Com. of PA v. E.P. Stilp

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. : No. 155 C.D. 2022

: Argued: December 12, 2022

Eugene P. Stilp, :

:

Appellant :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: October 5, 2023

Eugene P. Stilp (Stilp) appeals the judgment of sentence imposed in the

Court of Common Pleas of the 17th Judicial District, Union County Branch (trial

court) on his conviction for violating Section 125-2(A) of Lewisburg Borough’s

(Borough) Open Burning Ordinance (Ordinance).1 We affirm.

1

Section 125-2(A) of the Ordinance states:

It shall be unlawful for any person to cause, suffer, or allow the

open[-]fire burning of any refuse [or] rubbish . . . from which the

products of combustion are discharged into the open air.

In turn, Section 125-1 defines “refuse” as “[a]ll putrescible and nonputrescible solid wastes such

as . . . petroleum products . . . whether new or used . . . .” Additionally, Section 125-1 defines

“rubbish” as “[a]ll nonputrescible solid wastes, such as . . . cardboard [or] paper . . . and similar

material.” See also Section 1202(5) of the Borough Code, 8 Pa. C.S. §1202(5) (“The specific

(Footnote continued on next page…)

I.

The facts as found by the trial court were summarized as follows:

On March 12, 2020, Officer Daniel Baumwoll of

the Buffalo Valley Regional Police Department [(Officer

Baumwoll)] cited [Stilp] for violating the [Borough’s

Ordinance], specifically [S]ection 125-2. It is undisputed

that [Stilp] appeared at the Union County Courthouse with

a steel trash can and fire extinguisher, ignited newspaper

and a flag, and was cited by [Officer Baumwoll]. Officer

Baumwoll warned [Stilp] of the [Ordinance] prior to

[Stilp’s] actions. Officer Baumwoll testified that products

of combustion were discharged into open air. [Stilp]

argues that his action of burning a flag [bearing the then-

powers of the borough shall include . . . [t]o make regulations as may be necessary for the health,

safety, morals, general welfare and cleanliness and beauty, convenience, comfort and safety of the

borough.”); Section 1202(11) of the Borough Code, 8 Pa. C.S. §1202(11) (“The specific powers

of the borough shall include . . . [t]o regulate the emission of smoke from chimneys, smokestacks

and other sources to the extent the regulation is not otherwise prohibited by applicable Federal or

State law.”); and Section 1202(17)(iv) of the Borough Code, 8 Pa. C.S. §1202(17)(iv) (“The

specific powers of the borough shall include . . . [t]o impose, by ordinance, other safeguards

concerning inflammable articles as may be necessary.”).

Moreover, Section 125-3 of the Ordinance outlines the exceptions and exemptions to the

provisions of Section 125-2(A), stating:

This chapter shall not apply to open fires, barbecues or other

domestic open combustion areas used solely for the cooking of

consumable foods, nor to any training activities of the [Borough’s]

Fire Companies or Buffalo Valley Regional Police Department, or

to other organizations dedicated to the public good, where open fires

or incineration shall be an integral part of their training or effective

purposes.

See also generally Section 6107(a) of the Judicial Code, 42 Pa. C.S. §6107(a) (“The ordinances of

municipal corporations of this Commonwealth shall be judicially noticed.”); the Comment to

Pa.R.E. 201 (“In determining the law applicable to a matter, the judge is sometimes said to take

judicial notice of law. In Pennsylvania, judicial notice of law has been regulated by decisional

law, statute, and rule. See . . . [Section 6107 of the Judicial Code,] 42 Pa. C.S. §6107 (judicial

notice of municipal ordinances). . . .”).

2

president’s name] w[as] a form of political protest and

protected by the First Amendment[, U.S. Const. amend. I].

[Stilp] argues that the [Ordinance] is unconstitutional on

its face and as applied.

Reproduced Record (RR) at 98a-99a (citation omitted). In relevant part, the Citation

stated that Stilp “did open[-fire] burn a combustible material in a metal can on a

public sidewalk. Products of combustion were released into the open air.” Id. at 2a.

Stilp appealed the Citation, and a hearing was conducted before a

Magisterial District Judge (MDJ) on November 20, 2020, at which Stilp did not

appear. See Docket No. MJ-17301-NT-00000777-2020 (MDJ Docket) at 3. The

MDJ convicted Stilp of the offense and imposed a $1.00 fine and court costs. Id. at

3, 5. Stilp appealed his conviction to the trial court.

