Petition for Writ of Certiorari — Waste Conversion, Inc. v. Pennsylvania

IN THE rb

SUPREME COURT OF THE UNITED STATES 7

October Term, 1990

WASTE CONVERSION. INC..

Petitioner.

t

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COMMONWEALTH COURT

OF PENNSYLVANIA

Petitioner requests that a writ of certiorari be issued

to review the decision of the Commonwealth Court of

Pennsylvania (No. 647 C.A. 1989), entered on January

8. 1990. which aftirmed Petitioner’s criminal conviction.

This decision was rendered the final pronouncement of

the state court of last resort by a per curiam order of the

Supreme Court of Pennsylvania, entered on July 2.

1990, which denied Petitioner's timely application for

discretionary appeal.

Richard L. Caplan, Esquire

CAPLAN & LUBER

1617 John F. Kennedy Blvd..,

Suite #1550

Philadelphia, Pennsylvania 19103

(215) 981-1313

\ttorney for Petitioner

PACKARD PRESS LEGAL DIVISION. 1617 JFK BOULEVARD, PHILA, PA. 19103 (215) 563-9000

THE QUESTION PRESENTED FOR REVIEW

Whether a penal provision of a Pennsylvania envi-

ronmental statute violates the Due Process Clause of the

Fourteenth Amendment to the United States Constitu-

tion when it imposes upon a corporate consignor of solid

waste vicarious criminal liability for the illegal disposi-

tion of that waste by the independent hauling contractor

that accepted it for shipment.

TABLE OF CONTENTS

Page

The Question Presented for Review.............. i

PII. a5. 6 can Ku ccaediniutcawieeeenteeaees 2

The Constitutional and Statutory Provisions In-

on , SEPOUE TTT CTE Tr eer ee he ae y

SRE GE TO GN «6k one kd Sinn ce canoe onn 4

Reasons for Granting the Writ................... 8

I. This Court should grant certiorari to settle

the question of whether the extension of

vicarious criminal liability to reach the con-

duct of an independent contractor retained

by a defendant violates due process of law,

as guaranteed by the Fourteenth Amend-

GRO ..n.0.6 6encceus eeu kaw deen ees 9

II. This Court should grant certiorari because

the public policy issues raised by Pennsyl-

vania’s expansion of the ambit of vicarious

criminal liability are of national scope..... 12

CII 5 ao 6a 6 0050000554 eee eee 14

APPENDIX

Opinion of the Commonwealth Court of Pennsylva-

nia dated January 8, 1990. .....cssccccccesss A-1

Opinion and Order of the Court of Common Pleas of

Lycoming County, Pennsylvania dated June 21,

i errr rrr re rrr rr yo A-10

Opinion and Order of the Court of Common Pleas of

Lycoming County, Pennsylvania dated October

BO, TS occ ccsccsnnckctasuaceeeeneeen A-19

Order of the Court of Common Pleas Court of

Lycoming County, Pennsylvania dated Decem-

a Oe Pr A-25

ii

TABLE OF CONTENTS — (Continued)

Page

Order of the Court of Common Pleas of Lycoming

County, Pennsylvania dated January 5, 1989. A-27

Order of the Superior Court of Pennsylvania dated

INS 66 bev 4 0568 4s cece ceeuees A-28

Order of the Commonwealth Court of Pennsylvania

I SO BE occ ctesecscccccvonses A-29

Order of the Supreme Court of Pennsylvania dated

ee ee A-30

Order of the Commonwealth Court of Pennsylvania

SS A-31

ili

TABLE OF AUTHORITIES

Cases: Page

Commonwealth v. Heck, 341 Pa. Super. 183, 491

A.2d 212 (1985), affd., 517 Pa. 192, 535 A.2d

PUP CP EE TOTS TES TTC ee CRETE Ter C er 5

Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d

ee snk endendassusk rank uacadsecsenus 12

United States v. Dotterweich, 320 U.S. 277, 64 S.

Ch. 136, GB L.. Bd. 48 (1943)... ccc cccccces 9,10

United States v. Georgetown University, 331 F.

ey | ee ee 11

United States v. Park, 421 U.S. 658, 95 S. Ct. 1903,

44 L. Ed.2d 489 (1975)..........0..000- 6, 9, 10

United States v. White Fuel Corporation, 408 F.2d

eet Cae Ge NS Shek bekedaesebakeeunates 11

United States v. Wiesenfeld Warehouse Company,

376 U.S. 86, 84 S. Ct. 559, 11 L. Ed.2d 536

SE Sed KES Ade dds eba cabana aeekeeeewe es 9

Constitutional Provisions:

Cras Gs GUIDING, FOV s Bhs ccicccccssecsdesen Ae

re rr a ee 5

Statutes:

Federal Food, Drug and Cosmetic Act, 21 U.S.C.

EE civecedsudebs sa ane che aveans lu

Be as STEED & nek ndcdsaceBeacavinens ee

Pennsylvania Solid Waste Management Act, 35 P.S.

er cu eae eedeacunweenucess 2

Es 6 rca 6 0d es eee ees ehawe unaces 7,8

RS rr rr rer 2

35 P.S. §6018.503(c),(d) and (e)(i) .............. 13

iv

TABLE OF AUTHORITIES — (Continued)

Statutes: Page

SP Fs Sa coh ices vnadcacsnsdens xe Pe

Be eerrerrrrrr re 2, 4-12, 14

Tak Dats QOD 6. vb cence sncséidesensceasesunea 4

No

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

WASTE CONVERSION, INC.,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COMMONWEALTH COURT

OF PENNSYLVANIA

Petitioner requests that a writ of certiorari be issued

to review the decision of the Commonwealth Court of

Pennsylvania (No. 647 C.A. 1989), entered on January

8, 1990, which affirmed Petitioner’s criminal conviction.

This decision was rendered the final pronouncement of

the state court of last resort by a per curiam order of the

Supreme Court of Pennsylvania, entered on July 2,

1990, which denied Petitioner’s timely application for

discretionary appeal.

2

OPINION BELOW

The opinion of the Commonwealth Court of Penn-

sylvania (App. A, infra, pp. A-1 to A-9 ) is reported at

Pa. Cmwith. 568 A.2d 738 (1989).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a) in that the decision below represents a

final judgment of conviction rendered by the highest

court of Pennsylvania in which a decision could be had,

and Petitioner’s challenge to the validity of the state

criminal statute involved is grounded upon its repug-

nance to the Constitution of the United States.

