Opinion
No. 1349 C.D. 2012
11-07-2012
Ronald Peterson, Appellant v. Commonwealth of Pennsylvania
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Ronald Peterson appeals pro se from four decisions of the Court of Common Pleas of Cambria County finding him guilty of violating a local ordinance requiring him to connect his properties to Dale Borough's new sanitary sewer system and imposing fines and costs in connection therewith. After review, we affirm.
It appears that common pleas held one hearing to address Peterson's six summary appeals from six convictions for failing to connect six different properties to the new sewer system. Although common pleas found Peterson guilty in all six cases, Peterson has only challenged four of those adjudications on appeal. The cases were consolidated at some point before common pleas, which entered only one "Rule 1925 Opinion." The adjudications subject to appeal are being heard in this court as one matter.
According to counsel for the Commonwealth, Dale Borough constructed a new sanitary sewer system in order to separate storm water from sanitary water; the construction project was necessary because the existing system, which combined the two sources of waste water, caused sanitary sewer overflows and the release of untreated waste and sewage into the Commonwealth's waters. By ordinance (Ordinance 523), the Borough adopted rules and regulations pertaining to the connection, use and maintenance of the new sanitary sewer system. Those rules provided in pertinent part that:
The Commonwealth was represented by the Borough's solicitor.
All persons owning any occupied building now erected within the Borough's service area upon premises accessible to the public sanitary sewage system shall, at their own expense, make connection with the public sanitary sewage system in accordance with the applicable Connection Ordinance in effect in the Borough's service area if they are not presently so connected.Article II, Section 201 of Rules and Regulations (Rules); Notes of Testimony of May 31, 2011 (N.T.), Commonwealth's Exhibit 2. Importantly, the Rules define an "occupied building" as "any structure erected and intended for continuous or periodic habitation, occupancy or use by human beings or animals, which contains plumbing for utilizing water under pressure and from which structure, sanitary sewage and industrial wastes, or either thereof, is or may be discharged." Id. at Article I, Section 113. "Sanitary sewage" is defined in turn as "the normal water-carried household and toilet wastes from residences, business buildings, institutions, industrial and commercial establishments, exclusive of storm water runoff, surface water and [ground water]." Id. at Article I, Section 121. Pursuant to the Rules, once the new system was sufficiently complete, Borough property owners were given written notice directing them to connect to the sewer system. The failure to comply with the Ordinance or Rules constitutes a summary offense. Ordinance, Section 4.
It appears to be undisputed that Peterson owns six residential properties in Dale Borough and that he received notice directing him to connect those properties to the new sewer system by June, 2010. Peterson did not connect as directed within any of the time frames subsequently afforded to him and private criminal complaints were eventually filed before the local magisterial district judge. The magisterial district judge convicted Peterson in each case of failing to connect as required and imposed fines and costs. Those convictions were appealed and a de novo non-jury trial followed before common pleas.
Before common pleas, Peterson admitted that he received the notices requiring him to connect to the system. He argued, however, that some of his buildings were not "occupied" because the plumbing was stolen out of three of the buildings, he had turned in those water meters and he was using the buildings for storage only; he also stated that another building was "gutted" following a fire in 1991 and had been used for storage since that time as well. In support of his assertion that three of his buildings lacked plumbing, Peterson introduced copies of two unsigned, unauthenticated police incident reports, which were allegedly generated following his reports of the burglaries in January 2011. The incident report pertaining to 106 and 108 Cummins Street states that the investigating officers noticed that, "copper pipe that was installed in the house [at 106 Cummins Street] was missing, broken off" and "copper pipe was also missing from the basement [of 108 Cummins Street]." N.T., Defendant's Exhibit 4. With respect to 104 Cummins Street, the incident report states only that "[Mr. Peterson] entered the house and noticed that all the copper was removed." Id., Defendant's Exhibit 5. While the Commonwealth did not object to the admission of the incident reports, it did argue that they were insufficient to demonstrate that all of the plumbing, including the toilets, had been removed from the homes.
Specifically, the burglarized buildings are located at 104, 106 and 108 Cummins Street.
Peterson also argued that the elevation of the lateral line was improperly installed preventing him from connecting his property located at 104 Cummins Street to the new sewer system. The Commonwealth presented rebuttal evidence in the form of testimony from Keith Vasas, an employee of EADS Group; EADS Group serves as the Borough Engineer and served as the Project Engineer for the sewer construction project. According to Vasas (as well as another EAD employee), the lateral line was properly installed and Peterson could connect to it. During the trial, Peterson also stated that he was having various health problems during the period afforded for connection to the new system.
Finally, Peterson objected to the Borough solicitor's prosecuting the cases against him because the solicitor lacked timely approval from the District Attorney to prosecute in his stead. After hearing argument, common pleas overruled the objection.
Common pleas found Peterson guilty of failing to connect to the sewer system in all six cases and imposed fines and costs. In doing so, the court specifically rejected Peterson's claims that all the plumbing had been removed from the houses which were burglarized. Peterson appealed, and common pleas directed him to file a statement of matters complained of on appeal pursuant to Rule of Appellate Procedure 1925(b). In his subsequent opinion, the trial judge rejected Peterson's argument that he was not required to connect because the premises were being used for storage, not habitation, and that the plumbing had been stolen. Noting that the definition of "occupied building" differentiated between "habitation," "occupancy" and "use," the court concluded that "use" is not limited to habitation or occupancy activities. Rather, the court concluded that the term was more expansive and included storage activities, such that using a building for storage fell within the terms of the ordinance. The court also reiterated its finding that the properties were still partially plumbed for use as residences. Accordingly, common pleas concluded that since the properties were being "used" under the Rules and contained plumbing, Peterson was required to connect to the sewer system and his failure to do so violated Section 201 of the Rules. Peterson's appeal is now before this court.
The appeal was originally lodged with the Superior Court, which transferred the matter here.
We begin by noting that only two arguments have been properly preserved for appellate review: first, that common pleas erred in convicting Peterson based upon the possibility of future conduct or events, and second, that he did not violate the Ordinance and Rules because his buildings were used for storage, not habitation, they lacked plumbing and running water, and were unmetered. While the first argument is quite brief, very vague and difficult to decipher, we assume that Peterson is arguing that common pleas erred in concluding that he was required to connect to the new sewer system because his buildings might be used as residences in the future. We address both contentions together.
The remainder of the arguments have been waived because Peterson either failed to raise them before common pleas, see Rule of Appellate Procedure 302(a); McSwain v. Commonwealth, 520 A.2d 527 (Pa. Cmwlth. 1987), or in his statement of matters complained of on appeal, see Rule of Appellate Procedure 1925(b); Borough of Walnutport v. Dennis, 13 A.3d 541 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 34 A.3d 84 (2012); Commonwealth v. Holtzapfel, 895 A.2d 1284, 1287 (Pa. Cmwlth. 2006). Consequently, we will not address those issues.
A plain reading of the definition of "occupied building" leads to the conclusion that uninhabited residential buildings currently used for storage only are required to be connected to the new sewer system. In reaching this conclusion, we note that our construction of the Ordinance and Rules is guided by the rules of statutory construction found at 1 Pa. C.S. §§ 1901 - 1991. See Trigona v. Lender, 926 A.2d 1226, 1231 n.4 (Pa. Cmwlth. 2007). Accordingly, because the terms at issue are free from ambiguity, they must be given effect and the letter of the ordinance cannot be disregarded under the guise of pursuing its spirit. 1 Pa. C.S. § 1921(b). In addition, nontechnical words, such as those found in the definition of "occupied building" must be construed according to their common and approved usage. Id. at § 1903(a).
First, it is clear that Peterson's buildings, which are all residential structures, fall within the definition of an "occupied building" because the term includes "structures intended for continuous or periodic habitation . . . which contain plumbing for utilizing water under pressure . . . from which . . . sanitary sewage . . . may be discharged." The fact that the properties are not currently used for habitation is not dispositive because the rules apply to structures intended for specific purposes, including habitation. Peterson does not argue that his properties are not properly characterized as residential or designed for habitation, only that he is not using them in that capacity. Clearly the import of the definition is the intended purpose of a structure, not how individual property owners may choose to use it.
"Habitation" connotes a building that can be used as a dwelling or place of residence. See generally Dictonary.com definition of "habitation" at http://dictionary.reference.com/browse/habitation?s=t; Merriam-Webster online dictionary definition of "habitation" at http://www.merriam-webster.com/dictionary/habitation. --------
Notwithstanding the above conclusion, as defined, an "occupied building" also includes plumbed non-residential structures erected with the intended purpose of being "used" by people. As common pleas noted, "use" is a broader term and encompasses activities beyond habitation. "Use" as commonly understood and defined includes "the act of employing, using or putting into service," and the "enjoyment of property, land, etc., by occupation or by deriving revenue or other benefit from it." See Dictionary.com definition of "use" at http://dictionary.reference.com/browse/use?s=t. Here, Peterson does not argue (and no evidence was adduced) that the properties were not designed or erected for the purpose of being occupied, used, employed or put into service by people. Indeed, Peterson admittedly is currently putting the properties to productive use; he is using them for the storage of items. Thus, even in their current state of employment, the Rules require connection.
We also conclude that there is no merit to Peterson's contention that he is not required to connect to the new system because the plumbing has been stolen from the properties and three of the water meters have been removed. Common pleas, as fact-finder, discredited Peterson's testimony that all plumbing had been removed, finding instead that the buildings were still partially plumbed for use as residences. This finding is binding on appeal. Commonwealth v. Holtzapfel, 895 A.2d 1284, 1289 n.2 (Pa. Cmwlth. 2006).
Based on the foregoing, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of November, 2012, the orders of the Court of Common Pleas of Cambria County in the above-captioned matter are affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge