Opinion
No. 1803 C.D. 2014
07-10-2015
Borough of Walnutport v. Timothy Dennis, Appellant
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this, his most recent appeal to this Court, Timothy Dennis (Dennis) asks whether the Court of Common Pleas of Northampton County (trial court) erred by adjudicating him guilty of two non-traffic citations under two chapters of the Borough of Walnutport (Borough) Code (Code). Specifically, the trial court found Dennis guilty of violating: (1) Section 1 of Chapter 219 of the Code, titled "Grass, Weeds and Other Vegetation" (Grass and Weed Ordinance), for failing to maintain grass and weeds below a height of 12 inches on his property, and (2) Section 16 of Chapter 377 of the Code, titled the "Walnutport Borough Municipal Solid Waste Ordinance" (Waste Ordinance) for not paying his garbage removal services fee. The trial court ordered Dennis to pay restitution, fines and all court costs.
Dennis has filed numerous appeals stemming from citations issued by the Borough of Walnutport, as we recently observed in Borough of Walnutport v. Dennis, ___ A.3d ___ (Pa. Cmwlth., No. 256 C.D. 2014, filed March 30, 2015), 2015 WL 1472077 (Dennis I).
The Honorable Anthony S. Beltrami presided.
Adopted on June 14, 2012 by Ordinance No. 2012-08. The Code is a consolidation and codification of Borough ordinances as a single ordinance, consisting of Chapters 1 through 450.
Adopted on March 21, 1983, by Ordinance No. 83-2.
Adopted on January 12, 1970, by Ordinance No. 194, amended in its entirety on May 12, 2011, by Ordinance No. 2011-05.
Dennis argues the trial court erred or abused its discretion by: not ruling on his double jeopardy claim at the start of the trial; denying his double jeopardy claim; refusing to continue the matter for interlocutory appeal; determining the citations were sufficiently specific; determining the Borough proved the requisite elements of the offenses with substantial evidence; refusing to invalidate the Waste Ordinance as unconstitutional or contrary to law; determining the Borough complied with notice requirements; and, determining the Grass and Weed Ordinance was a property maintenance ordinance rather than a nuisance ordinance. Discerning no error, we affirm.
I. Background
Dennis is the owner of residential property located at 645 Lehigh Gap Street (property), within the Borough. In July 2013, the Borough cited Dennis for violating Section 1 of the Grass and Weed Ordinance for allowing grass and weeds to exceed 12 inches on his property. In August 2013, the Borough cited Dennis for violating Section 16 of the Waste Ordinance for not paying a special tax for solid waste collection services.
Dennis pled not guilty to both offenses. The matters were heard by a magisterial district court, which found Dennis guilty of the alleged offenses and ordered him to pay restitution, fines and costs. Dennis timely appealed to the trial court.
The trial court held a non-jury, de novo trial on both summary appeals. On behalf of the Borough, Annette Lacko, Secretary and Treasurer for the Borough (Secretary), and Eric Strohl, the Borough's Code Enforcement Officer (Code Officer), testified. Dennis testified in his own defense. The trial court made the following findings.
With regard to the citation for violation of the Waste Ordinance, the Borough contracts with and pays a third-party waste hauler to remove solid waste from residential properties within its bounds. The Borough then collects a fee from each resident for this service. The Borough bills residents $110 every six months for garbage collection. Under the Waste Ordinance, the owner of real estate containing a residence in the Borough is responsible for paying this bill. The Borough sends out a notice when the bill is due. If the owner does not pay the bill, the Borough sends out a past-due notice, followed by, if necessary, a delinquent notice.
On April 9, 2013, the Borough billed Dennis for garbage collection for the second half of 2013 in the amount of $110. When Dennis did not pay the bill, the Borough mailed past-due, late and delinquent notices to his address, and charged a late fee of $11, bringing the total amount due to $121. Dennis did not respond, and the Borough posted his property with a delinquent notice. At the time of the hearing, Dennis stipulated the $121 bill remains unpaid. At the end of August 2013, the Borough issued Dennis a citation for nonpayment of his garbage bill.
With regard to the citation for violation of the Grass and Weed Ordinance, the Ordinance prohibits the presence of grass, weeds and/or non-edible or non-decorative vegetation in excess of 12 inches on Borough residential properties. Code Officer testified he conducted a visual inspection of Dennis' property in June 2013, which revealed excessive growth of grass and weeds. Code Officer sent Dennis a notice to remove the offending vegetation and then posted a notice on Dennis' property. When Dennis did not take corrective action, Code Officer cited Dennis for violating the Grass and Weed Ordinance at the end of July 2013. In August 2013, Code Officer took photos of the property and used a ruler to confirm the weeds and grass exceeded 12 inches. Code Officer testified there was no observable change in condition of the property between June and August 2013.
Dennis testified he was traveling and away from his property during the summer of 2013, between mid-June and mid-August. He admitted that, during this time, no maintenance was performed on his property. Upon his return, he mowed the lawn. Dennis saw the posted notice in mid to late August on his front door, and he personally removed the notice.
