# Com. of PA v. E.P. Stilp

> Commonwealth Court of Pennsylvania · October 5, 2023

URL: https://www.frixlaw.com/law-library/cases/9882134

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 5, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Wojcik, J. ~ Concurring Opinion by McCullough, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.)

PAM-2
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.)
PAM-3
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

PAM-4

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9882134. Public record. Not legal advice.