On May 6, 2021, the trial court conducted a hearing on Stilp’s de novo

summary appeal. See RR at 7a-78a. Both Officer Baumwoll and Stilp testified at

the hearing. See id. at 11a-19a, 38a-61a. Ultimately, the trial court convicted Stilp

of violating the Ordinance, stating, in pertinent part:

The [c]ourt finds the Commonwealth has met it[s]

burden to prove beyond a reasonable doubt [Stilp] has

violated Section 125-2 of the [Ordinance]. Officer

Baumwoll testified and the [c]ourt finds that, in addition

to burning a flag, [Stilp] burned newspaper in an open fire

in the Borough. Officer Baumwoll testified and the

[c]ourt finds that products of combustion were discharged

into the open air. Paper is clearly in the definition of

“Rubbish” contained in the Ordinance. No argument was

offered raising any First Amendment concerns with

[Stilp’s] action in burning the newspaper.

Additionally, [Stilp’s] argument that he did not

violate the [Ordinance] because his numerous anti-Trump

protests were carried out by an “organization dedicated to

the public good[,” as provided in Section 125-3,] fails. . . .

3

Regardless of [Stilp’s] status as an “organization

dedicated to the public good,” there is no evidence of

record that the burning of newspaper was an integral part

of such organization’s training or effective purpose. The

[c]ourt finds [Stilp] guilty of a violation of the

[Ordinance,] specifically [S]ection 125-2. The [c]ourt

having found [Stilp] guilty of violating Section 125-2 for

his burning of paper, declines to make any finding

regarding [Stilp’s] burning of the flag.

RR at 100a-01a. On January 21, 2022, at a sentencing hearing, the trial court

sentenced Stilp to pay a $100.00 fine and court costs on his conviction. See id. at

104a. Stilp then filed the instant timely appeal of the judgment of sentence.2, 3

2

As this Court has explained:

This Court’s review of a nonjury trial is limited to determin[ing]

whether the findings of the trial court are supported by competent

evidence, and whether the trial judge committed error in the application

of law. Commonwealth v. Hoffman, 938 A.2d 1157[, 1160 n.10] (Pa.

Cmwlth. 2007). As a reviewing court, this Court may not reweigh the

evidence or substitute our judgment for that of the factfinder. Id.

Furthermore, the factfinder is free to believe all, part or none of the

evidence presented. Id. In addition, a challenge to the sufficiency of the

evidence is a question of law requiring a plenary scope of review.

Commonwealth v. Cosentino, 850 A.2d 58[, 63 n.10] (Pa. Cmwlth.

2004). Our review of a sufficiency of the evidence claim is limited to

determining whether the evidence admitted at trial and all reasonable

inferences drawn therefrom, when viewed in the light most favorable to

the Commonwealth as the verdict winner, is sufficient to support all the

elements of the offense beyond a reasonable doubt. Id.

Commonwealth v. Parente, 956 A.2d 1065, 1068 n.8 (Pa. Cmwlth. 2008). In addition, as a final

matter, “[i]t is well settled that, in general, ordinances are presumed to be constitutional, and a

heavy burden is placed on those seeking to prove its unconstitutionality.” Id. at 1070 (citation

omitted).

3

In the interest of clarity, we reorder Stilp’s appellate claims.

4

II.

On appeal, Stilp claims: (1) the trial court erred in determining that the

Commonwealth carried its First Amendment burden of establishing that the Section

125-3 exemption for “organizations dedicated to the public good” satisfies “strict

scrutiny”;4 (2) the trial court erred in determining that the Commonwealth carried its

First Amendment burden of establishing that the Section 125-3 exemption for

“organizations dedicated to the public good” satisfies “intermediate scrutiny”; and

(3) the trial court erred in determining that Ordinance Section 125-2(A) is not

unconstitutionally vague, fails the rule of lenity, and does not inculpate Stilp because

he fits within the Section 125-3 exemption for “other organizations dedicated to the

public good, where open fires or incineration shall be an integral part of their . . .

effective purposes.” We do not agree.

III.

With respect to Stilp’s First Amendment claims, in general, “[t]he

guarantees of the First Amendment have never meant ‘that people who want to

propagandize protests or views have a constitutional right to do so whenever and

however and wherever they please.’” Greer v. Spock, 424 U.S. 828, 836 (1976). In

evaluating Stilp’s claims herein, the Pennsylvania Supreme Court has recently

analyzed the level of scrutiny applied to restraints on protected speech:

Restrictions on the time, place and manner of

expression, whether oral, written or symbolized by

conduct, are a form of a content-neutral regulation of

4

The First Amendment to the United States Constitution provides, in relevant part, that

“[C]ongress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I.