Based on the evidence and arguments presented, the trial court determined Dennis violated Section 16 of the Waste Ordinance and Section 1 of the Grass and Weed Ordinance. The trial court ordered Dennis to pay a fine of $300 for each violation, all court costs, restitution in the amount of $121, plus a $10 E.M.S./CAT Fund fee. Dennis appealed to this Court. The trial court directed Dennis to file a concise statement of errors complained of on appeal. Dennis filed a statement containing 23 alleged errors. In response, the trial court issued a 20-page opinion in support of its decision.
II. Issues
On appeal, with regard to the violation of the Waste Ordinance, Dennis contends the trial court and the district magistrate court procedurally erred by not immediately addressing Dennis' assertion of a constitutional right against double jeopardy or granting him a continuance to allow an immediate interlocutory appeal. 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.
Where the trial court receives additional evidence in deciding whether there was a summary violation of an ordinance, our review is limited to determining whether constitutional rights were violated or whether the trial court abused its discretion or committed an error of law. Dennis I.
In addition, Dennis argues the trial court should have dismissed the Waste Ordinance citation for lack of specificity. According to Dennis, the citation does not include the requisite elements of the charged offense. Further, he contends the Borough did not present sufficient evidence to prove the elements of the offense beyond a reasonable doubt.
Further, Dennis asserts the trial court erred by not invalidating the Waste Ordinance as unconstitutional or contrary to the law. Dennis claims the ordinance violates equal protection. He further contends the Waste Ordinance is invalid because it improperly imposes criminal penalties for civil citations and it makes the individual, rather than the property, liable for the alleged violation.
In Dennis I, we addressed and rejected similar, if not identical, issues in Dennis' prior appeal from a summary conviction for violating Section 16 of the Waste Ordinance for not paying his garbage bill for the first half of 2013. Dennis filed his brief in this case the day after Dennis I was filed. The Borough heavily relied on Dennis I in support of its position. In his subsequent reply brief, Dennis referred to Dennis I only for the proposition that double jeopardy protections may be asserted for a violation of a municipal ordinance, nothing more.
With regard to the violation of the Grass and Weed Ordinance, Dennis maintains the trial court erred or abused its discretion in determining the Borough complied with the notice requirements. He also argues the trial court erred in determining the Grass and Weed Ordinance was a "property maintenance" ordinance rather than a "nuisance" ordinance. Finally, he asserts the trial court erred by not dismissing the citation where the citation did not allege or prove the necessary elements of the charged offense.
III. Discussion
A. Double Jeopardy - Procedural Error
First, Dennis claims the trial court and the magisterial district court committed a procedural error with regard to Dennis' assertion of a constitutional right against being twice placed in jeopardy for the same offense raised at trial. He further contends both courts abrogated his constitutional right by denying an immediate interlocutory appeal. Dennis claims he was prejudiced by the courts' actions because he was forced to expend resources of time and money to defend the second prosecution for the same offense.
Insofar as Dennis challenges the actions of the magisterial district court, any alleged errors by the magisterial district court were rendered moot by the trial de novo conducted by the trial court. See Pa. R. Crim. P. No. 462(A). Our review is limited to the actions of the trial court. See Commonwealth v. Stone, 788 A.2d 1079 (Pa. Cmwlth. 2001).
"A motion to dismiss on double jeopardy grounds shall state specifically and with particularity the basis for the claim of double jeopardy and the facts in support of the claim." Pa. R. Crim. P. 587(B)(1). Typically, a motion to dismiss on double jeopardy grounds is presented as a pre-trial motion and part of pre-trial procedures, not post, so that a hearing can be held on the motion. Borough of Walnutport v. Dennis, ___ A.3d ___ (Pa. Cmwlth., No. 256 C.D. 2014, filed March 30, 2015) 2015 WL 1472077 (Dennis I); see Pa. R. Crim. P. 587.
Generally, criminal defendants have a right to appeal a trial court's pre-trial double jeopardy determination, even though the ruling is technically interlocutory. Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011) (per curiam) (citing Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977) (plurality opinion)); Commonwealth v. Dimmig, 456 A.2d 198 (Pa. Super. 1983). "[P]retrial orders denying double jeopardy claims are final orders for purposes of appeal." Orie, 22 A.3d at 1024 (quoting Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per curiam)) (emphasis omitted); accord Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986). The basis for this rule is to provide a defendant who has a meritorious claim an effective procedural means of vindicating his constitutional right to be spared a second trial for the same offense. Brady.
Here, as the trial court noted, Dennis technically filed a written pre-trial motion to dismiss on double jeopardy grounds on the date of the trial. Tr. Ct., Slip Op., 12/16/14, at 7 n.4. However, Dennis did not present the written motion to the trial court or serve a copy of the motion on the Borough prior to or during the trial. Id., see Certified Record (C.R.), Tr. Ct. Summary Appeal Hr'g, 8/27/14, Notes of Testimony (N.T.) at 13. The trial court was not aware of the pretrial motion until after the trial concluded. Tr. Ct., Slip Op., at 7 n.4.
