Opinion
No. 1324 C.D. 2011
06-27-2012
Commonwealth of Pennsylvania v. Richard Cicci, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Richard Cicci (Cicci) appeals the order of the Court of Common Pleas of Washington County (trial court) which found Cicci guilty of four summary offenses involving his Stormwater Assessment and sentenced him to pay the costs of prosecution plus restitution in the amount of $330.00.
On or about September 14, 2006, the Borough of Charleroi (Borough) enacted Ordinance No. 976 (Ordinance) which imposed an assessment for municipal improvements to the Borough for the construction and installation of a new stormwater collection system and for related improvements to the sanitary sewer system and the Borough's streets, sidewalks, and curbs. Cicci and his wife, Georgia Cicci, owned property in the Borough. When Cicci did not pay, he was convicted of four summary offenses involving the delinquent assessment and fined $300.00 plus costs of $51.00, plus restitution of $80.50 before a district justice. Cicci appealed the convictions to the trial court.
The trial court originally was scheduled to hear the matter in December 2010. The trial court continued the case because Cicci filed an equitable action to enjoin the enforcement of the Ordinance which was assigned to another judge on the Court of Common Pleas of Washington County.
On April 21, 2011, the case went to trial. The parties informed the trial court that the equitable action was undecided. Matthew A. Keranko (Attorney Keranko), Cicci's counsel, informed the trial court that Cicci's position in the equitable action was that "the enforcement of the Ordinance is illegal. The injunction that we asked, that we are asking the Court is to enjoin the Borough from enforcing that Ordinance as it stands as a criminal element." Notes of Testimony, April 21, 2011, (N.T.) at 4; Supplemental Reproduced Record (S.R.R.) at 4.
The Borough counsel (Solicitor) argued that the Ordinance was valid and the citations were valid under the Borough Code. The Solicitor explained, "There is a section of the Borough Code that says, any violation of any provision of the Borough Ordinance is subject to summary citation. And it has been the Borough's position all along we can do it through this proceeding." N.T. at 6; S.R.R. at 6.
Attorney Keranko admitted that there was "no dispute" that Cicci failed to pay the assessment. N.T. at 6; S.R.R. at 6. When the trial court inquired about Cicci's defense to the citations, Attorney Keranko responded, "The constitutionality of the Ordinance is a defense to the actual Ordinance itself." N.T. at 7; S.R.R. at 7. The trial court stated that it was not going to hear the constitutionality argument. N.T. at 7; S.R.R. at 7. Attorney Keranko argued that it was unclear whether the money the Borough borrowed for the stormwater improvements was repaid. N.T. at 8; S.R.R. at 8. The trial court ordered that Cicci pay $330.00 for the four citations plus costs. N.T. at 9; S.R.R. at 9.
The trial court determined that it would be inappropriate to rule on the constitutionality of the Ordinance while the issue was being litigated in front of another judge in the same county, such a review would interrupt the litigation before another judge, and could lead to inconsistent holdings within the same county. The trial court determined that there was no need to take testimony because Cicci's counsel admitted that Cicci did not pay the assessment, which was the only factual issue before the trial court. Trial Court Opinion, July 22, 2011, at 4-5. Reproduced Record (R.R.) at 12-13.
Cicci contends that the trial court erred as a matter of law and abused its discretion when it failed to properly address the validity and constitutionality of the Ordinance, when it failed to take testimony regarding the constitutionality of the Ordinance, and when it found Cicci guilty of the summary offenses without taking testimony.
This Court's review of a trial court's determination on appeal from a summary conviction is limited to a determination of whether there was an error of law or whether the findings of fact are not supported by substantial evidence. Commonwealth v. A.D.B., 752 A.2d 438 (Pa. Cmwlth. 2000).
Cicci initially contends that the trial court erred as a matter of law and abused its discretion when it failed to address his defense that the Ordinance was invalid and unconstitutional.
The trial court explained why it chose not to address the constitutionality of the Ordinance:
The grounds for appeal relating to the constitutionality of the ordinance are without merit because the issue before this Court was merely whether or not there was a violation of the ordinance. This court was not in a position to rule on the constitutional issues which are pending before another Judge in this county.
While the coordinate jurisdiction rule would not apply in this case, the rule provides some guidance as to the appropriate disposition of this matter. Under that rule, 'judges of coordinate jurisdiction sitting in the same case should not overrule each others' decisions. . . . The underlying considerations giving rise to this rule as the Supreme Court of Pennsylvania has stated include not only 'the goal of judicial economy' but also '(1) to protect the settled expectations of the parties; (2) to insure uniformity of decisions; (3) to maintain consistency during the course of a single case; (4) to effectuate the proper and streamlined administration of justice; and (5) to bring litigation to an end.'. . .
The facts of this case do not fit within the coordinate jurisdiction rule. There has been no prior ruling on the constitutionality of the ordinance. Further, any such ruling would be in a separate case and not in the case currently before this Court. However, due to the posture of this case the policy goals that underlie the coordinate jurisdiction rule can serve as a guide to this Court.
As applied to this case, the policy goals lead to the determination that it would be inappropriate for this Court to rule on the constitutionality of the ordinance
while the issue is being litigated in front of another judge in this county. Defendant [Cicci] chose to bring a separate action for an injunction to prevent the enforcement of the statute. That being the case, it would be improper for this Court to rule on the constitutional issues that comprise the argument for the injunction. . . . Ruling otherwise would interrupt the litigation before another judge, could lead to inconsistent rulings within the same county, and would differ from the current expectations of the parties as to where the respective issues are being litigated. (Citations omitted).Trial Court Opinion, July 22, 2011, at 3-4.
This Court does not agree. First, Cicci filed the equitable action to enjoin the enforcement of the Ordinance on the ground that it was unconstitutional. There is nothing in the record to indicate that any action or inaction by Cicci delayed the resolution of the equitable action. Second, Cicci was cited in a quasi-criminal action in the present matter. It was not his choice to be cited for his failure to pay the stormwater assessment. In fact, the reason he sought the injunction was to avoid paying the assessment. Third, as he was facing fines for the citations, Cicci should have been afforded the opportunity to raise his defenses. Apparently, his defense to the citations was that he did not have to pay them because the Ordinance itself was unconstitutional. The trial court did not permit Cicci to present evidence and develop these arguments. Fourth, while the trial court referred to the coordinate jurisdiction rule in its opinion, the trial court recognized that the rule did not apply. This Court believes that Cicci was entitled to present his constitutional arguments and any related evidence to the trial court.
The Borough argues that Cicci waived any constitutional arguments because he did not present them before the trial court. A review of the record reveals that the trial court did not permit Attorney Keranko to continue.
There is nothing in the record to indicate that Cicci raised the constitutional issues before the district justice. However, this Court held in Commonwealth v. Waltz, 749 A.2d 1058 (Pa.Cmwlth.), petition for allowance of appeal denied, 564 Pa. 716, 764 A.2d 1072 (2000), that a constitutional issue was not waived in summary criminal appeals for failure to raise it before a district justice.
This Court need not address Cicci's argument that the trial court erred as a matter of law and abused its discretion when it found Cicci guilty of the summary offenses without taking any testimony.
Accordingly, the order of the trial court is vacated and this case is remanded to the trial court to review the constitutional challenges raised by Cicci.
The Borough requests that this Court quash Cicci's appeal on the basis that Cicci submitted an incomplete reproduced record and failed to cite to places in the record that substantiated facts upon which the appeal relies. The Borough argues that Cicci failed to include three pages of the hearing transcript from the hearing before the trial court in the Reproduced Record. However, a review of the Reproduced Record, which is attached to the brief, contains the complete transcript. Further, this Court by order dated December 20, 2011, denied the Borough's motion to quash. The Borough attempts to raise the same arguments in its brief that it did in the motion to quash. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 27th day of June, 2012, the order of the Court of Common Pleas of Washington County in the above-captioned matter is vacated and this case is remanded to the Court of Common Pleas of Washington County in order for that Court to hear the constitutional arguments of Richard Cicci. Jurisdiction relinquished.
/s/_________
BERNARD L. McGINLEY, Judge