THE CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Petitioner challenges the constitutionality of Section

610(8)(i) of the Pennsylvania Solid Waste Management

Act, 35 P.S. § 6018.101 et seg. (hereinafter the “Act”),

which reads in pertinent part:

It shall be unlawful for any person or municipality

- > os *

(8) Consign, assign, sell, entrust, give or in any way

transfer residual or hazardous waste which is at any

time subsequently, by any such person or any other

person;

(i) dumped or deposited or discharged in any

manner into the surface of the earth or underground

or into the waters of the Commonwealth unless a

permit for the dumping or depositing or discharging

of such residual or hazardous waste has first been

obtained from the department [the Pennsylvania

Department of Environmental Resources]; [empha-

sis added].

35 P.S. § 6018.610(8)(i)

3

“Person” is Gcfined within the Act in Section 103 as

follows:

“Person.” Any individual, partnership, corporation,

association, institution, cooperative enterprise, munici-

pal authority, Federal Government or agency, State

institution and agency (including, but not limited to, the

Department of General Services and the State Public

School Buildings Authority), or any other legal entity

whatsoever which is recognized by law as the subject of

rights and duties. In any provisions of this act prescrib-

ing a fine, imprisonment or penalty, or any combination

of the foregoing, the term ‘person’ shall include the

officers and directors of any corporatien or other legal

entity having officers and directors.

35 P.S. § 6018.103

The maximum penalty, which can be assessed

against a corporation upon conviction for violating Sec-

tion 610(8)(i) of the Act, is defined in Section 606(b) as

follows:

Any person other than a municipal official exercis-

ing his official duties who violates any provision of this

act, any rule or regulation of the department, any order

of the department, or any term or condition of any

permit, shall be guilty of a misdemeanor of the third

degree and, upon conviction shall be sentenced to pay a

fine of not less than $1,000 but not more than $25,000

per day for each violation or to imprisonment for a period

of not more than one year, or both.

35 P.S. § 6018.606(b)

Petitioner asserts that Section 610(8)(i) of the Act,

both on its face and as applied to the facts found by the

trial court, violates the Due Process Clause of Section 1

of the Fourteenth Amendment to the United States

Constitution, which provides in pertinent part: “*** nor

shall any State deprive any person of life, liberty, or

property, without due process of law.” U.S. CONST.

amend. XIV, § 1.

4

STATEMENT OF THE CASE

Petitioner is a corporation* which operates a permit-

ted, hazardous and non-hazardous, industrial waste

treatment and temporary storage facility situated in

eastern Pennsylvania. In September, 1987, Petitioner

hired Wills Trucking Company (hereinafter “Wills”), an

Ohio based hauling contractor both legally and opera-

tionally unaffiliated with Petitioner, to transport a truck-

load of non-hazardous solid waste to a Michigan landfill

for disposal. Petitioner had used Wills to perform com-

parable waste transportation services on many prior

occasions without incident.

While traversing a mountainous region of central

Pennsylvania, Wills’ truck experienced some difficulty

in negotiating a hill.! Wills’ driver backed the truck to

more level ground and endeavored to redistribute the

load. In the process he raised the truck bed. The tailgate,

which he claimed came unlatched as a result of a loss of

air pressure, opened, and a substantial amount of the

* Petitioning corporation’s parent company is Stout Environ-

mental, Inc. of Thorofare, New Jersey.

1. Although it was stipulated at trial that the gross weight of

the full truckload of waste, as measured by Petitioner’s uncertified

axle scale, exceeded by from 1,500 to 3,500 pounds the 80,000

pound gross highway vehicle weight limit applicable in Pennsylva-

nia, the Commonwealth Court of Pennsylvania correctly ignored

this irrelevancy in rationalizing its challenged affirmance of Peti-

tioner’s criminal conviction. Section 610(8)(i) demands no proof of

conduct by the accused other than that such “person” have

transferred waste which is later illegally handled by “any other

person”. Furthermore, the stipulated facts, which comprise the trial

record, confirm that Wills’ driver accepted the shipment without

comment with knowledge of the truck’s apparent gross weight,

despite the fact that legal responsibility for operating an overweight

vehicle in Pennsylvania rests solely with the vehicle’s owner/ope-

rator. 75 P.S. 4901(a). Finally, there is no evidence in the trial

record that the sudden release of the truck’s tailgate, which the

driver claimed to have allowed waste to spill to the ground, was

proximately caused by the weight of the load as opposed to an

unpredictable equipment malfunction.

5

waste slid out onto the roadside. Without notifying

anyone, he secured the tailgate and drove on to the

Michigan landfill, where the balance of the load was

legitimately disp»sed.

Approximateiy one week later, Pennsylvania envi-

ronmental authorities wete able to trace the origins of

the spill to Petitioner. Within twenty-four hours of

receiving notice of the situation, Petitioner voluntarily

cleaned up the illegally discharged waste.

Wills and its driver were criminally charged under

the Act, by the Environmental Crimes Section of

Pennsylvania’s Office of the Attorney General, with

illegal waste dumping. Petitioner was _ separately

charged with violation of Section 610(8)(i) of the Act as

a misdemeanor solely because it had been the consignor

of the original waste shipment. It is the constitutionality

of this unprecedented imposition of vicarious criminal

accountability that Petitioner respectfully asks this

Court to review.

Petitioner filed a timely motion with the Lycoming

County Court of Common Pleas (hereinafter the “trial

court”) to quash the criminal information and to declare

Section 610(8)(i) of the Act unconstitutional on the

grounds that, both facially and as applied, it violates the

Due Process Clause of Section 1 of the Fourteenth

Amendment to the United States Constitution and Arti-

cle I, Section 9 of the Pennsylvania Constitution.? In its

opinion in support of its order denying the motion, (App.

B, infra, pp. A-10 to A-18), the trial court was not

deterred by its recognition that Wills, in its relationship

to Petitioner, was an independent contractor rather than

an agent or employee amenable to Petitioner’s supervi-

sion or control. (App. B, infra, p. A-17).

2. The phrase “law of the land,” which appears in Article 1,

Section 9 of the Pennsylvania Constitution, is legally equivalent to

“due process of law” as that phrase appears in the United States

Constitution. Commonwealth v. Heck, 341 Pa. Super. 183, 491 A.2d

212 (1985), affd., 517 Pa. 192, 535 A.2d 575 (1987).