Notwithstanding the trial court's lack of awareness of the pretrial motion, Dennis orally moved for dismissal at trial. However, he waited until after the Borough presented its first and only witness and documentary evidence in support of the merits of the Waste Ordinance citation. N.T. at 11-13. In his oral motion, Dennis did not state specifically and with particularity the basis for the claim of double jeopardy and the facts in support of the claim. Dennis merely asserted double jeopardy on the basis that prior citations were "almost exactly the same" and "[t]here's no differentiation between certain time periods or different amounts of garbage." Id. at 14. According to Dennis, the Borough "can just keep charging the same thing over and over ...." Id. at 15. Although Dennis referenced a motion, the trial court thought Dennis was referring to a motion he filed in a prior case. Tr. Ct., Slip Op., at 7 n.4.
The Borough defended that double jeopardy did not attach because every six months there is a new garbage bill for a new service period, which if not paid becomes a new offense. Id. at 13. The trial court asked whether Dennis was "ever charged with failing to pay the second half of 2013 in another proceeding," to which Dennis' counsel responded "[n]o." Id. at 17 (emphasis added). After hearing the parties' arguments, the trial court denied the motion. Id. at 19-20.
Under the circumstances, we discern no procedural error. As we recently explained in Dennis I in response to the same issue:
Even if Dennis properly raised the motion at the start of the hearing, we find no error. At the onset of the trial, it was not clear whether double jeopardy attached. Some of the testimony elicited at the hearing on the merits of the citation was necessary to make a determination on a motion to dismiss on grounds of double jeopardy. See Pa. R. Crim. P. 587(B)(2) (a court may conduct a hearing on a motion to dismiss on double jeopardy grounds). For these reasons, we conclude Dennis' assertions of procedural error are unavailing and without merit.___ A.3d at ___, slip op. at 9, 2015 WL 1472077 at *4 (emphasis added). Here, as in Dennis I, even if Dennis clearly presented the motion at the start of the trial, it was not clear whether double jeopardy attached. Therefore, the trial court did not commit any procedural error by ruling on Dennis' double jeopardy motion after receiving evidence and hearing argument on the motion.
After the trial court denied Dennis' oral motion, Dennis asked the trial court to continue the matter for purposes of taking an interlocutory appeal. N.T. at 20. The trial court denied his request. Id. at 26. Although Orie, Dimmig, and Brady provide a defendant is entitled to an interlocutory appeal on a pretrial motion, Dennis' oral motion occurred after the case proceeded on the merits. Nevertheless, even if we were to conclude the trial court erred by not staying the matter for interlocutory appeal, such error was harmless because, as we discuss in greater detail below, double jeopardy did not attach.
Although the Borough asserts Dennis was not entitled to an immediate appeal because his claim was frivolous, the trial court did not expressly find the claim frivolous. See Commonwealth v. Orie, 33 A.3d 17 (Pa. Super. 2011) (the right of an immediate appeal is not available when the motion to dismiss on double jeopardy grounds is based on frivolous or futile claims, which must be expressly identified by a trial court through a written finding).
B. Double Jeopardy - Substantive Error
Next, Dennis claims the trial court committed a substantive error of law or an abuse of discretion in failing to recognize that the Borough's prosecution was a violation of his constitutional right against double jeopardy. Dennis was found not guilty in the 1990s, twice in 2004, and once in 2008 of the charge of non-payment of a special tax for garbage collection services; he was found guilty in 2011 and 2013 of the same charge. By allowing the Borough to retry him for the same offense, Dennis contends the trial court abrogated his constitutional right against double jeopardy.
As we recognized in Dennis I, double jeopardy protections may be asserted for a violation of a municipal ordinance. Under the Double Jeopardy Clauses of both the United States and Pennsylvania Constitutions, as well as under the Crimes Code, a second prosecution for the same offense is prohibited. See U.S. CONST. amend. V; PA. CONST. art. I, §10; 18 Pa. C.S. §109(1). This rule barring retrial is confined to cases where the prosecution's failure to meet its burden is clear and a second trial would merely afford the prosecution another opportunity to supply evidence that it failed to put forth in the first proceeding. Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001). "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).
Pursuant to the Crimes Code, a prosecution for a violation of the same provision of a statute, based on the same facts as a former prosecution, is barred if the former prosecution resulted in an acquittal or conviction or was terminated. 18 Pa. C.S. §109. Even where a prosecution is for a violation of a different provision of the statute or is based on different facts, it is likewise barred if such former prosecution resulted in acquittal or conviction and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and occurred within the same judicial district as the former prosecution unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or18 Pa. C.S. §110(1).
(B) the second offense was not consummated when the former trial began.
