          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania            :
                                        :
                   v.                   :   No. 328 C.D. 2015
                                        :   SUBMITTED: June 5, 2015
William H. Birk,                        :
                         Appellant      :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                            FILED: November 10, 2015


            Appellant, William H. Birk, proceeding pro se, appeals from the
decision of the Court of Common Pleas of Northampton County which denied his
summary appeal of his conviction for violating Chapter 367, Section 9 of the Code
of the Borough of Hellertown. We reverse.
            On March 28, 2014, Corporal Jeffrey Johnston, a police officer with
the Borough, observed Appellant removing items from a dumpster located behind
a Citgo gas station located at 685 Main Street, Hellertown, PA, 18055. Corporal
Johnson issued a non-traffic citation/summons to Appellant, citing a violation of
Chapter 367, Section 9 of the Hellertown Code. The citation stated that Appellant
“did collect waste, without being authorized by the Borough of Hellertown.”
             The magistrate judge found Appellant guilty and sentenced him to a
$100 fine and costs.      Appellant appealed to common pleas.           Common pleas
conducted a de novo hearing at which Corporal Johnson testified and the district
attorney submitted into evidence photos taken of Appellant and his truck on March
28. Appellant, representing himself, also testified. Appellant testified that he does
not take items from recycling bins, but does take any recyclables that have been
improperly disposed of in dumpsters. Notes of Testimony (N.T.) at 16.                He
sometimes collects newspapers to put in Abitibi containers at his Church and, if he
finds clothes he gives them to Goodwill. Id. Appellant stated that he does not
conduct a “regular hauling business.” N.T. at 11, 16. Appellant testified that he
occasionally keeps things for himself, trades items, or gives items to his son to take
to auction. N.T. at 17. On cross-examination, Appellant testified that he has been
retired for over 30 years and receives a pension, but not social security. N.T. at 17-
18. He denied that he collects items from the trash to supplement his pension. Id.
at 18. He stated that the majority of the items he obtains from dumpster-diving
goes to local charitable and veterans organizations. Id. at 18-19.
             Common pleas found Appellant guilty of violating Chapter 267,
Section 9 of the Hellertown Code. Appellant filed a notice of appeal with the
Superior Court.1 Common pleas filed an opinion pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a). Common pleas opined that because Appellant had
admitted to collecting recyclables around the Borough, he had thereby deprived the
Borough of those proceeds in violation of the Chapter 267, Section 9. Common


    1
         By order dated March 25, 2015, the Superior Court transferred this matter to the
Commonwealth Court pursuant to Section 762(a)(4) of the Judicial Code, 42 Pa. C.S. § 762
(a)(4), and Pennsylvania Rule of Appellate Procedure 751(a), Pa. R.A.P. 751(a).



                                           2
pleas rejected Appellant’s contention that he was not engaged in business, because
he admitted that he derives some profit from his collection of items.
              As an initial matter, we shall address the Commonwealth’s argument
that all of Appellant’s arguments have been waived due to his failure to comply
with the requirements of Pennsylvania Rule of Appellate Procedure 2119, Pa.
R.A.P. 2119, which requires litigants to adequately raise and develop issues in
their appellate papers. We acknowledge that the rules pertaining to the form and
content of appellate briefs are mandatory. Lal v. Dep't of Transp., 755 A.2d 48
(Pa. Cmwlth. 2000). The rules “apply to lawyers and non-lawyers alike.” Busch v.
Dep’t of Transp., Bureau of Driver Licensing, 900 A.2d 992, 996 (Pa. Cmwlth.
2006). However, when it comes to compliance with the Pennsylvania Rules of
Appellate Procedure, this Court is generally inclined to construe pro se filings
liberally. Richardson v. Pa. Ins. Dep’t, 54 A.3d 420, 425 (Pa. Cmwlth. 2012).
This Court may waive even egregious violations of the appellate rules when the
errors do not substantially interfere with our review of the appellate record. Id. at
426. This Court has deemed meaningful review of the merits possible when it
could discern a pro se appellant’s argument, or where the interests of justice
require it. Id.
              Appellant’s brief clearly does not comply with Rule 2119.
Nevertheless, the Court was easily able to discern Appellant’s arguments.
Although Appellant raises numerous issues in his notice of appeal and in his brief,
the most relevant argument he raises is that common pleas erred because it
incorrectly interpreted the ordinance. Appellant argues that the ordinance did not
apply to his activities because he was not engaged in a regular hauling business.




                                         3
Having discerned the thrust of Appellant’s argument, we conclude that he has not
waived his arguments and meaningful review is possible.
             Article I, Chapter 367 of the Hellertown Code governs the storage and
disposal of municipal waste in the Borough. Chapter 367, Section 9 provides:

             It shall be unlawful for any person, other than such
             persons as are duly authorized by the Borough of
             Hellertown, to collect and transport solid waste of any
             nature as a regular hauling business within or from the
             Borough of Hellertown. Authorization to engage in such
             a hauling business shall be given by the Borough of
             Hellertown. [Emphasis added.]

The Code’s definition of “municipal waste,” which includes “solid waste,” does
not include recyclables which are addressed by Article II of Chapter 367.
Hellertown Code § 367-1.       Section 367-1 of the Code defines “regular” as
“[o]ccuring with a frequency of not less than three times within a calendar
month.” Black’s Law Dictionary 226 (9th Ed. 2009) defines “business” as: “a
commercial enterprise carried on for profit; a particular occupation or employment
habitually engaged in for livelihood or gain.”
             The Commonwealth failed to demonstrate that Appellant’s dumpster-
diving activities constituted a regular hauling business. The citation was issued
upon a single instance of Corporal Johnson observing Appellant collecting items,
such as recyclable cans, from a dumpster. While Appellant, who is a resident of
Bethlehem, acknowledges that he collects items from the trash and the side of the
road, there is no evidence of record that this occurs in the Borough at least three
times a month. Further, while Appellant testified that he occasionally sells items,
he clearly and distinctly stated that his regular practice is to donate the items he
collects to charities and that his activities do not supplement his pension. Thus,

                                         4
the Commonwealth failed to demonstrate that Appellant’s activities constitute a
business for profit.
             While it is clear that the Borough wished to regulate the business of
waste collection and hauling, Appellant has found a gap in the Code as it does not
clearly prohibit his occasional trash-picking activity.    Accordingly, common
pleas’ order is reversed and the citation is dismissed.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge




                                          5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania           :
                                       :
                   v.                  :     No. 328 C.D. 2015
                                       :
William H. Birk,                       :
                        Appellant      :


                                    ORDER


            AND NOW, this 10th day of November, 2015, the order of the Court
of Common Pleas of Northampton County is hereby REVERSED and the citation
is DISMISSED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