6

Petitioner and the Commonwealth then agreed to a

bench trial upon a stipulated evidentiary record. That

record includes no evidence that Petitioner conspired in

or had reason to anticipate Wills’ mismanagement of the

waste shipment. Furthermore, Petitioner had no warn-

ing that Wills’ equipment might prove incapable of

handling the shipment under normal road conditions.

The account by Wills’ driver (who was not a co-

defendant) of the extraordinary circumstances, which

allegedly gave rise to the illegal dumping, was intro-

duced into evidence through the stipulated testimony of

the government investigator who had interviewed him,

presumably because, as an out of state resident, the

driver would have otherwise been unavailable to the

prosecution.

At trial, Petitioner renewed its constitutional objec-

tion to Section 610(8)(i) of the Act and argued in

defense, under the authority of United States v. Park,

421 U.S. 658, 95 S. Ct. 1903, 44 L. Ed.2d 489 (1975),

that the government had failed to prove beyond a

reasonable doubt that it had been objectively possible for

Petitioner to have prevented Wills’ criminal acts. (App.

C, infra, p. A-21). In its opinion and order entering a

guilty verdict on the misdemeanor charge (App. C,

infra, pp. A-19 to A-24), the trial court rejected this

defense on the unprecedented ground that it was not

available to a corporate defendant. (App. C, infra, p.

A-22). Petitioner then filed a timely post-verdict motion

in which it recapitulated the legal arguments advanced,

both before and during the trial, attacking the legitimacy

of its conviction. These included the constitutional in-

firmity of the vicarious criminal liability provision of the

Act as an abridgment of fundamental due process. On

December 27, 1988, the trial court entered an order

without opinion denying Petitioner’s motion. (App. D,

infra, pp. A-25 to A-26).

On January 10, 1989, the trial court entered an

order sentencing Petitioner to pay a fine of $10,000

z

pursuant to Section 606(b) of the Act which, inter alia,

authorizes the imposition of fines of from $1,000 to

$25,000 per day for each day that a violation of the

environmental laws (by a third party in this case)

remains unabated, whether known to the defendant or

not. (App. E, infra, p. A-27). The trial court stayed

payment of the fine pending the outcome of an antici-

pated appeal.

Petitioner perfected a timely appeal of its conviction

to the Superior Court of Pennsylvania, which normally

adjudicates criminal appeals. That court transferred the

cause, sua sponte, to the Commonwealth Court because

the constitutionality of a state statute appeared to be in

issue. (App. F, infra, p. A-28).

The Commonwealth Court granted the Pennsylva-

nia Chamber of Business and Industry leave to intervene

as amicus curiae on Petitioner’s behalf. (App. G, infra, p.

A-29). The Pennsylvania Department of Environmental

Resources was permitted to intervene in support of the

Commonwealth. Both amici filed briefs. Petitioner’s

brief reaffirmed the due process challenge to Section

610(8)(i) of the Act, as an unconscionable extension of

the ambit of vicarious criminal liability. It also asserted

that the trial court erred in rejecting out of hand

Petitioner’s objective impossibility defense. Finally, Pe-

titioner advanced the public policy argument that the

chilling commercial impact of the vicarious liability

provision defeated the legislative intent to foster re-

source recovery and private management of waste ex-

pressly recited in the Act. 35 P.S. 6018.102(2) and (11).

3. The legislature hereby determines, declares and finds that,

since improper and inadequate solid waste practices create public

health hazards, environmental pollution, and economic loss, and

cause irreparable harm to the public health, safety and welfare, it is

the purpose of this act to:

(2) Encourage the development of resource recovery as a

8

On January 8, 1990, after abbreviated oral argument

on November 15, 1989, the en banc Commonwealth

Court entered an order (with supporting opinion) affirm-

ing Petitioner’s conviction. (App. I, infra, p. A-31).

Petitioner then filed a timely application to the Pennsyl-

vania Supreme Court for discretionary review of the

Commonwealth Court decision based upon the same

constitutional issues. On July 2, 1990, the Supreme

Court denied the application per curiam without opin-

ion. (App. H, infra, p. A-30). This Petition followed.

REASONS FOR GRANTING THE WRIT

In this case, the highest appellate court of Pennsyl-

vania available to speak on the issue has sustained the

federal and state constitutionality of a statutory provision

which extends the basis of vicarious criminal liability to

include, for the first time, the acts of independent

contractors and other third parties legally unrelated to

the defendant. Section 610(8)(i) of the Act, both on its

face and as applied to the facts of this case, abandons the

indicia which have traditionally been relied upon to

rationalize the imputation of the criminal conduct of one

person to another. It does not require the government to

prove criminal intent, scienter, conspiracy, complicity or

negligence on the part of the vicariously accused to

obtain a conviction.

Petitioner’s conviction was not predicated upon ev-

idence that it aided and abetted Wills’ active criminal

behavior or that it actually anticipated or reasonably

NOTES (Continued)

means of managing solid waste, conserving resources, and supply-

ing energy;

* *

(11) Utilize, wherever feasible, the capabilities of private en-

terprise in accomplishing the desired objectives of an effective

comprehensive solid waste management program.

35 P.S. § 6018.102.

9

should have anticipated the anomalous outcome.

Rather, the mere fact that Petitioner initially placed

waste in the stream of commerce exposed Petitioner to

substantial criminal penalties based solely upon the

illegal conduct of a third party subsequent in the chain

of custody of that waste. Section 610(8)(i) of the Act

held Petitioner accountable for a bizarre transgression

by a third party who was neither legally nor practically

responsive to Petitioner’s supervision or control.

I

This Court should grant certiorari to settle the

question of whether the extension of vicarious crim-

inal liability to reach the conduct of an independent

contractor retained by a defendant violates due pro-

cess of law, as guaranteed by the Fourteenth Amend-

ment.

Petitioner submits that this result is unprecedented

in United States jurisprudence. No decision by this

Court or any other federal or state appellate tribunal has

ever sustained so attenuated a foundation for criminal

conviction. Even in matters of public welfare and safety,

in which the government enjoys the most unbridled

exercise of its police powers, this Court has refused to

sanction vicarious criminal accountability unless the

defendant stands in a responsible relationship to the

active wrongdoer(s).