Here, the Borough charged Dennis with violating Section 16 of the Waste Ordinance because he did not pay his 2013 biannual trash collection services fee. Although Dennis was previously prosecuted and found not guilty in the 1990s, 2004 and 2008 for violating a prior ordinance for not paying prior garbage bills, and found guilty in 2011 and 2013 under the current Waste Ordinance, the current citation deals with the failure to pay a garbage bill for services rendered in the second half of 2013, which is a new violation. See Dennis I. By Dennis' own admission, he was never charged with failing to pay the bill for the second half of 2013 in any another proceeding. N.T. at 17. As we explained in Dennis I, a single criminal episode does not exist between any of the prior citations and the current 2013 citation. "To conclude otherwise would essentially give Dennis a free pass from paying all future bills for garbage removal." Dennis I, ___ A.3d at ___, slip op. at 12, 2015 WL 1472077 at *6. Thus, the trial court did not err in determining double jeopardy protections did not attach.
C. Elements of Waste Ordinance Offense
Next, Dennis claims the trial court erred or abused its discretion by failing to dismiss the citation where the Borough did not allege the necessary elements of the charged offense. Specifically, Dennis asserts the Borough did not allege that he: uses the garbage service, resides at the property, is registered to vote in the Borough, has a Pennsylvania driver's license with the property's address, or registers his vehicles at the address. The Borough did not allege or prove that garbage service is actually provided to Dennis. Significantly, the citation does not state the time period of the offense. The Borough only made a general allegation of non-payment of a "garbage bill" without other necessary elements.
Article I, Section 9 of the Pennsylvania Constitution provides, "[i]n all criminal prosecutions the accused hath a right ... to demand the nature and cause of the accusation against him." PA. CONST. art. I, §9. In addition, Pennsylvania citation procedures provide: "[e]very citation shall contain ... the specific section of the ... ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged." Pa. R. Crim. P. 403(A)(6).
"[T]he essential elements of a summary offense must be set forth in the citation so that the defendant has fair notice of the nature of the unlawful act for which he is charged." Commonwealth v. Nicely, 988 A.2d 799, 806 (Pa. Cmwlth. 2010) (quoting Commonwealth v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997), aff'd, 723 A.2d 1021 (Pa. 1999)). In other words, "[a] defendant should not have to guess which charges have been placed against him. If charges in an indictment are not clear and explicit a defendant cannot properly defend against them." Commonwealth v. Wolfe, 289 A.2d 153, 155 (Pa. Super. 1972).
In order for a summary citation to be dismissed for defects in a citation, the defendant must suffer actual prejudice. Pa. R. Crim. P. 109; Dennis I; Borriello. Actual prejudice will not be found where the content of the citation, taken as a whole, sufficiently notifies the defendant as to the nature of the summary offense or where the defect or omission does not involve the basic elements of the offense charged. Dennis I; Borriello.
Section 16 of the Waste Ordinance sets forth the basic elements of the offense:
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.
A "residential establishment" is defined as:
Any premises utilized primarily as a residential dwelling unit, including but not limited to, homes and mobile homes; apartment are considered commercial establishments. A commercial establishment containing not more than two residential dwelling units may elect to have the residential units considered a residential establishment by written notice to the Borough Secretary.Section 2 of the Waste Ordinance. The Waste Ordinance defines dwelling unit as "[a]ny structure, or part thereof, designed to be occupied as living quarters as a single house keeping unit." Id. The Waste Ordinance defines "unoccupied dwelling unit" as "[a] dwelling unit within the [Borough] which is unfit to live in and/or which is not receiving municipal water and/or sewer service." Id.
Here, the citation placed Dennis on notice of the charges against him. The citation charged Dennis with violating Section 16 of the Waste Ordinance, and it described the nature of the offense as "[defendant] failed to pay for garbage removal services provided to the property." C.R., Borough Ex. No. W-6. Contrary to Dennis' assertions, the Borough did not need to allege that Dennis resided at the property or used the garbage removal service. Dennis I; see Section 16 of the Waste Ordinance.
Although the notice did not set forth the time period of the violation, Dennis cannot reasonably claim surprise or resulting prejudice warranting dismissal. Prior to issuing the citation, the Borough mailed Dennis an invoice and past-due notices regarding the 2013 garbage bill by both certified and regular mail. N.T. at 8, 9. In addition, the Borough posted the past-due and delinquent notices to the door of the house. See id. at 9; C.R., Borough Ex. No. W-4 (Photos 4 & 7). Dennis stipulated he did not pay the garbage bill for the second half of 2013. N.T. at 9. The citation was dated August 29, 2013. C.R., Borough Ex. No. W-6. The content of the citation, taken as a whole, sufficiently notified Dennis of the nature of the summary offense and the violation charged. See Dennis I. For these reasons, the trial court did not err by not dismissing the citation for lack of specificity.
D. Beyond a Reasonable Doubt
Dennis also argues the trial court erred and abused its discretion in finding the Borough proved the elements of the offense beyond a reasonable doubt. Specifically, Dennis claims the Borough did not prove: (1) solid waste removal service was provided to the property; (2) the property used the solid waste removal service; (3) the property is primarily utilized as a "residential establishment"; (4) there was water usage at the property; and, (5) a contract between the Borough and the waste hauler.
In addition, Dennis contends the Borough violated his equal protection rights because other similarly situated properties are treated disparately. He claims there is no rational nexus between having water or sewer service and paying for garbage collection. Dennis submits that the classification is unreasonable and constitutes a violation of his equal protection rights. However, Dennis did not raise this issue before the trial court. See Tr. Ct. Slip Op. at 14. Issues not raised before the trial court are waived and cannot be raised for the first time on appeal. See Pa. R.A.P. 302(a); Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010). Notwithstanding waiver, in Dennis I, this Court examined this exact issue, and we determined the Waste Ordinance's criteria used to classify those properties that are excluded from paying the fee are rational and constitutionally permissible.
As we explained in Dennis I, in response to this same issue:
In summary offense cases, the prosecution is required to establish a person's guilt beyond a reasonable doubt. The test for evaluating the sufficiency of the evidence in a conviction for a summary offense is whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the prosecution, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.___ A.3d at ___, slip op. at 16-17, 2015 WL 1472077 at *8 (citations omitted).
As discussed above, in order to show Dennis violated Section 16, the Borough needed to prove: (1) Dennis was the legal and/or equitable owner of Borough property; (2) the property contains a 'residential establishment,' not an 'unoccupied dwelling unit'; and, (3) Dennis did not pay requisite fee. Under the [Waste] Ordinance, the Borough did not need to establish that Dennis resided at the property or used the garbage removal service.
Here, Secretary testified she generates invoices for garbage collection as part of her duties. N.T. at 4. The Borough has a four-year contract, which is bid out, with a waste hauler. Id. The Borough pays the hauler, and the residents pay the Borough. Id. Every residential unit is responsible for paying a garbage fee. Id. at 4, 36. She bills the residents every six months for garbage removal. Id. at 5. The fee is $110. Id.
According to Secretary, Dennis owns the property, which is improved with a single-family residence. Id. The property is residential, not commercial. Id. at 33; see Borough Ex. No. W-3. The residence received municipal water service during the applicable billing period, and, therefore, it did not qualify for an exemption as an uninhabitable property. N.T. at 10, 33. Secretary explained a property owner would be entitled to a waiver of the garbage bill if he turned off the water service to the property because the property would be unfit for residential habitation. Id. at 10, 29, 34. The Borough presented a document from the water authority certifying the property received water service during the second half of 2013. Id. at 10, Borough Ex. No. W-5.
Secretary further testified she keeps track of the bills, past-due notices and delinquent notices. Id. at 7. She sent Dennis a bill for garbage service for the second half of 2013, followed by a past-due notice, a late notice and a delinquent notice, which were sent by regular mail, certified mail and posted to his property. Id. at 8, 9; C.R., Borough Exhibit No. W-4. Secretary testified garbage collection service continues, even when an account is delinquent. She explained the Borough continues the service because it is "a health hazard if garbage is not picked up." Id. at 32. Dennis himself stipulated he owns the residence, and he did not pay the garbage bill. Id. at 8-9. Upon review, this evidence proves beyond a reasonable doubt that Dennis violated Section 16 of the Ordinance.
E. Constitutionality of Ordinance
Further, Dennis contends the trial court erred or abused its discretion by not declaring the Ordinance unconstitutional as it imposes criminal penalties for nonpayment of an invoice for municipal services. Invoices for municipal services, such as garbage collection, should not be deemed criminal in nature when the person neither requested nor used the service. Rather, invoices for such services are civil and should be charged under what is commonly referred to as the Municipal Claims and Tax Liens Act (MCTLA).
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7505.
Municipal ordinances are presumed valid, and the burden is on the challenger to prove otherwise. Cranberry Park Assocs. ex rel. Viola v. Cranberry Twp. Zoning H'rg Bd., 751 A.2d 165 (Pa. 2000); Trigona v. Lender, 926 A.2d 1226, 1233 (Pa. Cmwlth. 2007). "A municipal ordinance may be declared invalid only when it violates fundamental law clearly, palpably, plainly and in such manner as to leave no doubt or hesitation in the court's mind." Trigona, 926 A.2d at 1233; accord Ridley Arms v. Township of Ridley, 531 A.2d 414 (Pa. 1987).
"As a general rule, a municipality does not possess and cannot exercise any other than the following powers: 1) those expressly granted; 2) those necessary or fairly implied in or incident to the powers expressly granted; and 3) those indispensable to the declared objects and purposes of the municipality." Trigona, 926 A.2d at 1234. A municipality is powerless to enact ordinances except as authorized by statute, and ordinances not in conformity with their enabling statute will be void. Id. at 1234 (citing City of Phila. v. Schweiker, 858 A.2d 75 (Pa. 2004)).
