Opinion
No. 2241 C.D. 2012
07-11-2013
Commonwealth of Pennsylvania v. David J. Champiney, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
David J. Champiney (Champiney) appeals the judgment of sentence imposed by the Court of Common Pleas of Monroe County (trial court) based on his conviction for violating East Stroudsburg Borough (Borough) Code Section 150-23.1. We affirm.
Section 150-23.1 was enacted pursuant to Ordinance No. 1212 of 2008 which amended Chapter 150 of the Borough's Code. (Reproduced Record (R.R.) at 199a-200a.) Section 150-23.1 states:
No person shall offer for sale or sell, or offer to buy or buy any goods, wares or merchandise, from a vehicle parked upon any street or in a public parking lot in a metered or unmetered parking space. Borough Council only may waive enforcement of this provision for Borough-sponsored or -approved community events.
On December 14, 2011, Champiney was issued a citation by Officer John Indemaur (Officer Indemaur) of the Stroud Area Regional Police Department which alleged that he violated Code Section 150-23.1 because he was engaged in buying and selling books from a vehicle. On January 26, 2012, Champiney was adjudged guilty by a Magisterial District Judge and $318.50 in fines and costs were imposed. On February 24, 2012, Champiney appealed his conviction to the trial court.
At trial, Officer Indemaur testified for the Commonwealth, stating that he was asked by his Captain to investigate a complaint by Roger DeLarco (DeLarco) that someone was buying and/or selling books from a vehicle on Normal Street in the Borough. He stated that Normal Street is a very busy street with vehicular and pedestrian traffic that bisects the East Stroudsburg University (ESU) campus and explained that DeLarco is the chair of the Stroud Area Regional Police, president of Borough Council, and the person who operates the ESU Bookstore. He testified that he arrived at the location and observed six people in line on the sidewalk holding books. He stated that he saw them approach a van and then leave without the books, and that he videotaped this activity, which was admitted into evidence. He stated that the van was parked within 150 feet of the bookstore. He noted that there was not a lot of vehicular traffic on the street that day and that it was not impeded by the individuals in line. He testified that he approached the van and observed Champiney purchase a book from an individual. He stated that he issued the citation, explained what Champiney needed to do, and left the scene. He explained that he has never had to deal with an accident at that location where someone has been injured as the result of a book buy-back.
James Phillips (Phillips), the Borough's manager, testified for the Commonwealth, stating that Borough Council was aware of a company buying used books from students and that the Borough issued a peddler permit allowing that activity. He explained that the book buy-back typically occurs at the end of the school terms when students are finishing up their courses. He stated that a parking issue on Normal Street was brought to Borough Council's attention and the manner in which the activity was undertaken became a concern due to public safety issues. He testified that public safety was a particular concern on Normal Street because it is a very high vehicle and pedestrian traffic area, and that these concerns were expressed in the minutes of the Borough Council meetings regarding the enactment of Section 150-23.1. He stated that photographs of several vehicles with signs and canopies parked in metered parking spaces along Normal Street adjacent to the University Center Building with people engaged in selling and buying used books, (see Commonwealth Exhibit 7, R.R. at 214a-231a), were considered by Borough Council in enacting the ordinance. He testified that after reviewing the photographs, the Borough was concerned from a public safety standpoint that the activity encouraged people to stand or extend into the street or to block sidewalks. He also explained that the exception to the Code's prohibition, when the Borough waives its enforcement, is for Borough- or community-sponsored events such as a festival or block party. During his testimony, Phillips identified an e-mail dated May 8, 2008, that he received from DeLarco that was admitted into evidence in which DeLarco questioned whether such activity was permitted in the Borough and in which DeLarco complained that the temporary vendors on Normal Street should not be allowed to compete with the local bookstore. (See Defense Exhibit 1, R.R. at 238a.) He acknowledged that he had no record of any injury occurring at that site, and that the only other person who complained about this matter was an ESU employee named Rick who is disabled and was having difficulty getting by on the sidewalk due to the activity. Phillips acknowledged that there is a provision in the ordinance that prohibits blocking a sidewalk.