In those few cases in which this Court has hereto-

fore addressed the propriety of holding one party crimi-

nally answerable for another’s conduct, it has never

been called upon to affirm a conviction where the

defendant lacked either the legal right or the practical

means of preventing or mitigating the harm caused by

the primary lawbreaker. The seminal case of United

States v. Dotterweich, 320 U.S. 277, 64S. Ct. 134, 88 L.

Ed. 48 (1943), and its progeny, United States v. Wie-

senfeld Warehouse Company, 376 U.S. 86, 84S. Ct. 559,

11 L. Ed.2d 536 (1964), and United States v. Park, 421

10

U.S. 658, 95 S. Ct. 1903, 44 L. Ed.2d 489 (1975), clearly

demonstrate this Court’s sensitivity to the constitutional

limits of imputed criminal liability. In these cases, the

Court affirmed convictions of corporate presidents or

sole proprietors for absolute liability offenses committed

by their commercial enterprises under the Federal Food,

Drug and Cosmetic Act, 21 U.S.C. 331(a) and (k)

respectively. The Court held these officer/managers

accountable for crime attributable to their own employ-

ees or agents only because “by virtue of their managerial

positions or other similar relation to the actor [they]

could be deemed responsible for its commission.”

United States v. Park, supra, 95 S. Ct. at 1911.

This Court has never wavered from this salutary

principle, which is akin to respondeat superior in tort.

Never has it seen fit to stretch the limits of vicarious

accountability to include the criminal acts of indepen-

dent contractors, whose employees are not normally

amenable to control by the parties who retain them.

Petitioner submits that Section 610(8)fi) of the Act

represents the first state statute to attempt this. There-

fore, its constitutionality is inherently suspect.

The restrained reach of this Court’s relevant prece-

dents is not surprising in light of its historic imputation

of pivotal significance to the defendant’s legal responsi-

bility and concomitant power to prevent the actual harm

caused by the third party:

[I]n cases decided after Dotterweich, the Courts of

Appeals have recognized that those corporate agents

vested with the responsibility, and power commen-

surate with that responsibility, to devise whatever

measures are necessary to ensure compliance with

the Act bear a responsible relationship to or have a

responsible share in, violations. [emphasis added;

citation omitted to representative federal appellate

decisions marshalled in Footnote 14].

United States v. Park, supra, 95 S. Ct. at 1911.

11

The maxim that vicarious criminal responsibility

must be conditioned upon a realistic opportunity to

exercise control over third party behavior also finds

expression in lower court decisions such as United

States v. Georgetown University, 331 F. Supp. 69

(D.D.C. 1971). In that case, the acts of defendant’s own

employee, which caused a water pollution incident, were

deemed insufficient to sustain defendant’s criminal con-

viction for an absolute liability federal offense because

the employee was under the temporary, exclusive super-

vision of an independent contractor when the violation

occurred. The United States Court of Appeals for the

First Judicial Circuit cited this well reasoned opinion

with favor in United States v. White Fuel Corporation,

408 F.2d 619, 624 (1st Cir. 1974).

Petitioner submits that the plain meaning of Section

610(8)(i) of the Act requires no link between a defen-

dant and the “person”, for whose conduct that defendant

may be calied to account, other than participation by

both in the chain of custody of the same waste. There

need be no “responsible relationship” between defen-

dant and criminal actor. In fact, the Act’s vicarious penal

provision does not require that defendant and actor have

actually dealt with or have known one another. Were

Petitioner to have consigned waste to a hauler who, in

turn, delivered it to a treatment facility which then sent

it to a Pennsylvania landfill of its own choosing, which

ultimately managed that waste in violation of the Act,

Petitioner could have been criminally charged under

Section 610(8)(i) with the landfill’s transgression. This

hypothetical dramatizes the statutory irrelevance of a

defendant’s lack of knowledge of the identity of the

perpetrator or the nature and onset of its illege: act(s).

In the instant case, Petitioner was unable to

promptly mitigate the harm, and thereby reduce its

exposure to substantial per diem fines under Section

606(b) of the Act, because it did not learn for seven days

of the independent hauler’s illegal dumping of the waste

12

at a remote location. That Section 610(8)(i) of the Act

facilitates criminal convictions predicated upon conduct

over which the accused may have no practical control

and about which they may lack actual knowledge rep-

resents the crux of the constitutional issue presented by

this case.

II

This Court should grant certiorari because the

public policy issues raised by Pennsylvania’s expan-

sion of the ambit of vicarious criminal liability are of

national scope.

This Court could reasonably choose to grant review

of the aberrational appellate decision below solely be-

cause it represents a radical departure from established

federal precedent which restricts the scope of vicarious

criminal liability.* However, important public policy

considerations also militate in favor of judicial scrutiny

at the highest level of Pennsylvania’s unique statute.

If Section 610(8)(i) of the Act is deemed to be

constitutional, businesses that generate or handle solid

waste in the normal course will be hesitant to operate in

Pennsylvania (or any other state, for that matter, which

adopts Pennsylvania’s statutory model) for fear of being

convicted of strict liability offenses on purely vicarious

grounds. The interstate movement of waste materials,

whether intended for reuse, recycling or ultimate dis-

posal, will be impeded because the challenged provision

of the Act supports the prosecution of out-of-state waste

4. That decision also deviates markedly from the Supreme

Court of Pennsylvania’s pronouncement on the subject in Common-

wealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), which

mirrors this Court’s relevant holdings in its refusal to extend

vicarious Criminal liability to reach the conduct of parties other than

a defendant’s own employees or agents.

13

generators whose wastes are mishandled in Pennsylva-

nia by others. In sum, the prospect of paying substantial

fines or serving prison terms, based upon third party

conduct that may not be preventable, could well prove

an overwhelming deterrent to virtually all commercial

activity within the jurisdiction by exposed enterprises.

Companies wishing to continue doing business in

Pennsylvania or shipping their waste into or through the

Commonwealth without assuming the risk will have but

one rational alternative: to eschew the employment of

waste management contractors in favor of maintaining

unilateral control of their own wastes indefinitely. While

this strategy might favor recycling and otherwise prove

environmentally beneficial in the long run, its economic

and regulatory feasibility on a large scale is questionable.

Existing waste management and disposal contractors

would face a shrinking market for their services. Most

state environmental agencies would find themselves

ill-equipped to independently regulate the activities of

every generator of waste regardless of size. Further-

more, most generators would unquestionably lack the

necessary technical expertise and tangible resources to

manage their own wastes “from cradle to grave”.