The Borough Code expressly grants boroughs legal authority to regulate garbage collection and removal service within their jurisdiction. Section 1202(8) of the former Borough Code, 53 P.S. §46202(8); see 8 Pa. C.S. §1202(8). As we explained in Dennis I:
Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §§45101-48501, which was in effect at the time the Ordinance was adopted and the citation was issued, was repealed and replaced by 8 Pa. C.S. §§101-3501, effective June 17, 2014.
Pursuant to Section 3321 of the former Borough Code, FN10 a borough ordinance 'shall prescribe the fines and penalties which may be imposed for its violation ... and shall designate the method of its enforcement.'
For an ordinance regulating health and public safety, the ordinance shall provide that its enforcement shall be by action brought before a magisterial district judge in the same manner provided for the enforcement of summary offenses under the Pennsylvania Rules of Criminal Procedure. Former 53 P.S. §48321(2). A borough may prescribe criminal fines not to exceed $1,000 per violation and may prescribe imprisonment to the extent allowed by law. Id. Ordinances that regulate the collection, transportation and disposal of solid waste
promote public health, public safety and welfare. Ridley Arms; Nat'l Props., Inc. v. Borough of Macungie, 595 A.2d 742 (Pa. Cmwlth. 1991)., see Section 102 of the Solid Waste Management Act FN11 (declaring 'improper and inadequate solid waste practices create public health hazards, environmental pollution, and economic loss, and cause irreparable harm to the public health, safety and welfare'); Section 102(b)(3) of the Municipal Waste Planning, Recycling and Waste Reduction Act FN12 (providing the express purpose of the act includes '[p]rotect[ing] the public health, safety and welfare from the short- and long-term dangers of transportation, processing, treatment, storage and disposal of municipal waste.').
In addition to enforcement as a summary offense, boroughs may bring an action in equity. Former 53 P.S. §48321(4); see also 8 Pa. C.S. §3321(c). The Borough is also authorized to collect delinquent taxes by utilizing the method and specific procedures afforded by the MCTLA, which provides for liens against the property. Section 4 of the MCTLA, 53 P.S. §7107.
___ A.3d at ___, slip op. at 21-22, 2015 WL 1472077 at *10.FN10 Added by the Act of May 17, 2012, P.L. 262, 53 P.S. §48321. ....
FN11 Act of July 7, 1980, P.L. 380, 35 P.S. §6018.102.
FN12 Act of July 28, 1988, P.L. 556, 53 P.S. §4000.102(b)(3).
Here, pursuant to its express powers under the former Borough Code, the Borough adopted the Waste Ordinance for the collection, transportation and disposal of solid waste. The Waste Ordinance prescribes the fines and penalties, which may be imposed for its violation and designates the method of its enforcement. Section 17 of Waste Ordinance. Specifically, "[a]ny person ... who shall violate any provision of this article shall, upon conviction thereof, be sentenced to pay a fine of not less than $300.00 or more than $1,000.00 plus costs and, in default of payment of said fines and costs, to a term of imprisonment not to exceed 30 days." Id.
As the collection, transportation and disposal of garbage is a health, safety and welfare issue, the Borough was permitted to penalize any residential property owners for refusing to comply with the terms of the Ordinance. Dennis I; see former 53 P.S. §48321(2). The fact that other methods of enforcement were available to the Borough did not negate the Borough's right to issue a non-traffic summary citation. Dennis I. As no fundamental laws were clearly, palpably and plainly violated, Dennis' argument is without merit.
F. In rem or Personal Liability
Dennis next contends the trial court erred and abused its discretion by not invalidating the Ordinance based on the fact it made the individual, rather than the property, liable for the violation. Dennis asserts a tax for garbage services, much like water, electric, sewer and gas, is a special tax subject to the MCTLA. Special taxes are civil in nature and are subject to in rem proceedings, i.e., against the property, not the person. According to Dennis, the Borough is not allowed to bring a criminal action against him personally for the failure to pay for municipal services.
In Dennis I, this Court fully analyzed this legal issue. We determined that, although boroughs may enforce ordinances through an action in equity or by placing a lien on the property under the MCTLA, such alternate enforcements do not render the criminal enforcement against the person unlawful or unconstitutional. Dennis I. We see no reason to depart from this reasoning. Thus, the trial court did not err by refusing to invalidate the Ordinance.
G. Notification
Turning to the Grass and Weed Ordinance issues, Dennis contends the trial court erred or abused its discretion in finding the Borough complied with the notice requirements. More particularly, he claims the Borough did not attempt personal service, consult with the chief of police before posting the property, or prove Dennis' actual receipt of notice.
