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Dealing with Frequent Filer Becomes Legal Headache for Pa. Waste DistrictDealing with Frequent Filer Becomes Legal Headache for Pa. Waste District

Barry Shanoff

May 11, 2015

4 Min Read
Dealing with Frequent Filer Becomes Legal Headache for Pa. Waste District

If one could earn airline award miles based on court appearances, Timothy Dennis would probably be eligible for a round-the-world trip. Dennis may not a frequent flyer, but he surely is a frequent filer. Over the past five years, he has brought some seven appeals, challenging citations issued by the tiny borough of Walnutport, Pa., which has roots dating back to the canal boat trade in the early 1800s.

Dennis owns residential property in Walnutport. In February 2013, the borough cited him for violating its solid waste ordinance by not paying a special tax for garbage removal for the period of January to June 2013. The ordinance excuses an owner from the tax if a residence is uninhabitable or does not receive water or sewer service. As Dennis’ single-family dwelling gets municipal water service, it does not qualify for exemption. Following his not guilty plea, the case was heard by a magistrate judge who found Dennis guilty and ordered him to pay restitution in the amount of $121 plus penalties and costs. He appealed the ruling to the borough’s principal trial court where yet another hearing was held.

The borough secretary/treasurer testified she bills residents for borough-provided services, including a semi-annual invoice in the amount of $110 for garbage removal, regardless of whether a resident uses the garbage service or lives at the property. Dennis got a citation after he ignored her October 2012 invoice, as well as a past due notice, and a delinquent notice, and a final notice. Oddly, her records showed that Dennis paid the 2014 bill on time. The borough code enforcement officer testified he posted the final notice to the door of the house before issuing the citation. On cross examination, he acknowledged that non-payment citations (under prior ordinances) to Dennis in 2004 and 2008 for garbage removal services had been dismissed.

Dennis did not testify. However, he stipulated that he did not pay the garbage bill, that he was the exclusive owner of the property, and that the property is habitable and receives water service. At the conclusion of the trial, Dennis raised a number of defenses. When all was said and done, Dennis fared no better than he had earlier. Based on the evidence, the trial court entered a guilty finding and, as did the magistrate, ordered Dennis to pay restitution in the amount of $121 plus penalties and costs. From this decision, he appealed to the Commonwealth Court, a statewide intermediate appellate court where, presumably, Dennis thought the judges would reward his persistence with vindication.

Among other arguments, Dennis claimed the trial court erred by not dismissing the citation on double jeopardy grounds. The borough previously cited Dennis for the same violation -- nonpayment of a special tax for mandatory garbage removal service. Under the double jeopardy provisions of the United States Constitution and Pennsylvania state law, a second prosecution for the same offense is prohibited.

The appeals court rejected this argument for two reasons: first, although Dennis was previously prosecuted and found not guilty in 2004 and 2008 for violating a prior ordinance for not paying his prior garbage bills, the current citation was based on a different ordinance with different elements; second, a single criminal episode does not exist between any of the prior citations and the 2013 citation. “The trial court did not err in determining double jeopardy protections did not attach,” the appeals court said. “To conclude otherwise would essentially give Dennis a free pass from paying all future bills for garbage removal.”

Dennis also claimed that the citation was defective because it made only a general allegation of an unpaid garbage bill. The appellate panel was not persuaded. “Dennis cannot reasonably claim surprise or resulting prejudice warranting dismissal,” the opinion stated. “The content of the citation, taken as a whole, sufficiently notified Dennis of the nature of the summary offense and the violation charged.” Moreover, the court added, the prosecution produced evidence “beyond a reasonable doubt that Dennis violated . . . the ordinance.”

In dismissing his other claims of illegality, the appellate judges condoned a tool commonly used by municipalities in assessing utility charges: linking waste collections fees to water or sewer service. “If a property is not using water or sewer, it may be assumed that the property is not occupied and therefore not generating garbage,” the opinion said. “Although Dennis raises questions about other scenarios when a property may not be occupied, he did not demonstrate the unreasonableness of the Borough's classification in relation to the purpose of the Ordinance. Thus, the Ordinance's criteria used to classify those properties that are excluded are rational and constitutionally permissible.”

Borough of Walnutport v. Dennis, Pa. Cmwlth., No. 256 C.D. 2014, Mar. 30, 2015

About the Author(s)

Barry Shanoff

Attorney and General Counsel, Solid Waste Association of North America

Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.

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