The ability of environmental prosecutors and the

courts to mitigate the chilling economic impact of un-

bridled vicarious criminal enforcement, by making in-

formed charging decisions based upon the facts and

circumstances and by imposing fair sentences upon

conviction, is also highly conjectural. Pennsylvania and

other states with strict solid waste laws routinely assess

the ethical integrity and compliance history of applicants

as a precondition to the issuance or renewal of waste

handling permits. One factor which plays a crucial role

in such review is the criminal record of the entity and

its key managers (with particular emphasis upon

prior environmental infractions). See, e.g., 35 P.S.

6018.503(c),(d) and (e)(i).

14

Given that state oversight agencies are frequently

vested with broad discretion in such matters, it is

conceivable that revocation or refusal to renew a waste

permit could rest solely upon a vicarious conviction. If,

for example, this were to occur in the instant case, it

would effectively transform a misdemeanor conviction

into a commercial “death sentence” because virtually all

activity in the waste management industry is conducted

by permit only. Furthermore, the loss of a permit in one

jurisdiction may reasonably be relied upon by the envi-

ronmental agencies of other jurisdictions as grounds for

independent disciplinary action, resulting in a domino

effect. The likelihood of a vicariously convicted enter-

prise surviving under such circumstances is slim.

CONCLUSION

In light of the profound public policy issues inherent

in a fair reading of Section 610(8)(i) of the Act and the

compelling constitutional question of first impression

which is presented by this case, Petitioner believes that

review of the decision below by the highest court of the

land is warranted. Petitioner respectfully requests that

its Petition for a writ of certiorari be granted.

CAPLAN & LUBER

, BAA E GA

RICHARD L. CAPLAN, ESQUIRE

Attorney for Petitioner,

Waste Conversion, Inc.

APPENDIX A

WASTE CONVERSION, INC.,

Appellant : IN THE

: COMMONWEALTH

v. : COURT

| : OF PENNSYLVANIA

COMMONWEALTH OF :

PENNSYLVANIA

No. 647 C.D. 1989

Appellee

BEFORE: HONORABLE JAMES CRUMLISH, JR..,

President Judge

HONORABLE DAVID W. CRAIG, Judge

HONORABLE JOSEPH T. DOYLE, Judge

HONORABLE JAMES GARDNER COLINS,

Judge

HONORABLE MADALINE PALLADINO, Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE DORIS A. SMITH, Judge

ARGUED: November 15, 1989

A-1

A-2

OPINION BY JUDGE PALLADINO

FILED: January 8, 1990

Waste Conversion, Inc., (Appellant) appeals from an

order of the Lycoming County Court of Common Pleas

which denied Appellant’s post-verdict motions and im-

posed a fine for Appellant’s violation of section 610(8)(i)

of the Solid Waste Management Act (Act).! We Affirm.

Appellant was convicted of violating the Act follow-

ing a non-jury trial based upon stipulated facts. The

pertinent facts are as follows. Appellant operates, a

hazardous and residual waste treatment, storage and

disposal facility in Montgomery County, Pennsylvania

under a Department of Environmental Resources

(DER) license. Appellant hired Wills Trucking Com-

pany of Ohio (Wills) to transport processed waste to

disposal facilities. Appellant’s employees loaded non-

hazardous waste into a truck owned and driven by Al

Cullenen (Driver) who was an independent hauler hired

by Wills. Driver was to transport the waste to a disposal

site in Michigan.

Appellant’s employees loaded Driver’s truck to

83,500 pounds.? Driver was traveling on Route 80 when

he became aware that state police were operating a

weigh station ahead. To avoid detection of the excessive

weight, Driver re-routed the truck to a back road.

Unable to negotiate the hill, Driver backed down the

road to a more level position. While attempting to

redistribute the load by raising the bed of the trailer, a

substantial amount of waste slid out of the truck and

onto the side of the road. With a lighter load, Driver was

able to negotiate the hill.

After an investigation by the Toxic Waste Investiga-

tion and Prosecution Section of the Office of Attorney

1. Section 610(8)(i) of the Solid Waste Management Act, Act

of July 7, 1980, P.L. 380, as amended, 35 P.S. §6018.610(8)(i).

2. This is 3,500 pounds more than the allowable weight limit

under Pennsylvania law.

A-3

General, the waste was traced tc Appellant. Appellant,

Driver and Wills were charged with violations of the Act.

Only Appellant’s case is before us.

Appellant filed a motion to quash the information

and a petition to declare section 610(8)(i) of the Act

unconstitutional. The trial court denied the motion and

the petition. At a non-jury trial Appellant was found

guilty of violating the Act. Appellant filed post-trial

motions again questioning the constitutionality of sec-

tion 610(8)(i) of the Act. These motions were denied. At

sentencing, Appellant was fined $10,000. Appellant has

filed this appeal.

Appellant raises the following issues: 1) whether the

trial court erred in finding section 610(8)(i) of the Act

constitutional; 2) whether the trial court’s interpretation

of the Act defeats the Act’s purpose; and 3) whether the

trial court erred in rejecting the “objective impossibility”

defense.

I. CONSTITUTIONALITY

Section 610(8)(i) of the act provides in pertinent

part as follows:

It shall be unlawful for any person or municipality

to:

(8) Consign, assign, sell, entrust, give or in any way

transfer residual or hazardous waste which is at any

time subsequently, by any such person or any other

person;

(i) dumped or deposited or discharged in any man-

ner into the surface of the earth or underground or

into the waters of the Commonwealth unless a

permit for the dumping or depositing or discharging

of such residual or hazardous waste has first been

obtained from the department.

A-4

The criminal penalties section of the Act under

which Appellant was convicted and sentenced, section

606, 35 P.S. §6018.606, states in pertinent part as

follows:

(b) Any person other than a municipal official ex-

ercising his official duties who violates any provision

of this act, any rule or regulation of the department,

any order of the department, or any term or condi-

tion of any permit, shall be guilty of a misdemeanor

of the third degree and, upon conviction, shall be

sentenced to pay a fine of not less than $1,000 but

not more than $25,000 per day for each violation or

to imprisonment for a period of not more than one

year, or both.

(i) With respect to the offenses specified in subsec-

tions (a), (b), (c) and (f), it is the legislative purpose

to impose absolute liability for such offenses... .