Officer Victor Ruiz (Officer Ruiz) of the ESU Police Department testified for the Commonwealth, stating that Normal Street is the main road bisecting the campus and houses four or five of the campus's main buildings. He stated that the commuter parking lots are located on the south side of the street requiring commuters to cross Normal Street. He testified that 3,000 to 4,000 students walk in the area between 8:00 a.m. to 4:00 p.m. and that three stop signs and four traffic bumps have been installed along Normal Street to slow traffic. He explained that the book buy-back usually occurs during the last week of school terms for a five-day period. He stated that he is familiar with Champiney's employer, Penn Text Books, and that he asked Penn Text Books to remove barriers that had been placed on the sidewalk several times because they impeded traffic on the sidewalk and pushed pedestrians into the street. Officer Ruiz acknowledged that no one has ever been injured at that location during the book buy-back.
Champiney testified in his own defense, admitted to engaging in the activities for which he was cited under Section 150-23.1, and identified the Penn Text Books van depicted in the Commonwealth Exhibit 7 photographs. He testified that he started as a buyer of textbooks for Penn Text Books in 2008 and that he obtained a peddler's license from the Borough to buy books from the van. He stated that he was an independent contractor working for Penn Text Books and that he used the van that was rented by a third party to transact business. He testified that when he started he would not receive a citation as long as he had the peddler's license and paid the meter. He stated that he removed signs when Officer Ruiz asked him to, he never had a problem with someone not getting by on the sidewalk, and there has never been a problem with somebody being injured. He noted that the citation he received does not include the Section 150-27.B. provisions relating to the payment of a ticket within 72 hours at a reduced fine and costs. He acknowledged that he knew that this was not the first time that Penn Text Books had been cited for being there.
Marshall Lieberman, one of Penn Text Books' owners, testified for Champiney, stating that the company owns a warehouse in Downington, Chester County, and that it buys back books at over 150 universities around the country. He stated that he conducts business over interstate lines using FedEx, selling textbooks online, to bookstores including two of his own, and to national wholesalers. He testified that he has an established presence at approximately 250 universities across the country and that he has never had any safety concerns. He stated that Penn Text Books began textbook buy-backs at ESU in 2005 or 2006 in the same vicinity of Normal Street, and that all he needed prior to the enactment of Section 150-23.1 was to obtain a peddler's license from the Borough. He identified the Penn Text Books van depicted in the Commonwealth Exhibit 7 photographs. He testified that DeLarco was the director of ESU's Bookstore and that he was a competitor and that DeLarco was the president of Borough Council at the time that this trouble started. He stated that the citation, if it was enforced, would have a heavy impact on his business.
Champiney argued, among other things, that: Section 150-23.1 violates the dormant Commerce Clause of the United States Constitution; Section 150-23.1 is extremely vague; and the penalty provision contained in Section 150-27 is contradictory. (See R.R. at 97a-103a.) The trial court rejected Champiney's constitutional challenges, finding a proper exercise of the Borough's police powers, and convicted Champiney of violating Code Section 150-27. However, the trial court did not impose any penalty because of the contradictory fine and costs provisions of Section 150-27.B. Champiney then filed the instant appeal.
As this Court has explained:
[T]he Commerce Clause of the U.S. Constitution enumerates to "the Congress [the] Power ... to regulate Commerce ... among the several States." U.S. Const. art. I, §8, cl. 3. The U.S. Supreme Court interprets the Commerce Clause as containing "an implicit or 'dormant' limitation on the authority of the States to enact legislation affecting interstate commerce." The dormant Commerce Clause "prohibits economic protectionism-that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors." In sum, since Congress possesses plenary power to regulate commerce among the states, states are prohibited from passing laws that discriminate against interstate commerce.
Champiney also asserted, as he does in this appeal, that he should have been issued a parking ticket rather than a citation based on the penalty scheme of Section 150-27. However, Pa. R.Crim. P. 401(A) specifically states that "[p]olitical subdivisions may use parking tickets to inform defendants of parking violations and to offer defendants an opportunity to avoid criminal proceedings by paying an amount specified on the ticket within the time specified on the ticket." (emphasis added). Thus, the Borough was not required to proceed by issuing a ticket because the foregoing language is permissive and not mandatory. Moreover, Pa. R.Crim. P. 401(B) specifically contemplates instances such as the instant case in which the proceedings are initiated by a citation rather than by a ticket. See id. ("When a parking ticket has not been used, a criminal proceeding in a summary case charging a parking violation shall be instituted by a law enforcement officer issuing a citation either by handing it to a defendant or by placing it on a vehicle windshield.") (emphasis added).
