R. J. Thompson v. Comwlth of PA (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald J. Thompson, Appellant v. Commonwealth of Pennsylvania BEFORE: : : : : : : No. 1037 C.D. 2007 SUBMITTED: November 9, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 25, 2008 Ronald J. Thompson appeals from an order of the Court of Common Pleas of Westmoreland County (common pleas), which convicted him of violating the Municipality of Murraysville s Ordinance No. 526-99, relating to Garbage, Rubbish and Refuse, imposed upon him a fine of $600.00 plus costs, and directed him to remove pallets situated on his property, within thirty days from the date of the order. After affording him notice, on September 5, 2006, a Murraysville Code Enforcement Officer issued a non-traffic citation/summons against Thompson for failing to remove pallets from his property in violation of Ordinance No. 526-99, § 3.1.1 Thompson s assertion is that these pallets form a fence 1 This section provides, in relevant part: (Footnote continued on next page ¦) bordering his property. Nevertheless, a magisterial district justice found Thompson guilty as charged in a summary proceeding on October 23, 2006. Thereafter, Thompson timely appealed to common pleas, which, on de novo review, again found him guilty and sentenced him to pay fines and costs as recounted above. On appeal here, Thompson raises only one question for our review, viz., whether the municipality presented sufficient evidence to prove beyond a reasonable doubt that the pallet fence he erected on his private property amounted to garbage or rubbish or any other materials that were prohibited by the relevant section of the ordinance on which his conviction was based.2 Essentially, Thompson argues that he did not merely accumulate pallets on his private property in contravention of the ordinance; rather, his colorful wooden pallet fence was constructed by a crew of five men pursuant to a certified engineering plan.3 Moreover, Thompson contends that common pleas _____________________________ (continued ¦) It shall be unlawful for any person to accumulate or permit to accumulate upon any public or private property within the Municipality, any garbage, rubbish, bulky waste, waste material or debris of any kind, junk, scrapped or wrecked motor vehicles and/or trailers, flammable articles and/or stored vehicles without a current inspection sticker and current license and/or any other municipal or residual solid waste except in accordance with the provisions of this Ordinance, any Department rules and regulations adopted pursuant to Act 97 and any Health Department Rules and Regulations. 2 Our review of common pleas determination of an appeal of a summary conviction is limited to a determination of whether an error of law has been committed or whether the court s findings are supported by competent evidence. Cmwlth. v. DeLoach (Husband and Wife), 714 A.2d 483 (Pa. Cmwlth. 1998). 3 Thompson testified that, after discussing the matter with his children, he painted the fence colors affiliated with Halloween and the Pittsburgh Steelers, going to Ace Hardware and buying all their rejected paints. Notes of Testimony, March 28, 2007 at 52. Thompson further (Footnote continued on next page ¦) 2 should have permitted his counsel to reopen his defense and introduce new photographs of the fence after its repair. Thompson asserts that, because garbage, rubbish or debris cannot be repaired, these updated photographs would have served to rebut the municipality s argument that the pallet fence was violative of the relevant ordinance section. He further asserts that he was charged under an inappropriate municipal ordinance. Rubbish is defined in Ordinance No. 526-99, § 2 as all nonputrescible municipal waste except garbage and other decomposable matter. This category includes but is not limited to ashes, bedding, cardboard, cans, crockery, glass, paper, wood and yard cleanings. (Emphasis added). Further, municipal waste includes solid material resulting from the operation of residential, municipal, commercial or institutional establishments[.] Id. The word accumulate has been defined as to gather or pile up esp. little by little: amass ¦ to increase gradually in quantity or number[.] Merriam-Webster s Collegiate Dictionary 8 (10th ed. 2001). Having reviewed the record as a whole, we are satisfied that the pallet fence erected upon Thompson s land constituted the accumulation of rubbish on his property in express defiance of Ordinance No. 526-99, § 3.1. First, we note that Thompson acknowledged using approximately 230 pallets to erect his structure. Notes of Testimony, March 28, 2007 at 60. He stated that some of the pallets he used were already on his property; others he brought in from job sites. Id. Further, Tom McGuire, the Murraysville Code Enforcement Officer, testified _____________________________ (continued ¦) explained: I figured that if I put the fence up, I could keep the neighbors out, I could keep the dogs in somewhat, keep them on their own property. I thought it would be sensational. Id. at 58. 3 that the pallets, which are made of wood, are not in a safe condition. Id. at 31, 42. He reasoned that their condition was unsafe [b]ecause of the broken pallets, because of the way they were placed on the property, the way they are being held up and tied together with rebar and just wire, along with having barbed wire involved with them. Id. at 32. McGuire also testified that, in his opinion, the pallets would not be effective in restraining Thompson s dogs and keeping them off the neighbors property, which was one reason Thompson expressed for erecting the pallet fence. Id. at 27-28. McGuire did not believe the fence would be effective in this regard due to [t]he fact that the pallets are broken, and they do not completely surround either property. Id. at 28. In this vein, common pleas explained upon finding Thompson guilty: It is not a fence. It is a bunch of pallets, in the form in which I m able to see them, in a great deal of disrepair, even as pallets, much less as fencing material. These Exhibits 2 through 22 [photographs admitted into evidence] show me various pallets in various conditions of disrepair, of, in some instances, long-term exposure to the elements, broken, cracked, with jagged edges, with some pieces missing, erected in a haphazard manner. Id. at 63. Moreover, our review of the photographs reviewed by common pleas satisfies us that the court s guilty verdict was substantially supported. Given the cracked, jagged, thoroughly unkempt, and potentially dangerous state of the wooden pallets as reflected by these photographs, together with the testimony before the court, there is no indication that common pleas erred in finding Thompson guilty of the summary offense as charged. We reach this conclusion even if the rubbish at issue here was accumulated and thereafter cobbled together in makeshift fence form. Furthermore, the fact that common pleas failed to allow 4 Thompson s counsel to introduce photographs showing the fence in a better repaired state is irrelevant. We agree with common pleas that the issue is the state of the rubbish on the date of the citation. Because we find that there is ample justification for Thompson s conviction under the ordinance at issue here, we also need not consider his argument that the reasonable doubt standard applies because he was generally charged under the garbage ordinance when he should more specifically have been charged under the municipality s ordinance concerning property maintenance and fences. Order affirmed. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald J. Thompson, Appellant v. Commonwealth of Pennsylvania : : : : : : No. 1037 C.D. 2007 ORDER AND NOW, this 25th day of January, 2008, the order of the Court of Common Pleas of Westmoreland County in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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