(j) With respect to the offenses specified in subsec-

tions (a), (b), (c), (d), (e), (f) and (g), it is the

legislative purpose to impose liability on corpora-

tions.

Appellant argues that Act could impose absolute

liability on a defendant for acts extraordinarily remote in

time and place from a defendant’s contact with the

actual perpetrator and therefore violates due process on

its face. However, this is not the case before us. To

engage in Appellant’s analysis would require us to

adjudicate the rights of parties not presently before the

court at the insistence of a party who does not have

standing to assert such rights. It is for this reason that

facial attacks on the validity of statutes are not generally

permitted. Commonwealth v. Heinbaugh, 467 Pa. 1, 354

A.2d 244 (1976). Therefore, we will confine this opinion

to the facts before us.

A-5

Appellant argues the ultimate waste dumper was an

independent contractor whose actions were beyond Ap-

pellant’s control. Without the ability to control the Dri-

ver’s conduct, Appellant argues that the Act violates

Appellant’s right to substantive due process.

In examining the constitutionality of a statute, there

is a strong and fundamental presumption that the leg-

islature has acted within constitutional bounds. Com-

monwealth v. Parker White Metal Co., 512 Pa. 74, 515

A.2d 1358 (1986). One challenging the constitutionality

of a legislative enactment bears a heavy burden of

demonstrating that it clearly and palpably violates some

specific mandate or prohibition of the constitution. Com-

monwealth v. Milkulan, 504 Pa. 244, 470 A.2d 1339

(1983).

Appellant relies upon Commonwealth v. Koczwara,

397 Pa. 575, 155 A.2d 825 (1959), cert. denied, 363 U.S.

848, (1960). In Koczwara, the supreme court vacated

the jail sentence of a tavern operator who was held

vicariously liable for the liquor code violations of an

employee. However, the court upheld a $500 fine im-

posed upon the tavern owner despite his due process

arguments. The court noted that the actual violations

were committed without the personal knowledge, par-

ticipation or presence of the defendant. Appellant relies

upon the following court language “[o]ur own courts

have stepped in time and again to protect a defendant

from being held criminally responsible for acts about

which he had no knowledge and over which he had little

control.” id. at 586, 155 A.2d at 830. Appellant asserts

that this language requires that a defendant must have

at least some degree of control over the actual perpetra-

tor to be held vicarously liable for his action.

An examination of the Act reveals that Appellant can

be deemed to have such control. A purpose of the Act is

to implement the will of the people as expressed in

Article I, section 27 of the Pennsylvania Constitution,

A-6

Commonwealth v. Parker White Metal Co., 512 Pa. 74,

$15 A.2d 1358 (1986), which provides:

Natural resources and the public estate. The people

have a right to clean air, pure water, and to the

preservation of the natural, scenic, historic and

esthetic values of the environment. Pennsylvania’s

public natural resources are the common property of

all the people, including generations yet to come. As

trustee of these resources, the Commonwealth shall

conserve and maintain them for the benefit of all the

people.

The Act is a comprehensive scheme designed to

protect the public from health and environmental haz-

ards caused by inadequate solid waste practices. Appel-

lant, as a corporation licensed to operate in this hazard-

ous business, owes the highest duty of responsibility to

insure that the citizens of this state are protected from

the dangers necessarily a part of waste disposal. This

was a principle reason for the legislature’s imposition of

strict vicarious liability. By undertaking the responsibil-

ity to dispose of waste, Appellant has assumed the duty

to ensure that it is completed as required by the Act.

Appellant cannot absolve itself of this reponsibility by

transferring it to independent contractors and claiming

that it has no control over them. We hold that, because

Appellant has assumed responsibility in the waste dis-

posal process, Appellant maintains control of the inde-

pendent contractors it hires for the purpose of its waste

disposal duties. Appellant’s failure to maintain control

cannot be used as a defense to avoid liability.

Appellant also relies upon United States v. George-

town University, 331 F.Supp. 69 (DC Cir. 1971). In

Georgetown, the University was prosecuted for violating

Federal Environmental Laws when a University em-

ployee, while working with an independent contractor to

test the University heating plant, caused a fuel oil

discharge into the Potomac River. The court ruled that

A-7

the University lacked sufficient control over the facilities

and mechanical apparatus to render it liable under the

statute. The court held that the independent contractor

had “borrowed” the University employee and therefore,

because the employee was acting as an agent of the

independent contractor, the University could not be held

vicariously liable for the employees actions.

Appellant notes the following language from Geor-

getown:

The Court is fully aware that the purpose of the

relevant statutes in the case at bar is to minimize

possible injuries to persons and property. Accord-

ingly, specific intent to violate them is not required.

The court believes that there can be no violation

unless the defendant is in a position to prevent such

damage. . . . When one is not in control of facilities

which lead to a violation of statutes like those in the

case at bar, the ultimate result or damage to persons

or property should be examined in light of the

congressional policy to impose strict liability upon

only those corporations or individuals who have it

peculiarly within their power through the exercise

of due diligence to protect the public. To stretch the

instant statutes to their logical extreme would be to

allow the government to criminally indict even the

most unrelated persons and business entities in-

stead of the real perpetrator.

331 F.Supp. at 73. Appellant asserts that, as with the

University, it had no control over the independent

contractor who dumped the waste and therefore can not

be held vicariously liable for violating the act.

Georgetown is not applicable in this case. First, the

court stated “this decision is limited to the peculiar facts

and circumstances of the instant case.” Jd. at 69-70.

Further, unlike the University, Appellant is the focus of

the regulatory scheme that imposes control over subse-

quent waste handlers in the disposal chain. Under this

A-8

analysis, we hold that Appellant had sufficient control

over the method of disposing of the waste after it took

possession to impose absolute vicarious liability.

Appellant next asserts that the $10,000 fine imposed

is too high for absolute vicarious liability. Appellant,

citing Koczwara, argues that only “light monetary fines”

are permissible for vacarious liability under the doctrine

of due process. In Koczwara, the court struck a jail

sentence but upheld a $500 fine for vicarious liability of

an individual tavern owner. Appellant argues that vicar-

ious liability penalties are therefore limited to the $300 to

$500 range.

Koczwara, was decided in 1959. The fine was levied

upon an individual. Here, trial court levied a $10,000

fine upon a corporation consistent with the Act. Cer-

tainly, we cannot be locked into the $500 fine imposed in

Koczwara for all time in all cases. Under the circum-

stances of this case, we hold that Appellant’s fine does

not clearly and palpably violate the due process clause.