Section 3 of the Grass and Weed Ordinance provides, with emphasis added:
The Borough ... is hereby authorized to give notice, by personal service or by United States mail, to the owner or occupant, as the case may be, of any premises whereon grass, weeds or other vegetation is growing or remaining in violation of the provisions of § 219-1 of this chapter, directing and requiring such occupant to remove, trim or cut such grass, weeds or vegetation so as to conform to the requirements of this chapter, within five days after issuance of such notice. Whenever, in the judgment of the Chief of Police of the [Borough], it shall appear to be impracticable to give notice as above provided, either because the owner or occupant cannot readily be found or because a search for the owner or occupant would entail unreasonable delay, the Borough ... may give notice by posting conspicuously on the property where such nuisance exists, a notice or order directing and requiring that such nuisance be abated within five days. ....
Pursuant to the Grass and Weed Ordinance, the Borough may provide notice by personal service "or" by mail. Id. The Borough notified Dennis by mail, both regular and certified. N.T. at 51, 59, 70. Contrary to Dennis' assertions, there was no requirement to also attempt personal service.
In addition, the Grass and Weed Ordinance permits notice by posting, which the Borough also provided. Dennis asserts this notice was defective because the Borough did not allege or prove the police chief was consulted before the property was posted. Pursuant to the Ordinance, such consultation is required only when it appears "impracticable to give notice" by mail or personal service. Section 3 of the Grass and Weed Ordinance. As the Borough provided notice by mail, there was no need to post the property at all. Thus, whether or not the chief of police was consulted beforehand is irrelevant.
Dennis also questions whether original process service can be completed by merely placing it in the mail without receiving a return receipt signed by a defendant. However, the Ordinance does not require return receipt. Dennis offers no legal basis in support of his position. Furthermore, although the notice sent by certified mail was returned unclaimed, Dennis admitted he received the posted notice and the notice sent by regular mail. N.T. at 88-89; see C.R., Borough Ex. No. Grass W-3. Thus, Dennis' assertions of error are without merit.
H. Property Maintenance or Nuisance Ordinance
Dennis also claims the trial court erred or abused its discretion in finding that the Grass and Weed Ordinance was a "property maintenance" ordinance rather than a "nuisance" ordinance because it addresses grass and weeds and nuisances per se. He argues the definition of weeds used by the trial court was not part of the Grass and Weed Ordinance but was adopted in a different ordinance at a later time.
Section 1 of the Grass and Weed Ordinance provides:
No person, firm or corporation, owning or occupying any property within the [Borough] shall permit any grass or weeds or any vegetation whatsoever, not edible or planted for some useful or ornamental purpose, to grow or remain upon such premises so as to exceed a height of 12 inches, or to throw off any unpleasant or noxious odor, or to conceal any filthy deposit, or to create or produce pollen. Any grass, weeds or other vegetation growing upon any premises in the [Borough] in violation of any of the provisions of this section is hereby declared to be a nuisance and detrimental to the health, safety, cleanliness and comfort of the inhabitants of the [Borough].The Grass and Weed Ordinance does not define the terms "grass" or "weeds."
Where a statute or municipal ordinance does not specifically define a term sought to be construed, courts "are guided to construe words and phrases in a sensible manner, utilize the rules of grammar and apply their common and approved usage, and give undefined terms their plain, ordinary meaning." Adams Outdoor Adver., LP v. Zoning Hr'g Bd. of Smithfield Twp., 909 A.2d 469, 483 (Pa. Cmwlth. 2006). Courts may look to guidance from definitions found in statutes, regulations, or the dictionary. Id.
Subsequent to the enactment of the Grass and Weed Ordinance in 1983, the Borough enacted "Ordinance 2007-07," which is now Chapter 318 of the Code, titled "Property Maintenance" (Property Maintenance Ordinance). The Property Maintenance Ordinance adopted the International Property Maintenance Code (IPMC). The IPMC defines "weeds" as "all grasses, annual plants and vegetation, other than trees or shrubs provided; however, this term shall not include cultivated flowers and gardens." IPMC §302.4.
In the abatement notice issued in June 2013, a month before the citation was issued, the Borough advised Dennis that the excessive growth of grass and weeds on his property violated not only the Grass and Weed Ordinance, but also the Property Maintenance Ordinance. C.R., Borough Ex. No. Grass W-4. The notice included the IPMC's definition of weeds. Id. Ultimately, the Borough cited Dennis only for a violation of the Grass and Weed Ordinance, not for the Property Maintenance Ordinance. C.R., Borough Ex. No. Grass W-5.
In determining whether Dennis violated the Grass and Weed Ordinance, the trial court referred to the IPMC's definition of weeds. Tr. Ct., Slip Op., at 16. The trial court continued:
An examination of the language of the Grass and Weed Ordinance, in accordance with the common and approved usage of the words therein, reveals that the ordinance provides reasonable notice of the conduct it proscribes. The terms 'grass' and 'weeds' are universally recognized and understood, with 'weeds' being further defined in the IPMC. Because the Grass and Weed Ordinance states unambiguously that the presence of grass and/or weeds in excess of twelve inches constitutes a violation, [Dennis] had adequate notice of what the [O]rdinance prohibited.Id. (emphasis added).