The Free Speech Clause of the First Amendment is applicable to the states through the Fourteenth

Amendment, U.S. Const. amend. XIV. In re Condemnation by the Urban Redevelopment

Authority of Pittsburgh, 913 A.2d 178, 183 (Pa. 2006).

5

speech. These restrictions may make it more difficult for

an individual to engage in a desired speech-related activity

by targeting, inter alia, the means of speech or the method

of communication, but they do not target the content of the

message ultimately conveyed. Time, place, and manner

restrictions are valid, provided that they: (1) are justified

without reference to the content of the regulated speech;

(2) are narrowly tailored to serve a significant

governmental interest unrelated to speech; and (3) leave

open ample alternative channels for communication of the

information.

The [United States Supreme] Court has explained

that “[t]he principal inquiry in determining content

neutrality, in speech cases generally and in time, place, or

manner cases in particular, is whether the government has

adopted a regulation of speech because of disagreement

with the message it conveys.” The government’s purpose

of the speech restriction is the controlling consideration

and, if the purpose is unrelated to the expression of

content, the restriction is deemed neutral, even though the

speech restriction may have an incidental effect on some

speakers or messages, but not others.

S.B. v. S.S., 243 A.3d 90, 105-06 (Pa. 2020), cert. denied, 142 S. Ct. 313 (2021)

(citations and footnote omitted).5

Indeed, as that Court has acknowledged, a time, place, or manner

regulation “is constitutionally permissible if reasonable and in furtherance of a

5

As our Supreme Court explained:

While the precise text of the two constitutional standards

differ (i.e., the [United States v. O’Brien, 391 U.S. 367, 377 (1968),]

standard employed to determine whether a regulation of speech is

content neutral and the specific standard applicable to time, place,

and manner restrictions on speech), the High Court has clarified that

the O’Brien standard “is little, if any, different from the standard

applied to time, place, or manner restrictions.” [Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 298 (1984)].

S.B., 243 A.3d at 106.

6

substantial governmental interest.” Brush v. Pennsylvania State University, 414

A.2d 48, 53 (Pa. 1980) (citations omitted). “Moreover, [t]he state, no less than a

private owner of property, has the power to preserve the property under its control

for the use to which it is lawfully dedicated.” Id. at 53 n.8 (citing Greer, 424 U.S.

at 836).

As outlined above, Stilp was convicted herein for violating Section 125-

2(A) of the Borough’s Ordinance by burning newspaper midday on the courthouse

steps, and not for engaging any protected speech. Stilp’s first claim that the

Ordinance is facially unconstitutional is meritless because, as the Pennsylvania

Supreme Court has acknowledged, “we are convinced that there are narrow

categories of flag desecration constitutionally punishable under [Section 2102 of the

Pennsylvania Crimes Code, 18 Pa. C.S. §2102,[6] prohibiting the desecration of the

state or national flag].” Commonwealth v. Bricker, 666 A.2d 257, 263 (Pa. 1995).7

Likewise, there are many instances of burning ordinary “refuse” or “rubbish” that

do not fall within the ambit of the First Amendment’s constitutional protections

because “[w]here there is no expression of ideas, there is no protection.” Id. As a

result, the provisions of Section 125 of the Borough’s Ordinance are not facially

unconstitutional. See, e.g., Bricker, 666 A.2d at 263 (“[W]e are convinced that there

are narrow categories of flag desecration constitutionally punishable under Section

6

Section 2102(a)(4) states: “A person is guilty of a misdemeanor of the third degree if, in

any manner, he . . . publicly or privately mutilates, defaces, defiles, or tramples upon, or casts

contempt in any manner upon any flag.” 18 Pa. C.S. §2102(a)(4). However, Section 2102(b)(4)

provides: “Subsection (a) of this [S]ection does not apply . . . [t]o any patriotic or political

demonstration or decorations.” 18 Pa. C.S. §2102(b)(4).

7

See also 666 at 263 (“[T]he United States Supreme Court has suggested that a person

might be punished for commercial exploitation of the flag, see [United States v. Eichman, 496 U.S.

310, 315 n.4 (1990)], and desecrating a publicly owned flag, see id. at 316 n.5[.]”).

7

2102. Accordingly, we refuse to find our flag desecration statute facially

unconstitutional.”).

In addition, Stilp’s as-applied constitutional challenge is also meritless.

Initially, with respect to the first enumerated S.B. criterion, it must be noted that, as

outlined above, Section 1202 of the Borough Code specifically empowers the

Borough to enact Section 125-2(A) of the Ordinance for the general health, safety,

and welfare, and to reduce noxious emissions into the air. See, e.g., City of Erie v.

Pap’s A.M., 529 U.S. 277, 296 (2000) (“The first factor of the O’Brien test is whether

the government regulation is within the constitutional power of the government to

enact. Here, [the city’s] efforts to protect public health and safety are clearly within

the city’s police powers.”). Because the Borough is specifically empowered to enact

legislation in these areas, it was within its constitutional and statutory authority to

enact Section 125-2(A) of the Ordinance.

Thus, the instant case may be distinguished from Bricker, and all of the

other state and federal precedent regarding flag desecration statutes and ordinances,

because Section 125-2 of the Ordinance herein does not prohibit the burning of any

flag in particular, but generally prohibits “the open[-]fire burning of any refuse [or]

rubbish . . . from which the products of combustion are discharged into the open air.”

It is undisputed that Stilp ignited both newspaper and a flag in his demonstration,

and that the newspaper may be considered as “rubbish,” which is defined in Section

125-1 as “[a]ll nonputrescible solid wastes, such as . . . cardboard [or] paper . . . and

similar material.”

Regarding the second S.B. criterion, as the United States Supreme Court

has explained:

[In O’Brien,] O’Brien burned his draft registration card as

a public statement of his antiwar views, and he was

8

convicted under a statute making it a crime to knowingly

mutilate or destroy such a card. This Court rejected his

claim that the statute violated his First Amendment rights,

reasoning that the law punished him for the

“noncommunicative impact of his conduct, and for

nothing else.” 391 U.S.[] at 382[.] In other words, the

Government regulation prohibiting the destruction of draft

cards was aimed at maintaining the integrity of the

Selective Service System and not at suppressing the

message of draft resistance that O’Brien sought to convey

by burning his draft card. So too here, the ordinance

prohibiting public nudity is aimed at combating crime and

other negative secondary effects caused by the presence of

adult entertainment establishments . . . and not at

suppressing the erotic message conveyed by this type of

nude dancing. Put another way, the ordinance does not

attempt to regulate the primary effects of the expression,

i.e., the effect on the audience of watching nude erotic

dancing, but rather the secondary effects, such as the

impacts on public health, safety, and welfare. . . .

City of Erie, 529 U.S. at 291.

Likewise, in the instant matter, Section 125-2(A) of the Borough’s

Ordinance is specifically aimed at preventing the discharge of the noxious products

of combustion into the open air, and not at all by suppressing the primary political

message that Stilp sought to convey through his prohibited conduct. Again, Stilp

was not prosecuted because a flag was destroyed; rather, he was prosecuted for

burning “rubbish” and the political flag “from which the products of combustion

[we]re discharged into the open air” in violation of Section 125-1 of the Ordinance.8

As a result, his violation of Section 125 of the Ordinance solely and exclusively

8

The question of whether or not the political flag may be considered to be either “refuse”

or “rubbish” under the relevant provisions of Section 125 of the Ordinance is not necessary to our

analysis because, as indicated above, Stilp was only convicted of burning the newspaper as

“rubbish” in violation of the Ordinance.

9

“punished him for the ‘noncommunicative impact of his conduct, and for nothing

else.’ [O’Brien,] 391 U.S.[] at 382[.]” City of Erie, 529 U.S. at 291.

Moreover, as outlined above, Section 125-2(A) specifically prohibits

“the open[-]fire burning of any refuse [or] rubbish . . . from which the products of

combustion are discharged into the open air.” Thus, the Ordinance is “narrowly

tailored to serve th[is] significant governmental interest unrelated to speech.” S.B.,

243 A.3d at 105.9

Lastly, with regard to the final S.B. criterion, Section 125-2(A) of the

Borough’s Ordinance leaves open a multitude of other channels for Stilp to

communicate his message. Specifically, Section 125-2(A) only prohibits the

burning of the flag and the newspaper. Stilp could have mutilated and/or destroyed

the flag by any other permitted means, or used any other appropriate expressive

methods to convey the same message. See, e.g., Kovacs v. Cooper, 336 U.S. 77, 87-

88 (1949) (“Section 4 of the ordinance bars sound trucks from broadcasting in a loud

and raucous manner on the streets. There is no restriction upon communication of

ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by

dodgers. We think that the need for reasonable protection in the homes or business

houses from the distracting noises of vehicles equipped with such sound amplifying

devices justifies the ordinance.”) (footnotes omitted); Spriggs v. South Strabane

Township Zoning Hearing Board, 786 A.2d 333, 336 (Pa. Cmwlth. 2001)

(“[F]inally, the [o]rdinance leaves open alternative means for appellant to

communicate his religious beliefs, such as conforming his sign to the size

9

Nevertheless, as our Supreme Court stated: “The United States Supreme Court has

clarified that ‘a regulation of the time, place, or manner of protected speech must be narrowly

tailored to serve the government’s legitimate, content-neutral interests, but that it need not be the

least restrictive or least intrusive means of doing so.’” S.B., 243 A.3d at 105 n.12 (citation

omitted).

10

requirements of the [o]rdinance for his [zoning] district, or, as the [b]oard noted,

attempting to declare his religious beliefs on a sign of this size in an I-2

district. . . .”); State v. Cornwell, 776 N.E.2d 572, 580 (Oh. Ct. App. 2002) (“[The

ordinance] is not a complete ban on playing music from automobiles. It permits

music to be played at any volume that does not disturb the peace of others, i.e., that

does not cause or tend to incite a breach of the peace. [The a]ppellant had ample

opportunity to play music from his car, albeit at a volume lower than that which

would cause a disturbance of the peace. Furthermore, in respect to [the ordinance,

the] appellant made no attempt to show that any of the alternative avenues of

communication were inadequate.”) (citation omitted).10 As a result, Stilp’s claims

10

Furthermore, as the Superior Court has stated:

The value to an open society derived from the free flow of ideas is

self-evident. For that reason courts have been loath to sanction any

measure which infringes upon a person’s right to communicate his

ideas. Pure speech therefore is a right which is to be zealously

preserved in our society. However, as a person’s activities move

away from pure speech and into the area of expressive conduct they

require less constitutional protection. As the mode of expression

moves from the printed page or from pure speech to the commission

of public acts the scope of permissible regulation of such expression

increases. See [O’Brien]; Commonwealth v. Winkleman, [326 A.2d

496 (Pa. Super. 1974)]. It should be noted that in our case the very

purpose of the court order was not to limit the expression of the ideas

appellants were attempting to communicate[,] but was to limit the

conduct by which the appellants chose to communicate their ideas.

It is apparent that in a highly technological, civilized society a

person or group of persons cannot justify participation in any type

of conduct, without any limits at all, merely because they allege that

their conduct has a higher, symbolic purpose which, they allege,

brings it within the ambit of protection afforded to free speech.

Rouse Philadelphia Inc. v. Ad Hoc ‘78, 417 A.2d 1248, 1254 (Pa. Super. 1979).

11

that Section 125 of the Ordinance violates the First Amendment, either facially or as

applied to him herein, are without merit.

IV.

Finally, Stilp claims that the Ordinance is unconstitutionally vague,

violates the rule of lenity, and does not inculpate him because the exemption

contained in Section 125-3 does not adequately define “organizations dedicated to

the public good where open fires or incineration shall be an integral part of their

training or effective purposes.” Specifically, Stilp cites Officer Baumwoll’s

testimony that this exemption was unclear and that the Officer believed that the Boy

Scouts were likely within its scope. See RR at 17a. He also cites his own testimony

that he was part of a group of protestors conducting anti-Trump protests in 24

Pennsylvania municipalities and that an integral part of the protests is the flag

burning that served the public good as “a physical way of calling attention to the

subject of the matter which was the nature of Donald Trump’s belief system.” RR

at 42a.

As this Court has stated:

There is a strong presumption that legislative

enactments are constitutional. For that reason, a

constitutional challenge can succeed only when the

challenger demonstrates that the law clearly, plainly, and

palpably violates the Pennsylvania Constitution. The

void-for-vagueness doctrine is grounded in procedural due

process protections. As explained by the Pennsylvania

Supreme Court:

A law is void on its face if it is so vague that

persons “of common intelligence must

necessarily guess at its meaning and differ as

to its application.” The void for vagueness

doctrine incorporates the due process notions

12

of fair notice or warning. . . . [I]n reviewing

a void for vagueness challenge, we must

consider both the essential fairness of the law

and the impracticability of drafting the

legislation with greater specificity.

Although at first blush a law may appear

vague on its face and those subject to it

without fair notice, however, it may

withstand a constitutional challenge if it has

been narrowed by judicial interpretation,

custom and usage. . . .

Marcellus Shale Coalition v. Department of Environmental Protection, 216 A.3d

448, 487-88 (Pa. Cmwlth. 2019) (citations omitted).

In turn, Section 1903 of the Statutory Construction Act of 1972

(Statutory Construction Act), states: “Words and phrases shall be construed

according to rules of grammar and according to their common and approved usage;

. . . General words shall be construed to take their meanings and be restricted by

preceding particular words.” 1 Pa. C.S. §1903. In addition, Section 1928(b)(1)

states: “All provisions of a statute of the classes hereafter enumerated shall be

strictly construed: [] Penal provisions.” 1 Pa. C.S. §1928(b)(1).11 Likewise,

“[u]nder the rule of lenity, when a penal statute is ambiguous, it must be strictly

construed in favor of the defendant.” Commonwealth v. Cousins, 212 A.3d 34, 39

(Pa. 2019) (citation omitted). As the United States Supreme Court has recognized,

the rule of lenity “is rooted in fundamental principles of due process which mandate

11

“[W]e note that the principles and rules of statutory construction apply equally to the

interpretation of statutes and to local laws. Hamilton v. Unionville-Chadds Ford School District,

[714 A.2d 1012, 1014 (Pa. 1998)].” Commonwealth v. Asamoah, 809 A.2d 943, 945 (Pa. Super.

2002); see also Wertz v. Chapman Township, 709 A.2d 428, 433 n.8 (Pa. Cmwlth. 1998) (“This

[C]ourt is not bound by the Superior Court’s precedents although, where persuasive, we are free

to adopt the Superior Court’s reasoning.”) (citations omitted).

13

that no individual be forced to speculate, at peril of indictment, whether his conduct

is prohibited.” Dunn v. United States, 442 U.S. 100, 112 (1979) (citations omitted).

However,

the “simple existence of some statutory ambiguity . . . is

not sufficient to warrant application of the rule of lenity,

for most statutes are ambiguous to some degree.” Rather,

the rule only applies in those cases “in which a reasonable

doubt persists about a statute’s intended scope,” after

consulting “every thing [sic] from which aid can be

derived.” The rule is therefore an interpretative method of

“last resort” and “need not be applied when the intent of

[the legislative body] is already clear based on an analysis

of the plain meaning of the statute.”

United States v. Brown, 740 F.3d 145, 151 (3d Cir. 2012) (citations omitted).12 Thus,

“[t]he rule comes into operation at the end of the process of construing what [the

legislative body] has expressed, not at the beginning as an overriding consideration

of being lenient to wrongdoers.” Gozlon-Peretz v. United States, 498 U.S. 395, 410

(1991) (citation omitted).

As outlined above, Section 125-3 of the Ordinance states:

This chapter shall not apply to open fires, barbecues or

other domestic open combustion areas used solely for the

cooking of consumable foods, nor to any training

activities of the Lewisburg Fire Companies or Buffalo

Valley Regional Police Department, or to other

organizations dedicated to the public good, where open

fires or incineration shall be an integral part of their

training or effective purposes.

(Emphasis added.)

12

“Although decisions of the Court of Appeals for the Third Circuit are not binding on

Pennsylvania courts, they have persuasive value. Garber v. Pennsylvania Department of

Corrections, 851 A.2d 222[, 226 n.9] (Pa. Cmwlth. 2004).” Kutnyak v. Department of Corrections,

923 A.2d 1248, 1250 (Pa. Cmwlth. 2007).

14

Contrary to Stilp’s assertions, the exemption in Section 125-3 of the

Ordinance does not provide a “speaker preference” with respect to his core political

speech. As the United States Supreme Court has observed:

Under th[e First Amendment], a government, including a

municipal government vested with state authority, “has no

power to restrict expression because of its message, its

ideas, its subject matter, or its content.” Content-based

laws—those that target speech based on its communicative

content—are presumptively unconstitutional and may be

justified only if the government proves that they are

narrowly tailored to serve compelling state interests.

Government regulation of speech is content based if

a law applies to particular speech because of the topic

discussed or the idea or message expressed. This

commonsense meaning of the phrase “content based”

requires a court to consider whether a regulation of speech

“on its face” draws distinctions based on the message a

speaker conveys. Some facial distinctions based on a

message are obvious, defining regulated speech by

particular subject matter, and others are more subtle,

defining regulated speech by its function or purpose. Both

are distinctions drawn based on the message a speaker

conveys, and, therefore, are subject to strict scrutiny.

Reed v. Town of Gilbert, 576 U.S. 155, 163-64 (2015) (citations omitted).

In contrast, as outlined above, the exemption in Section 125-3 that is at

issue herein only applies to “the training activities of the Lewisburg Fire Companies

or Buffalo Valley Regional Police Department, or other organizations dedicated to

the public good, where open fires or incineration shall be an integral part of their

training or effective purposes.” Because the exemption only applies to

“incineration” that is “an integral part” of these public service organizations’

“training activities,” on its face, such an incineration in such a circumstance is not,

in fact, core political speech, but merely a training activity in which these

15

organizations routinely engage. See Section 1903(b) of the Statutory Construction

Act, 1 Pa. C.S. §1903(b) (“General words shall be construed to take their meanings

and be restricted by preceding particular words.”).

More to the point, unlike Stilp’s political demonstration, an incineration

performed pursuant to the above exemption is pure conduct relating to the training

of these enumerated public safety organizations, and other like organizations, and

not protected speech, in the first instance. See, e.g., Commonwealth v. Mayfield, 832

A.2d 418, 424 (Pa. 2003) (“On its face, the statute proscribes pure conduct.

However, expressive conduct can constitute protected expression where ‘[a]n intent

to convey a particularized message [is] present, and in the surrounding

circumstances the likelihood [is] great that the message would be understood by

those who view[] it.’”) (citation omitted); Bricker, 666 A.2d at 260-61 (“[T]he

protections of the First Amendment ‘do[] not end at the spoken and written word.’

However, conduct cannot be labeled speech ‘whenever the person engaging in the

conduct intends to express an idea.’ Rather, only that conduct ‘sufficiently imbued

with the elements of communication’ falls within the scope of the First

Amendment.”) (citations omitted).

Contrary to Stilp’s assertions, Section 125 of the Township’s Ordinance

is sufficiently definite so that ordinary people can understand what conduct is

prohibited by its plain terms, and it is not so vague that a person of common

intelligence must necessarily guess at its meaning and differ as to its application.

Rather, the Ordinance provides reasonable standards by which a member of the

public may gauge his, her, or their conduct, and does not prefer any message or any

speaker. Whatever latent ambiguity may lurk in the terms “other organizations

dedicated to the public good,” as outlined above, Stilp’s expressive conduct in this

16

matter clearly does not fall within the ambit of an “incineration” that relates to the

“training activities” of the enumerated organizations. Moreover, because the

exemption in Section 125-3 of the Township’s Ordinance is not based on such

expressive conduct, but based merely on the core training activities of such public

safety organizations, Stilp’s allegations of error in this regard are without merit.

Accordingly, the judgment of sentence is affirmed.

MICHAEL H. WOJCIK, Judge

17

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. : No. 155 C.D. 2022

:

Eugene P. Stilp, :

:

Appellant :

ORDER

AND NOW, this 5th day of October, 2023, the judgment of sentence

entered in the Court of Common Pleas of the 17th Judicial District, Union County

Branch, dated January 21, 2022, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. :

: No. 155 C.D. 2022

Eugene P. Stilp, :

Appellant : Argued: December 12, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION

BY JUDGE McCULLOUGH FILED: October 5, 2023

Although I agree with the Majority’s ultimate conclusion that Appellant

Eugene P. Stilp’s (Stilp) judgment of sentence must be affirmed, I cannot agree with

the broad and hypothetical path the Majority takes to affirmance. Rather, because

the Majority conducts extensive constitutional analysis that the disposition of this

appeal does not require and that the record and findings below do not support, and

engages in fact finding, I concur in the Majority’s result but respectfully disagree

with the entirety of its reasoning and legal holdings.

The Majority acknowledges that the Court of Common Pleas of the 17th

Judicial District, Union County branch (trial court), after a de novo bench trial, found

Stilp guilty of violating Section 125-2(A) of Lewisburg Borough’s (Borough) Open

Burning Ordinance (Ordinance)1 based on Stilp’s burning of newspaper during a

protest demonstration outside the Union County Courthouse. See Commonwealth v.

Stilp (Pa. Cmwlth., No. 155 C.D. 2022, filed October 5, 2023) (MO), slip op. at 2-4.

1

Section 125-2(A) of the Ordinance provides that “[i]t shall be unlawful for any person to

cause, suffer, or allow the open-fire burning of any refuse, rubbish, or garbage, from which the

products of combustion are discharged into the open air.” (Reproduced Record (R.R.) at 003a.)

Specifically, and notwithstanding the fact that Stilp also burned a political flag as

part of his demonstration, the trial court found as follows:

The [c]ourt finds the Commonwealth has met its burden to

prove beyond a reasonable doubt [that] [Stilp] has violated

Section 125-2 of the [Ordinance]. Officer [Daniel]

Baumwoll testified[,] and the [c]ourt finds[,] that[] in

addition to burning a flag, [Stilp] burned newspaper in an

open fire in the Borough.[2] Officer Baumwoll testified[,]

and the [c]ourt finds[,] that products of combustion were

discharged into the open air. Paper is clearly in the

definition of “Rubbish” contained in the Ordinance. No

argument was offered raising any First Amendment[, U.S.

Const. amend. I,] concerns with [Stilp’s] action in burning

the newspaper.

....

Regardless of [Stilp’s] status as an “organization dedicated

to the public good,” there is no evidence that the burning

of newspaper was an integral part of such organization’s

training or effective purpose.[3] The [c]ourt finds [Stilp]

guilty of a violation of the [Ordinance,] specifically

[S]ection 125-2. The [c]ourt[,] having found [Stilp] guilty

of violating Section 125-2 for his burning of paper,

declines to make any finding regarding [Stilp’s]

burning of the flag.

(R.R. at 100a-01a) (emphasis added). In its accompanying verdict, the trial court

found Stilp guilty “of a violation of the [Ordinance] for the burning of paper on

March 12, 2020.” (R.R. at 097a.) The trial court clearly based its verdict exclusively

2

The citation issued by Officer Baumwoll noted generally that “[Stilp] did open burn a

combustible material in a metal can on a public sidewalk. Products of combustion were released

into open air.” (R.R. at 002a.)

3

The Ordinance contains several exceptions to its open-burning prohibition. Relevant

here, Section 125-3 of the Ordinance provides that the prohibition does not apply to “any training

activities of the Lewisburg Fire Companies or Buffalo Valley Regional Police Department, or to

other organizations dedicated to the public good, where open fires or incineration shall be an

integral part of their training or effective purposes.” (Ordinance, § 125-3; R.R. at 003a.)

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on its finding that Stilp burned newspaper and made no findings regarding Stilp’s

burning of a flag. Because Stilp presented no evidence or argument that his

burning of newspaper either implicated his First Amendment rights to free

expression or was an “integral part” of the “effective purpose” of his

demonstration, he was found guilty.

Although the Majority acknowledges the trial court’s limited findings

and verdict,4 it nevertheless goes on to address, and reject, Stilp’s facial and as-

applied First Amendment challenges to the Ordinance. It does so, it appears, on the

unsupported factual basis that Stilp was “convicted . . . for violating Section 125-

2(A) of the [ ] Ordinance by burning newspaper and the Trump flag midday on the

courthouse steps, and not for engaging in any protected speech.” (MO, slip op. at

7). It is at this point that I believe the Majority goes beyond the record and findings

before us, and outside our scope of review, to conduct analysis that is, at base,

hypothetical. The Majority has essentially engaged in its own fact finding.

Specifically, Stilp was not convicted for burning a flag, which conviction would

be the exclusive basis upon which he could challenge the Ordinance on First

Amendment grounds. Given the gravity of the constitutional issues involved here

and the absence of any ability on this record to address them, judicial restraint is in

order.

Accordingly, I would affirm the trial court on the much narrower

ground that Stilp’s burning of newspaper neither implicates First Amendment

protections nor qualifies factually under the Section 125-3 exception. Because the

Majority has engaged in fact finding, performed legal analysis, and rendered

4

Although the Majority acknowledges the unresolved factual question of whether a flag

could be considered “refuse” or “rubbish” under Section 125-2(A) of the Ordinance, it nevertheless

deems the issue immaterial to our analysis because Stilp was convicted only of burning newspaper.

(MO, slip op. at 9 n.8.)

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constitutional holdings that are not implicated here and that well exceed the scope

of our review and the factual basis for affirmance, I respectfully cannot agree with

those excesses. Thus, I concur in the result only.

________________________________

PATRICIA A. McCULLOUGH, Judge

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