Accordingly, we hold that, under the circumstances

of this case, Appellant’s right to due process was not

violated by the Act.

II. LEGISLATIVE INTENT

Appellant next argues that the trial court’s interpre-

tation of the Act frustrates the legislative intent. Appel-

lant argues that the purpose of the Act is to encourage

private enterprise to undertake solid waste manage-

ment. In support of this argument, Appellant relies upon

section 102(11) of the Act, 35 P.S. §6018.102(11) which

states in pertinent part as follows:

(11) Utilize, wherever feasible, the capabilities of

private enterprise in accomplishing the desired ob-

jectives of an effective comprehensive solid waste

management program.

The policy of encouraging private enterprise to

accomplish the objectives of the Act is consistent with

A-9

the imposition of absolute vicarious liability. We cannot

assume that private enterprise will refuse to dispose of

solid waste simply because it must take responsibility for

accomplishing safe and clean disposal under the Act.

III. IMPOSSIBILITY DEFENSE

Finally, Appellant argues that the trial court erred in

rejecting its “impossibility” defense. Appellant relies

upon United States v. Park, 421 U.S. 658 (1975) for the

proposition that strict criminal liability may only be

imposed where potential defendants enjoyed a respon-

sible relation to the situation. Park permitted corporate

agents to escape criminal liability by demonstrating that

they were powerless to prevent or correct the violation.

Appellant argues that there is no evidence to show that

it could have prevented the Driver from dumping the

waste improperly.

As we stated above, once Appellant undertook the

task of disposing of the waste, it had the obligation to see

that the task was completed in compliance with the Act.

The trial court did not err in rejecting the impossibility

defense.

Accordingly, the trial court is affirmed.

—_— ~

—— =

PALLADINO, Judge /c

Judge Colins dissents.

A-10

APPENDIX B

IN THE COURT OF COMMON PLEAS

OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH

v.

NO. 87-11,202

WASTE CONVERSION, INC.

OPINION AND ORDER

Defendant Waste Conversion, Inc. (WCI) has filed a

motion to quash the information and a petition to declare

Section 610(8)(i) of Pennsylvania’s Solid Waste Man-

agement Act unconstitutional. The defendant, a corpo-

ration, has been charged with violating the above men-

tioned section on September 14, 1987. It is contended by

the Commonwealth that on that date, defendant’s em-

ployees loaded with barrels of residual waste a truck

leased to Wills Trucking Company of Richfield, Ohio,

and driven by the truck’s owner, Al Cullenen. Cullenen

was to transport the material, originally generated by the

Marine Air Station at Camp Lejeune, North Carolina,

from WCI’s processing facility to a disposal site in

Dearborn, Michigan.

Defendant’s employees loaded and weighed Culle-

nen’s truck. The weight ticket showed that the load

weighed 83,500 pounds, 3,500 pounds over the maxi-

mum gross weight for this type of vehicle traveling on a

highway in Pennsylvania.

While traveling on Interstate 80, Cullenen realized:

(presumably through CB transmissions) that the Penn-

sylvania State Police were operating a weigh station. To

avoid the station, Cullenen rerouted his truck onto

Route 44. The alternate Route crosses a mountain

which Cullenen’s truck was unable to negotiate.

After discovering that he could not reach the top of

the mountain, Cullenen backed down to a more level

A-11

span of highway to redistribute his load. Debris sticking

through the tailgate prevented him from closing it, and

he backed onto the shoulder of the road and raised the

trailer bed to shift the debris away from the tailgate. As

he did so, the majority of the load slid out of the back of

the truck and onto the ground. He was still unable to

shut the tailgate, but was able to climb the mountain

since his load was considerably lighter. Cullenen com-

pleted his trip to Michigan but failed to advise the

authorities of the dumping incident.

Approximately one week later, the Department of

Environmental Resources and agents of the Office of the

Attorney General’s Bureau of Criminal Investigations

inspected the dumping site. It was learned that the

material had been processed at defendant’s plant. There-

after, the Attorney General’s Office brought charges

against Waste Conversion, Inc., Wills Trucking, and Al

Cullenen. We are concerned here with only the potential

criminal liability of the first of those parties.

Section 610(8)(i) of the Solid Waste Management

Act, under which defendant is charged, reads in perti-

nent part as follows:

“It shall be unlawful for an person or municipality

to:

(8) consign, assign, sell, entrust, give or in any way

transfer residual or hazardous waste which is at

anytime subsequently, by any such person or any

other person;

(i) dumped or deposited or discharged in any man-

ner into the surface of the earth . . . unless a permit

for the dumping or depositing or discharging of such

residual or hazardous waste has first been obtained

from the Department (of Environmental Resour-

ces).” 35 Pa. C.S.A. §6018.610(8)(i).

A-12

The Act also provides for criminal penalties for

violation of the above quoted section. The penalty rele-

vant to this case is contained in 35 Pa. C.S.A.

§6018.606(c), which reads in pertinent part:

“Any person... who violates any provision of this

Act...shall be guilty of a misdemeanor of the

second degree and, upon conviction, shall be sen-

tenced to pay a fine of not less than $2,500.00 nor

more than $50,000.00 for each violation or to im-

prisonment for a period of not more than two years,

or both.”

“Person” is defined to include corporations. A read-

ing of Section 610(8)(i) of the Act would therefore

project a legislative intent to hold criminally liable any

corporation which consigns or entrusts residual waste

which is later dumped or deposited on the earth without

a permit by the person to which it is consigned or by any

other person. In other words, there is a clear legislative

intent to impose absolute liability for violations of the

Act.

Defendant argues that the imposition of such abso-

lute liability without regard to some degree of criminal

culpability is inconsistent with the principles of due

process. The Pennsylvania Supreme Court has held

however, that criminal liability and the imposition of a

fine can be imposed in some circumstances without a

showing of criminal culpability and without offending

constitutional limitations of fairness.