The trial court explained its reasoning as follows:
THE COURT: All right. Having heard the testimony, I find that there has not been selective enforcement. There's no evidence here of a suspect class. I find that there has been a proper police purpose in the enactment of the ordinance in the sense that the Borough is confronted with a situation where someone is selling things from a vehicle , and just from the watching the video you can see that it's attracting students from many different directions. It's certainly possible that that's going to create hazards for pedestrians and for motorists. It's very conceivable to me that a student could quickly step out between two parked vehicles and put himself or herself at risk, as well as the traveling public. I see that as a proper police purpose. Yes, there is some effect on commerce here, but I don't see that this rises to a constitutional infringement, so I'm not going to dismiss the charges on the constitutional argument....(R.R. at 106a-107a.)
This Court's scope of review of convictions for summary offenses is limited to determining whether constitutional rights had been violated or whether the trial court abused its discretion or committed error of law. Commonwealth v. Geatti, 35 A.3d 798, 799 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, 40 A.3d 1237 (2012).
A.
In this appeal, Champiney first claims that his conviction should be overturned because the penalty provisions of Section 150-27 are contradictory and unenforceable. We do not agree. Section 150-27.A. sets forth the fines to be imposed for parking violations in the Borough, imposing a $4.00 fine for an expired meter in the Downtown District, a $15.00 fine for eight other parking offenses, a $50.00 fine for violations relating to parking in handicapped spaces and fire lanes, and a $250.00 fine for a violation of Section 150-23.1. (R.R. at 126a.) Section 150-27.B. provides that a ticket must notify the violator that the fine for a parking offense will increase to $30.00 plus court costs if it is not paid within 72 hours; that the fine for violations related to handicapped spaces remains $50.00; and that all unresolved offenses are summary in nature and could result in a $600.00 fine or a 30-day period of imprisonment. (Id. at 126a-127a.) While, in the interest of consistency, the Borough Council should have also stated in Section 150-27.B. that the fines for fire lane and Section 150-23.1 violations remain $50.00 and $250.00, respectively, this omission does not invalidate the provisions of Section 150-23.1 setting forth the substantive violation, and the Judicial Code specifically empowers the trial court to adjudicate Champiney guilty of the violation and to impose no further penalty. The Statutory Construction Act, 1 Pa. C.S. §1925, requires that courts treat all statutes as severable and our Supreme Court has held that the principles of the Statutory Construction Act are to be followed when construing local ordinances. Patricca v. Zoning Board of Adjustment of the City of Pittsburgh, 527 Pa. 267, 274, 590 A.2d 744, 748 (1991).
Champiney also claims that his conviction violates his equal protection rights under the United States and Pennsylvania Constitutions; his commercial speech rights under the First Amendment to the United States Constitution; and the ordinance violates the "single subject" requirement for municipal ordinances. However, as noted by the trial court, Champiney did not raise or develop these claims before the trial court so they were not addressed by that court and they will not be addressed for the first time by this Court in this appeal. See Commonwealth v. Parente, 956 A.2d 1065, 1069 n.10 (Pa. Cmwlth. 2008) ("Parente raises a number of additional constitutional claims relating to the enforcement of the Ordinance. However, Parente did not raise any of these additional claims in the trial court prior to filing the instant notice of appeal. As a result, all of these claims have been waived for purposes of appeal. See Pa. R.A.P. 302(a) ('[I]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.'); Commonwealth v. Hawkins, [441 A.2d 1308, 1312 n. 6 (Pa. Super. 1982)] ('[B]ecause issues, even those of a constitutional dimension, cannot be raised for the first time on appeal, his contentions have been waived.') (citations omitted).").
B.
Champiney next claims that his conviction should be overturned because Section 150-23.1 violates the dormant Commerce Clause of the United States Constitution. He argues, alternatively, that the ordinance is per se invalid because it is an interference with interstate commerce in both purpose and effect, or that it is invalid because its indirect burden on commerce is clearly excessive when balanced against the benefit received because it effectively outlaws peddling and itinerant vendors in the Borough.
In general, an ordinance is presumed to be constitutional, and a heavy burden is placed on those seeking to prove its unconstitutionality. Parente, 956 A.2d at 1070. The challenger must prove that the ordinance is clearly, palpably and plainly unconstitutional. Judd v. Zoning Hearing Board of Middletown Township, 460 A.2d 404, 406 (Pa. Cmwlth. 1983).