Contrary to Dennis' assertions, the trial court did not find the Grass and Weed Ordinance was a "property maintenance" ordinance as opposed to a "nuisance" ordinance. Rather, it merely referred to the IPMC's definition of weeds because the Grass and Weed Ordinance did not contain a definition. Ultimately, the trial court interpreted grass and weeds in accordance with the common and approved usage of the words as "universally recognized and understood, with 'weeds' being further defined in the IPMC." Id. Upon review, the trial court did not err or abuse its discretion in interpreting grass and weeds as it did.
I. Elements of the Grass and Weed Ordinance Offense
Finally, Dennis argues the trial court erred or an abused its discretion in failing to dismiss the Borough's citation because it did not allege the necessary elements of the charged offense. Specifically, Dennis claims the Borough did not allege, let alone prove, that the plant life on his property was not edible, useful or ornamental.
In essence, the Borough needed to prove that: Dennis was the legal owner or occupant of Borough property; grass, weeds or vegetation existed on the property; and, such grass, weeds or other vegetation: (a) exceeded a height of 12 inches, (b) emitted any unpleasant or noxious odor, or (c) concealed a filthy deposit. Section 1 of the Grass and Weed Ordinance. The exception is plant life that is edible or planted for some useful or ornamental purpose. Section 1 of the Grass and Weed Ordinance.
Here, there is no dispute Dennis owns the property. The Borough cited Dennis for having grass and weeds on his property in excess of 12 inches in height. In support, Code Officer testified he personally observed high grass and weeds on the property, over 12 inches tall, when he visited the property in June 2013. N.T. at 41. He sent Dennis a warning letter and posted the property. Id. at 41-42; C.R., Borough Ex. No. B8. When Dennis did not take corrective action, Code Officer issued Dennis a citation in July 2013 for violating Section 1 of the Grass and Weed Ordinance. N.T. at 42. After issuing the citation, Code Officer returned to the property in August 2013. Id. at 48. He again observed tall grass and weeds in excess of 12 inches. Id. He testified the condition of the property remained unchanged. Id. at 49. Dennis eventually mowed the grass and weeds, but this was after the time frame for remediation.
Code Officer testified the grass and weeds were not ornamental or edible based on his professional experience as a Code Officer, general knowledge of plants, and common sense. N.T. at 53-56, 67-68. The Borough stipulated the citation did not pertain to trees, shrubs and flowers, which are also on the property. Id. at 69; see id. at 67. In addition to Code Officer's testimony, the Borough offered photograph exhibits of the property taken by Code Officer in August 2013 showing tall grass and weeds. N.T. at 47; C.R., Borough Ex. Nos. B1-B7, B10, B13-18. In one photo, a tape measure placed next to the grass and weeds showed they exceeded 12 inches. C.R., Borough Ex. No. B3.
Dennis defended the pictures showed gladiolas, wildflowers, raspberries, grapevines, horseradish, wild carrot, and ailanthus trees. N.T. at 78, 79, 80, 81. He asserted these plants are not "weeds" because they are useful, edible or ornamental. Id. at 79, 93. However, he conceded his property has lawn areas planted with grass, which are depicted in some of the pictures. Id. at 78, 82. Dennis admitted the grass was "a little high ... because [he] was away for over a month." Id. at 78; see id. at 83. More particularly, he testified he was away from his property from mid-June to mid-August 2013. Id. at 75. He testified no one provided maintenance to the property during his two-month absence. Id. at 89. Dennis mowed the lawn areas of the property when he returned, which he has done for the last 30 years. Id. at 90.
In addition, Dennis admitted one of the photos showed some weeds. Id. at 80. He also admitted some of the plants are higher than 12 inches, but he denied the grass exceeded 12 inches. Id. at 79, 83. Although Dennis claimed there are other properties with high grass and weeds in the Borough, he did not know whether the Borough took any action against those properties. Id. at 90.
Upon review, the Borough affirmatively proved the essential elements of the offense. Although Dennis' property contains trees, shrubs, and ornamental or edible plants, the Borough stipulated these items did not constitute a violation of the Ordinance. The Borough proved the property also contains grass and weeds, which exceeded the height restriction. The Borough's evidence was further supported by Dennis' own testimony that he did not mow or maintain the grassy areas of his property for two months in the summer - the height of the growing season. The Borough's photographs clearly show the grassy areas are overgrown and in violation of the ordinance.
Insofar as Dennis challenges the photographs as the fruit of an illegal search, Code Officer testified he took all of the pictures from the curb. N.T. at 60. Although it appeared one photograph was not taken from the curb, Code Officer clarified he did not take any of the pictures while standing on Dennis' property. Id. The trial court credited his testimony. Id. at 62. Although Code Officer entered the property to post an abatement notice, such was not an illegal search. --------
IV. Conclusion
Upon review, we conclude the respected trial court did not abuse its discretion, commit an error of law, or violate Dennis' constitutional rights. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 10th day of July, 2015, the order of the Court of Common Pleas of Northampton County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge