IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania : : v. : No. 1117 C.D. 2014 : Submitted: December 12, 2014 Adams Association c/o : Robert Eisenzopf, : Appellant : BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: April 15, 2015 Appellant Adams Association c/o Robert Eisenzopf (Adams) appeals from an order of the Court of Common Pleas of Adams County (trial court). The trial court, following a non-jury trial, found Adams guilty of a summary offense violating Section 68.9(A) and (C) of Mount Joy Township (Township) Ordinance No. 2010-05 (Ordinance). 1 We reverse the trial court s order. 1 The Township s Board of Supervisors (Board) adopted the Ordinance on November 4, 2010, apparently in accordance with the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. 750.1-750.20a, which is commonly referred to as Act 537. Act 537 requires all Commonwealth municipalities to develop and implement comprehensive official plans for the resolution of existing sewage disposal problems, provide for the future sewage disposal needs of new land development and provide for future sewage disposal needs of the municipality. In re Appeal of Drumore Crossings, L.P., 984 A.2d 589, 593 n.5 (Pa. Cmwlth. 2009), appeal denied, 4 A.3d 1054 (Footnote continued on next page )
provides: Section 68.9(A) of the Ordinance, which is entitled [m]aintenance, [w]ithin an identified sewage management district (OLDS District), the owner of a building served by an on-lot sewage disposal system which contains a septic tank shall have the tank pumped to remove septage and other solids by a qualified pumper/hauler once every three years or whenever an inspection program reveals that the tank is filled with solids or with scum in excess of 1/3 of the liquid depth of the tank. (Reproduced Record) at 19a (emphasis added)). 2 On April 13, 2012, Lucinda Smith, the Mount Joy Township Code Enforcement Officer, sent a letter to Adams, addressed generically to [Township] Property Owner, concerning the Ordinance. In that letter, Ms. Smith advised Adams that the septic system responsibilities set forth in the Ordinance required a response from all property owners. (R.R. at 50a.) The letter also advised that the Ordinance required property owners to have their septic systems inspected and (continued ) (Pa. 2010). The Department of Environmental Protection has authority over the approval of plans developed by municipalities pursuant to Act 537. 2 Section 68.9(C) of the Ordinance also provides: Within thirty (30) days of the date of pumping, the owner of the building served by the septic tank shall submit a pumping receipt, together with a written statement from the pumper/hauler or from any other qualified individual acceptable to the Township, to the Township containing at the minimum the following information:... date of pumping... amount of sewage or other semi-solid or solid material removed... [and] [l]ist of recommendations for repair and/or maintenance.... 2
pumped once every three years by a Township-approved pumper/hauler and that the pumper/hauler was required to complete a Township-created report to be submitted within thirty days of the inspection and pumping. This letter also advised Adams that the Township required it to comply with the directive to have the system inspected and pumped by October 1, 2012. The letter informed Adams that [t]o more accurately maintain records of compliance with the required three year pumping schedule, septic tank pumping will be recognized as being in compliance with the [O]rdinance only if it is done in the year assigned [by the Township]. (Id.) Additionally, the letter added that [s]eptic tank pumping performed other than in the required year does not exempt the resident from pumping and filing a report in the year required by the assigned sewage management district. (Id.) Thereafter, in October and November 2012, Ms. Smith sent similar letters, designated as second and third notices. On February 8, 2013, Ms. Smith sent a Final Notice to Adams that included the same information as the second and third notices and indicated that Adams was required to have an inspection/pumping completed on or before March 31, 2013, or be subject to fines and penalties for the failure to comply. On June 28, 2013, Ms. Smith issued a non-traffic citation to Adams, asserting that Adams had violated Section 68.9(A) of the Ordinance by failing to have septic tank pumped if scum/solids exceed 1/3 of tank s liquid depth. R.R. at 15a.) Adams challenged the citation and, on July 29, 2013, Magisterial District Judge Daniel S. Bowman (MDJ Bowman) found Adams guilty of violating Section 68.9(A) of the Ordinance, described in the MDJ s order imposing sentence as [v]iolat[ion] of failing to have septic tank pumped. (Certified Record, following MDJ docket sheets.) MDJ Bowman imposed a fine of $100 and costs of $77.50. 3
On or about August 23, 2013, Adams appealed MDJ Bowman s finding of guilt to the trial court, and, on March 24, 2014, the trial court held a de novo hearing to address the charges against Adams. During the hearing, the Commonwealth presented the testimony of Ms. Smith and submitted numerous exhibits. Adams did not submit any evidence. The trial court concluded that the Commonwealth had sustained its burden of proof with regard to the summary offense charge under Section 68.9(A) and (C) 3 of the Ordinance and entered an order imposing upon Adams a fine of $1,000 plus costs. Adams appealed from that order 4 and, as directed by the trial court, submitted a statement of errors complained of on appeal. The trial court issued an opinion in accordance with Pa. R.A.P. 1925(a), rejecting the errors Adams raised in its Pa. R.A.P. 1925(b) statement of errors. On appeal to our Court, 5 Adams contends that the Commonwealth failed to establish that Adams violated Section 68.9(A) by proof beyond a reasonable doubt. Adams argues that the Commonwealth failed to prove that a violation occurred based upon evidence indicating that Adams septic tank was filled more than one-third of its liquid depth with solids or scum and that Adams property is located within the sewage management district subject to regulation 3 We are uncertain of the grounds upon which the trial court found Adams guilty of both subsections (A) and (C) of Section 68.9 of the Ordinance, when Ms. Smith only cited Adams with a violation of Section 68.9(A) of the Ordinance. 4 Adams appealed to the Superior Court, which transferred the appeal to this Court. 5 In reviewing a summary conviction matter, where the trial court has taken additional evidence in de novo review, our standard of review is limited to considering whether the trial court abused its discretion or committed an error of law. Commonwealth v. Spontarelli, 791 A.2d 1254, 1255 (Pa. Cmwlth. 2002). 4
under the Ordinance. Adams further argues that the Township s action constitutes an administrative decision such that the Township s governing body should have entertained an appeal, thereby exhausting administrative remedies, before issuing a citation. In Commonwealth v. Spontarelli, 791 A.2d 1254 (Pa. Cmwlth. 2002), we noted that [i]n summary offense cases, the Commonwealth is required to establish guilt beyond a reasonable doubt. Spontarelli, 791 A.2d at 1258. This court views all of the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. Id. The test of sufficiency of the evidence is whether the trial court, as trier of fact, could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Id. Additionally, the Pennsylvania Rules of Criminal Procedure apply to summary citations and are relevant when a defendant challenges the sufficiency of the notice contained in a summary citation. Rule 403 of the Pennsylvania Rules of Criminal Procedure sets forth the necessary contents of a summary citation and provides: Contents of Citation (A) Every citation shall contain:... (6) a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged. This Court has held that it is well established that the essential elements of a summary offense must be set forth in the citation so that the 5
defendant has fair notice of the nature of the unlawful act for which he is charged. Commonwealth v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997), affirmed, 723 A.2d 1214 (Pa. 1999). Pennsylvania Rule of Criminal Procedure 109 provides, however, that cases shall not be dismissed because of a defect in the form or content of a... citation... unless the defendant raises the defect before the conclusion of the trial in a summary case... and the defect is prejudicial to the rights of the defendant. Such prejudice will not be found where the content of the citation, taken as a whole, prevented surprise as to the nature of summary offenses of which [the] defendant was found guilty... at trial,... or the omission does not involve a basic element of the offense charged. Commonwealth v. Halstead, 79 A.3d 1240, 1243 (Pa. Cmwlth. 2013) (quoting Borriello, 696 at 1217) (altered language added in Halstead). Adams correctly points out that the Township only cited it under one aspect of Section 68.9(A) of the Ordinance for failure to have its septic tank pumped if solids or scum exceed one-third of the liquid depth of the tank. The Township did not cite Adams based upon its alleged failure to comply with the requirement to inspect and pump a septic tank every three years, nor did it cite Adams based on Section 68.9(C) of the Ordinance. Thus, based upon the content of the citation, in order to find it guilty, Adams contends that the Commonwealth would need to establish beyond a reasonable doubt that the solids or scum in its septic tank exceed one-third of the liquid depth of the tank, which it did not do. See Section 68.9(A) of the Ordinance. Rather, the Township established only that Adams did not provide proof that it had its septic tank pumped in 2012 (or the months thereafter). Adams argues that, because the Township did not cite it for 6
failure to have its septic tank pumped once every three years, id., the trial court erred in finding it guilty. 6 We agree with Adams that the citation was sufficient only to place it on notice of a violation based on failure to pump when solids or scum exceed one-third of the liquid depth of the tank. In Halstead, an enforcement officer issued a citation against a property owner identifying the ordinance provision allegedly violated and referred to roof joists exposed to exterior elements. Halstead, 79 A.3d at 1245. The provision the enforcement officer cited, however, provided that property owners should maintain structural members free from deterioration. We concluded that the citation was insufficient based upon our conclusion that the language included in the citation noted only exposure to elements rather than indicating that the violation was based on the failure to maintain joists free from deterioration. Id. In this matter, the enforcement officer only cited Adams for its alleged failure to pump out solids or scum that exceed one-third of the liquid depth of the tank, not for the alleged failure to pump once every three years. See Section 68.9(A) of the Ordinance. Consequently, we conclude that the citation was insufficient for purposes of prosecuting a violation for failure to have a scheduled inspection. Additionally, the Commonwealth s burden of proof with regard to the cited portion of the Ordinance required it to prove beyond a reasonable doubt that Adams septic tank contained solids or scum in excess of one-third of the liquid depth of the tank. The record contains absolutely no evidence indicating that the 6 Adams, in advancing this argument, does not admit that it violated Section 68.9(A) of the Ordinance s requirement that a septic tank be pumped once every three years, because the Ordinance had not yet been in effect for three years. 7
tank s internal solids or scum exceeded that amount. Consequently, we conclude that the evidence was insufficient, and the trial court erred in finding Adams guilty. 7 Because we conclude that the trial court erred in finding Adams guilty, we need not address Adams argument that the Commonwealth failed to prove that Adams property is within the sewage management district subject to regulation under Section 68.9(A) of the Ordinance. We also do not need to address Adams argument that the Township was required to entertain an appeal before issuing a citation. Accordingly, we will reverse the trial court s order. P. KEVIN BROBSON, Judge 7 The notices Ms. Smith sent to Adams suggest that the Township appears to have adopted an interpretation of Section 68.9(A) of the Ordinance, such that a property owner may demonstrate compliance with the provision if a hauler conducting a scheduled three-year inspection determines that a tank is not one-third full, by having the hauler complete and submit a form to the Township so indicating. But, that fact does not alter the analysis in a summary conviction matter. The citation only asserted that Adams had violated the Ordinance by failing to have [the] septic tanked pumped if scum/solids exceed 1/3 of the tank s liquid depth. (R.R. at 15a.) 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania : : v. : No. 1117 C.D. 2014 : Adams Association c/o : Robert Eisenzopf, : Appellant : O R D E R AND NOW, this 15th day of April, 2015, the order of the Court of Common Pleas of Adams County is REVERSED. P. KEVIN BROBSON, Judge