The dormant Commerce Clause prevents a state from regulating business in such a way as to provide an unfair advantage to its own residents at the expense of out-of-state residents. Empire Sanitary Landfill, Inc. v. Department of Environmental Resources, 546 Pa. 315, 333, 684 A.2d 1047, 1055 (1996). Two tests are used in this type of Commerce Clause analysis: the strict scrutiny and the balancing tests. Id. The strict scrutiny test applies where an ordinance facially discriminates against interstate commerce by creating "local economic protectionism." Kerbeck Cadillac Pontiac, Inc. v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 854 A.2d 663, 670 (Pa. Cmwlth. 2004). The balancing test applies where an ordinance does not discriminate against interstate commerce in either purpose or effect, and it will be upheld unless the burden on interstate commerce is "clearly excessive in relation to the putative local benefits." Id. at 672 (quoting Empire Sanitary Landfill, Inc., 546 Pa. at 334, 684 A.2d at 1056, quoting the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). When reviewing such challenges, courts must inquire into: (1) whether the challenged ordinance regulates evenhandedly with only "incidental" effects on interstate commerce or discriminates either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote the local purpose as well without discriminating against interstate commerce. Id. at 672-73.
As noted above, Section 150-23.1 states that "[n]o person shall offer for sale or sell, or offer to buy or buy any goods, wares or merchandise, from a vehicle parked upon any street or in a public parking lot in a metered or unmetered parking space," and that "Borough Council only may waive enforcement of this provision for Borough-sponsored or -approved community events." Thus, the strict scrutiny test is inapplicable because, by its terms, Section 150-23.1 is not facially discriminatory. Section 150-23.1 places both in-state and out-of-state merchants on the same footing by imposing a total prohibition of purchases or sales of goods, wares or merchandise from all parked vehicles, and it does not limit the application of the sole waiver for Borough-sponsored or -approved community events, only to in-state merchants nor does it prohibit participation in such events by out-of-state merchants. See Kerbeck Cadillac Pontiac, Inc., 854 A.2d at 672 ("So, Section 32 of the [Board of Vehicles Act (Act), Act of December 22, 1983, P.L. 306, added by Act of July 3, 1987, P.L. 192, as amended, 63 P.S. §818.32], places out-of-state new vehicle dealers on the same footing as in-state new vehicle dealers, outside of the 'relevant market area,' and subjects all new vehicle dealers to the same restrictions. Because in-state new vehicle dealers are equally as burdened as out-of-state new vehicle dealers, the Act does not facially discriminate against interstate commerce and the strict scrutiny test is inapplicable.").
With respect to the balancing test, there is no question that the Borough has the authority to regulate parking and transient vendors within its borders. The Borough presented ample competent evidence that Section 150-23.1 was enacted to address safety concerns due to the heavy vehicle and pedestrian traffic areas on Normal Street and the unsafe conditions created by the merchants conducting business from vehicles parked at the meters on that street and not for any discriminatory purpose or effect. (See R.R. at 37a-41a, 59a-61a, 63a-67a, 209a, 214a-232a, 234a.)
The Borough is empowered to regulate conduct with respect to parking in public places pursuant to Section 1202(12) of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §46202(12), which states in part that it has the power "[t]o regulate the streets, ... public squares, common grounds, sidewalks, curbs, ...." Section 6109(a)(1) of the Vehicle Code, 75 Pa. C.S. §6109(a)(1), also empowers the Borough to regulate parking, stating, "The provisions of this title shall not be deemed to prevent ... local authorities on streets or highways within their physical boundaries from the reasonable exercise of their police powers. The following are presumed to be reasonable exercises of police power: ... regulating or prohibiting stopping, standing or parking."
The Borough is also empowered to regulate transient merchants under Section 2901(a) of the Borough Code, 53 P.S. §47901(a). See also Section 1202(20)(i)(C)(VII) of the Borough Code, 53 P.S. §46202(20)(i)(C)(VII) ("The powers of the borough shall be vested in the borough council.... The specific powers of the borough shall include ... [i]n addition to licensing in accordance with Article XXIX, council may prohibit, license and regulate by ordinance ... [m]arket places. Council may ... levy and collect a suitable license fee from every person who may be authorized by council to occupy any portion of market places, or any portion of the streets or sidewalks for temporary market purposes.").
Contrary to Champiney's assertion, Section 150-23.1 does not effectively outlaw peddling and itinerant vendors in the Borough. Rather, Section 150-23.1 merely prohibits such conduct from parked vehicles on the Borough's streets or from its metered or unmetered parking spaces in parking lots. Moreover, while this prohibition may have an incidental effect on interstate commerce, it clearly serves the legitimate local purpose of preventing the safety concerns posed by merchants conducting business from such parked vehicles and this incidental effect is small in comparison to such a valid safety benefit. See Kerbeck Cadillac Pontiac, Inc., 854 A.2d at 673 ("As noted, Section 32 of the Act ... precludes in-state new vehicle dealers and out-of-state new vehicle dealers from participating in shows or exhibitions outside the dealership territory. This Court recognizes that the General Assembly enacted this prohibition for the legitimate purpose of protecting the Pennsylvania consumer. Specifically, the Act in general protects the Pennsylvania consumer from fraud and deception in the purchase of a new vehicle and assures the consumer that the new vehicle dealer must provide fair service and reliable products. Because the Act serves a legitimate local purpose, the effect on interstate commerce is 'incidental' and the burden is small in comparison to the benefit to Pennsylvania consumers.") (footnote omitted).
C.
Finally, Champiney argues that his conviction should be overturned because Section 150-23.1 is unconstitutionally vague. Champiney asserts that Section 150-23.1 denies due process because it does not give fair notice to persons of ordinary intelligence that their contemplated activity may be unlawful and it fails to provide reasonable enforcement guidelines to law enforcement officials thereby inviting arbitrary or discriminatory enforcement.
As this Court has explained:
[A] statute is unconstitutionally vague when it "fails to provide reasonable notice of the conduct to the person charged with violating its provisions." Legislation violates vagueness requirements regarding adequacy of notice of prohibited conduct when its terms are so indefinite that men of reasonable intelligence are left to guess at its meaning and differ as to its application. The criteria used in evaluating statutory language for vagueness is that of "'flexibility and reasonable breadth' rather than 'meticulous specificity' or 'mathematical certainty.'" Moreover, the specificity of a statute must be weighed against the conduct in which the party challenging it has engaged.Golden Triangle News, Inc. v. Corbett, 689 A.2d 974, 984 (Pa. Cmwlth. 1997) (citations omitted).
It is clear that the provisions of Section 150-23.1 are not unconstitutionally vague in light of the foregoing standards. The bulk of Champiney's void for vagueness argument is based on the assertion that Section 150-23.1 seeks to criminalize non-nuisance commercial activity that has no relationship to parking and that it permits Borough Council unfettered discretion regarding the waiver of its application. However, the ordinance unambiguously provides notice to all that buying or selling goods, wares or merchandise from a vehicle parked at a metered or unmetered space in a parking lot or on a Borough street is prohibited. Thus, the activities proscribed by Section 150-23.1 are adequately defined and Champiney admitted that he engaged in such prohibited conduct. Moreover, Phillips specifically testified as to the types of Borough-sponsored or -approved community events that would fall within the waiver provisions. (See R.R. at 31a-32a.)
Finally, Champiney relies on Officer Indemaur's testimony to support his claim that Section 150-23.1 is selectively enforced because Officer Indemaur purportedly testified that this was the only time that he had issued a citation for this offense. However, in this testimony, Officer Indemaur merely stated that he had never issued a parking ticket for a violation of Section 150-23.1 and that, in this instance, he had issued Champiney a citation for such violation. (See id. at 15a-16a.) In this testimony, Officer Indemaur did not state, as Champiney contends, that this was the only time that he has ever issued a citation for a violation of the ordinance. --------
Accordingly, the judgment of sentence is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 11th day of July, 2013, the judgment of sentence of the Court of Common Pleas of Monroe County is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Section 150-27.A. of the Ordinance provides that, upon conviction, the sentence to be imposed for a violation of Section 150-23.1 is a $250.00 fine. In addition, Section 150-27.B. of the Ordinance provides, in relevant part that: "All such offenses left unresolved are summary in nature, and violators shall, upon conviction for each and every violation, be sentenced to pay a fine of not more than $600 or imprisonment for not more than 30 days, or both."
Commonwealth v. TAP Pharmaceutical Products, Inc., 36 A.3d 1197, 1233 (Pa. Cmwlth. 2011) (citations omitted).