J-S76028-18

                                   2019 PA Super 76

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY MIKEC,                                :
                                               :
                       Appellant.              :   No. 670 WDA 2018


            Appeal from the Judgment of Sentence, April 13, 2018,
             in the Court of Common Pleas of Washington County,
             Criminal Division at No(s): CP-63-SA-0000300-2017.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

OPINION BY KUNSELMAN, J.:                               FILED MARCH 11, 2019

        Gary Mikec appeals from the judgment of sentence, ordering him to pay

a $500 fine, after a trial judge convicted him of a summary offense under the

Pennsylvania Sewage Facilities Act (“PaSFA”).1 Because the Commonwealth

previously tried and convicted him for this continuous violation of the PaSFA

in 2017, we vacate Mr. Mikec’s 2018 judgment of sentence and reverse his

conviction, as a matter of law.

        Mr. Mikec owns property in Chartiers Township, Washington County.

The Washington County Sewage Council received numerous complaints from

Chartiers Township officials regarding Mr. Mikec’s septic tank. The township

reported raw sewage oozing to the surface and running down the street. See

N.T., 5/1/18, at 7. Sewage Enforcement Officer Stanley Glumac therefore

investigated the property many times. See id. at 8. After several discussions
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1   35 P.S. §§ 750.1 – 750.20a.
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with Mr. Mikec produced no improvements to the situation, Officer Glumac

issued him an initial sewage-nuisance citation in 2016.

      As both parties have stipulated for purposes of this appeal:

         1.      On November 15, 2016, in the matter of
               Commonwealth v. Gary Mikec, 27201-NT-303-
               2016, Magisterial District Judge David W. Mark found
               Gary Mikec guilty of offense of Nuisances, 35 P.S. §
               750.14 . . .

         2.        On December 12, 2016, Gary Mikec filed a
               summary appeal to the finding of guilty on summary
               citation number R0593109-6 in Commonwealth v.
               Gary Mikec, 27201-NT-303-2016; this summary
               appeal was docketed at Washington County Docket
               Number CP-63-SA-430-2016.

         3.       On April 12, 2017, after a trial de novo . . . Senior
               Judge John C. Reed found [him] guilty of Nuisances,
               35 P.S. § 750.14 . . . and pursuant to 35 P.S. § 750.13
               imposed a fine of $500 plus costs.

Joint Stipulations of Counsel, 4/27/18, at 1-2. Mr. Mikec did not appeal this

first judgment of sentence.

      Following the 2016 citation, Officer Glumac drove by the property about

six times and always saw sewage leaking “down the street . . . from the area

where the septic tank is located . . . .” N.T., 5/1/18, at 10-11. Officer Glumac

testified that this was not “a one-time overflow,” but “a continuous overflow.”

Id. at 11. He therefore issued Mr. Mikec a second, sewage-nuisance citation

on July 13, 2017, three months after the first conviction and $500 fine.

      Magisterial District Judge Mark again convicted Mr. Mikec of a summary

offense, and Mr. Mikec again appealed to the court of common pleas. In a



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trial de novo before Senior Judge William Nalitz, Mr. Mikec argued that this

second citation and trial were improper. He argued the Commonwealth could

not fine him a second time for his “continuous violation,” because the General

Assembly had not mandated reoccurring criminal liability.

      The trial court rejected this argument and again convicted Mr. Mikec and

sentenced him to pay an additional $500 fine. This timely appeal followed.

      Mr. Mikec lists three issues in his brief. They are:

         I.       Did the lower court err as a matter of law in finding
                  Mikec guilty of 35 P.S. § 750.14 and sentencing him
                  under 35 P.S. § 750.13 on April 11, 2018 after he was
                  previously found guilty and sentenced for the same
                  violation on April 12, 2017?

         II.      Did the lower court err as a matter of law in finding
                  Mikec guilty of 35 P.S. § 750.14 and sentencing him
                  under 35 P.S. § 750.13 when the Superior Court in
                  Commonwealth v. Garris, 672 A.2d 343 (Pa. Super.
                  1996), concluded that it is improper under 35 P.S. §
                  750.13 to impose multiple penalties for a continuing
                  offense?

         III.     Did the lower court err in denying the admission of
                  Mikec’s evidence of lack of citation of other property
                  owners in support of his defense of selective
                  prosecution by finding it to be an attempt to impeach
                  a witness on a collateral matter?

Mikec’s Brief at 4. In his brief, Mr. Mikec combines issues one and two. Thus,

we will also address them as one issue. Moreover, because our disposition of

that issue vindicates Mr. Mikec, we will not reach the merits of his remaining

claim of error.




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       Mr. Mikec contends the trial court misinterpreted the provisions of the

PaSFA and misapplied this Court’s precedent, Garris, supra, by reconvicting

and resentencing him for a continuous violation. He further notes that, in the

twenty-two years since Garris, the legislature has not established recurring,

criminal culpability for continuous PaSFA violations.      Instead, he says, the

PaSFA allows municipalities, such as Chartiers Township, to seek civil damages

for ongoing violations.          In other words, the government sought an

impermissible, secondary, criminal sanction, when its proper remedy was via

a weekly assessment under 35 P.S. § 750.13a(d).

       The Commonwealth’s single-paragraph argument relies exclusively on

the trial court’s Rule 1925(a) Opinion. See Commonwealth’s Brief at 8. We

will examine the trial court’s rationale in detail shortly. As we will explain, the

Commonwealth’s reliance upon that 1925(a) Opinion is misplaced.

       The interpretation of a statute – such as the PaSFA – presents this Court

with a purely legal question. Thus, “our scope of review is plenary, and our

standard of review is de novo.”          Commonwealth v. Andrews, 173 A.3d

1219, 1221 (Pa. Super. 2017).

       We begin our review with a discussion of Commonwealth v. Garris,

672 A.2d 343 (Pa. Super. 1996). In that case, a criminal complaint was filed

against Mr. Garris for not obtaining a permit under 35 P.S. § 750.7.2 After a

____________________________________________


235 P.S. § 750.7 deals with many situations where land owners might “install,
construct, or award a contract for construction, or alter, repair or connect to



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hearing on the matter, the court ordered him to correct the sewage violation

by a date certain. Mr. Garris did not comply in time. Thus, the magistrate

fined him $2,700 for the period of time during which the problem remained

uncorrected.      Mr. Garris appealed to the court of common pleas, which

convicted and ordered him to pay the $2,700 fine. He appealed to this Court,

and we vacated his sentence.

       When interpreting 35 P.S. §§ 750.7 and 750.13 in Garris, this Court

was faced with deciding “whether Garris’ inactivity constituted more than one

violation of § 750.7.” Garris at 344. We explained that the rules of statutory

construction provide:

          “[w]henever a penalty or forfeiture is provided for the
          violation of a statute, such penalty or forfeiture shall be
          construed to be for each such violation.” 1 Pa.C.S.A. §
          1930. Thus, we must determine whether Garris’s inactivity
          constituted more than one violation of § 750.7. After careful
          consideration, we find that Garris’s failure to obtain a
          sewage permit equaled a single continuing violation, rather
          than a series of identical violations.

             “[C]ontinuing offenses are proscribed activities that are
          of an ongoing nature and cannot be feasibly segregated into
          discrete   violations    so   as   to   impose     separate
          penalties.” Newcomer Trucking v. P.U.C., 109 Pa.
          Commw. 341, 345, 531 A.2d 85, 87 (1987) (citation
          omitted).   Instantly, without legislative guidance, it is
          impossible for us to segregate Garris’s inactivity into
          separate violations of § 750.7. Any attempt to do so merely
____________________________________________


an individual sewage system or community sewage system or construct, or
request bid proposals for construction, or install or occupy any building or
structure for which an individual sewage system or community sewage system
is to be installed . . . .” 35 P.S. § 750.7(a)(1). Section 750.7 mandates that
all sewerage-related building, repair, or connection projects receive permitting
via the appropriate, governmental authority. See id.

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        equates to an arbitrary judicial determination. Taken to its
        logical extension, the Commonwealth would have us find
        separate violations for every hour, minute, or second that
        Garris had not obtained a permit. Appellee essentially
        requests that we re-write § 750.13 to read that the
        maximum penalty may be imposed “per day for each
        violation.” While our legislature has repeatedly written such
        language into the laws of our state, it has failed to do so
        concerning § 750.13. As such, we are constrained to apply
        the law as it has been written and, thus, it would be
        improper to adjudicate Garris guilty of more than one
        violation of § 750.7. See Key Savings and Loan Assn. v.
        Louis John, Inc., 379 Pa.Super. 226, 230-32, 549 A.2d
        988, 991 (1988) (“this Court is without authority to insert a
        word into a statutory provision where the legislature has
        failed to supply it”).

Garris, 672 A.2d at 344 (footnote omitted).

     Just like the permit-requirement section at issue in Garris, the language

of Section 750.14 makes no mention of continuous discharges resulting in

recurring, daily summary offenses, as the Commonwealth contends. Instead,

the statutory language has a plain and unambiguous meaning – specifically,

sewage discharge to the surface of an owner’s land is “a nuisance.” 35 P.S.

§ 750.14 (emphasis added). That plain language shows a legislative intent to

create only one criminal act, per continuous overflow.

     In addition, as it did in Garris, 35 P.S. § 750.13 reinforces this

interpretation. Section 750.13 establishes “a summary offense” – i.e., one –

for each nuisance. 35 P.S. § 750.13 (emphasis added).

     In the two decades since Garris, the General Assembly did not amend

Section 750.13 to establish daily, recurring summary offenses. Had it wished

to adjust the PaSFA’s language in response to Garris, the legislative branch


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had ample opportunity to do so. It has not. Thus, we find in Sections 750.14

and 750.13 the same legislative scheme that Garris found in Sections 750.7

and 750.13 of the PaSFA – namely, one count of criminal culpability per

statutory violation.

      The trial judge found Garris inapplicable, because law enforcement only

cited Mr. Garris once, but cited Mr. Mikec twice. Trial Court Opinion, 6/14/18,

at 2. In other words, the trial court concluded that Mr. Mikec committed a

second offense in 2017, because Officer Glumac issued him a second citation.

But this circular logic only begs the question at bar: i.e., did Officer Glumac

properly cite Mr. Mikec in 2017 a second time for the continuing violation?

      We find this second citation was improper, because, the 2017 leak was

not “a one-time overflow,” but rather, “a continuous” one that began in 2016.

N.T., 5/1/18, at 11.

      Moreover, the trial court opined that, if Mr. Mikec “is correct, it would

be far less expensive for a homeowner to pay a single fine under §750.13

rather than spend considerably more in remediating a faulty system.” Trial

Court Opinion, 6/14/18, at 2.

      Here, the trial judge’s logic is sound. But “without legislative guidance,

it is impossible for us to segregate [Mr. Mikec’s] inactivity into separate

violations of” Section 750.14, and the trial judge’s “attempt to do so merely

equates to an arbitrary judicial determination.” Garris at 344.

      Instead, the legislature has provided municipalities, such as Chartiers

Township, an administrative, civil remedy to deal with persons, such as Mr.

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Mikec, who refuse to clean-up their sewage pollution.      Local governments’

statutory recourse is as follows:

           [i]n any case where the department, municipality, or local
           agency determines that damage resulting from the violation
           is of a continuing nature, the department, municipality, or
           local agency may impose a weekly assessment of not more
           than two-thousand-five-hundred dollars ($2,500) per week
           for each week the violation continues unabated by the
           violator. The weekly assessment shall accrue indefinitely
           after the date of notice of the assessment to the violator.

35 P.S. § 750.13a(d).     Indeed, the assessing governmental authority may

unilaterally impose a greater financial penalty than the minimum fine of $500

under 35 P.S. § 750.13. Accordingly, we agree with Mr. Mikec. Chartiers

Township (and, by extension, the Commonwealth) has, by issuing a second

criminal citation, pursued an improper means for abating Mr. Mikec’s on-going

nuisance of a leaking septic tank.

      Because the trial court erroneously convicted and fined Mr. Mikec twice

for a single, continuous violation of the PaSFA, we overturn this second guilty

verdict.

      Also, this renders Mr. Mikec’s remaining appellate issue moot. As such,

we dismiss it.

      Conviction reversed. Judgment of sentence vacated.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2019




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