and receives water service. N.T. at 9, 13; see C.R., Item No. 6, Def.'s Br. in Support of Post-Trial Args. at 2.

At the conclusion of the trial, Dennis raised a double jeopardy argument. Id. at 35. The trial court, with the assent of both parties, requested the parties file briefs in support of post-trial arguments. In his post-trial brief, Dennis presented the same arguments raised now on appeal.

Based on the evidence and arguments presented, in January 2014, the trial court entered a verdict of guilty. The trial court ordered Dennis to pay restitution in the amount of $121 plus fines. In support, the

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trial court filed a 16-page opinion.[4] From this decision, Dennis appealed to this Court.

II. Issues

On appeal,[5] Dennis contends the trial court procedurally erred by not addressing his double jeopardy claim until after the trial. He argues the trial court substantively erred by not dismissing the citation on double jeopardy grounds as he was previously prosecuted for the same offense.

In addition, Dennis argues the trial court should have dismissed the citation for lack of specificity. According to Dennis, the citation does not include the basic elements of the charged offense. Further, he contends the Borough did not present sufficient evidence to prove beyond a reasonable doubt the requisite elements of the offense.

Finally, Dennis asserts the trial court erred by not invalidating the Ordinance as unconstitutional or contrary to the law. Dennis claims the ordinance violates equal protection because there is no rational nexus between having water or sewer service and paying for garbage removal. He further contends the ordinance is invalid because it imposes criminal penalties for civil citations and it makes the individual, rather than the property, liable for the alleged violation.

III. Discussion

A. Double Jeopardy -- Procedural Error

First, Dennis contends the trial court procedurally erred or abused its discretion by not ruling on his assertion of a constitutional right against being twice placed in jeopardy for the same offense raised at trial. Dennis claims the trial court abrogated his constitutional right by denying an immediate interlocutory appeal. According to Dennis, he was ...


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