In Commonwealth v. Koczwara, 397 Pa. 575, 155

A.2d 825, (1959), the Pennsylvania Supreme Court

upheld a fine but struck down a sentence of imprison-

ment as inconsistent with Section 9, Art. I of the

Pennsylvania Constitution. In the Koczwara case the

defendant, a liquor licensee, had been charged with

several violations of the Liquor Code. The charge was

based on vicarious liability on the part of the licensee for

the act of his employee. He was sentenced to a three

A-13

month jail term and a $500 fine under the repeat offense

section of the Liquor Code. In upholding the fine, the

Court said:

“Were this the defendant’s first violation of the

Code, and the penalty solely a minor fine of from

$100 to $300, we would have no hesitation in

upholding such a judgment. Defendant, by accept-

ing a liquor license, must bear this financial risk.

Because of a prior conviction for violations of the

Code, however, the trial judge felt compelled under

this mandatory language of the statute, §494(a), to

impose not only an increased fine of $500, but also a

three month sentence of imprisonment. Such sen-

tence of imprisonment in a case where liability is

imposed vicaricusly cannot be sanctioned by this

Court consistently with the law of the land clause of

§9, Art. I of the Constitution of the Commonwealth

of Pennsylvania.” Id. at 830.

Further, the court stated that:

“We found no case in any jurisdiction which has

permitted a prison term for a vicarious offense.

..- In holding that the punishment of imprisonment

deprives the defendant of due process of law under

these facts, we are not declaring that Koczwara

must be treated as a first offender under the Code.

He has clearly violated the law for a second time and

must be punished accordingly. Therefore, we are

only holding that so much of the judgment as calls

for imprisonment is invalid, and we are leaving in

tact the $500 fine imposed...under the subse-

quent offense section.”

Based on the Court’s reasoning in Koczwar, it is

clear that an employer may be found vicariously guilty of

certain offenses committed by an employee, and the

fines set forth in 35 Pa. C.S.A. §6018.606(c) would not

violate the employer’s due process rights.

A-14

A corporation, as a fictitious entity rather than a

natural person, cannot be punished by incarceration.

Commonwealth v. McIlwain School Bus Lines, Inc., 423

A.2d 413 Pa. Super (1980). Because the defendant here

is a corporation and the officers and directors of that

corporation have not individually been charged, incar-

ceration would not be a possible outcome of this case.

Accordingly, there is no possibility of a penalty being

imposed which would offend the holding of the Penn-

sylvania Supreme Court in Koczwara.

The defendant argues however that, because the

Act (35 Pa. C.S.A. §6018.103) defines “person” to in-

clude the officers and directors of a corporation, the

off'cers and directors of Waste Conversion, Inc. could be

charged and if charged, could, on the face of the statute,

be vulnerable to a punishment of incarceration for a

violation of §610(8)(i). The imposition of any such

penalty would offend the Koczwara holding as violating

due process concepts. Accordingly, defendant argues

that the Act must be stricken.

The set of facts postulated by the defendant is not

before the Court. Were the officers or directors of Waste

Conversion, Inc. individually charged with the violation

in question, we have no doubt that the Koczwara hold-

ing would require that any potential penalty imposed

upon them would be limited to fines. This particular

argument of defendant is rejected as not being pre-

sented by the facts of the case but were it presented in

this case, we state by way of dictum that the statute

could be salvaged by limiting the sentence to a fine.

The defendant next argues that this case can be

distinguished from the Koczwara case in that the party

causing the dumping was an independent contractor not

in the employ of the defendant Waste Conversion, Inc.

In Koczwara absolute liability had been imposed upon

the liquor licensee by reason of the conduct of his own

employee in violating the Liquor Code. Defendant relies

A-15

upon United States vs. Georgetown University, 331

F.Supp. 69 (D.C. D.C. 1971).

Georgetown University was prosecuted for violating

a federal environmental statute by discharging fuel oil

into a river. An independent contractor who was respon-

sible for testing the oil system of the University’s new

heating and cooling plant instructed a University em-

ployee to leave the oil pumps running thereby causing

the discharge. The District Court ruled that the Univer-

sity lacked “sufficient control over the facilities and

mechanical apparatus, so as to make them criminally

liable under the aforementioned statute.” Id. at 70.

Because the independent contractor had “borrowed” the

University employee, the employee was acting as an

agent of the independent contractor and the University

could not be held vicariously liable for the employee’s

actions. The Court ruled that to impose vicarious liability

on someone not in control of facilities which lead to a

statutory violation, would lead to the absurd result of

implicating unrelated individuals and business entities

rather than the real purpetrator. Id. at 73.

Defendant here analogizes the facts of the present

case to those in Georgetown. The defendant lost control

of the disposal operation when it hired the independent

contractor to haul the residual waste and entrusted the

substance to him. To permit a criminal action against

defendant would also, defendant argues, permi: the

Commonwealth to prosecute the United States Marine

Corps as the originator of the waste which dumped from

Cullenen’s truck.

In considering whether the Georgetown case is

cortrolling here, we must consider the type of legislation

involved and the competing constitutional interests

which are affected by it.

Public welfare statutes such as the Solid Waste

Management Act are enacted pursuant to the police

power of the state, the broadcast and most flexible of all

state government powers. In exercising its police power,

—————

A-16

the legislature may regulate certain industries, services

and other activities which affect public health, safety

and welfare. Such regulations inevitably involve difficult

issues concerning the balancing of individual interests

against those of the general public. Morissette vs.

United States, 342 U.S. 246, 253-54 (1952). Based on

the reasoning in Morissette, we must remember that not

only are we considering the rights of Waste Conversion,

Inc., but the rights of all the citizens of Pennsylvania as

well. Indeed, one of the purposes of the Solid Waste

Management Act as set forth in 35 Pa. C.S.A.

§6018.102(10) is to implement Article I, Section 27 of

the Pennsylvania Constitution:

“Natural resources and the public estate. The peo-

ple have a right to clean air, pure water, and to the

preservation of the natural, scenic, historic and

asthetic values of the environment. Pennsylvania’s

public natural resources are the common property of

all the people, including generations yet to come. As

trustee of these resources, the Commonwealth shall

conserve and maintain them for the benefit of all

people.”

While the Georgetown University case involved a

federal environmental statute which addressed some of

the same environmental concerns addressed by the

Pennsylvania Solid Waste Management Act, the defen-

dant, Georgetown University was a private institution

which was not a target of the heavy regulation involved

in the statute. Waste Conversion, on the other hand (and

unlike the United States Marine Corps facility, we might

add), is part of a heavily regulated waste disposal indus-

try. Had Waste Conversion chosen to transport the

residual waste in question with its own trucks and its

own employees, the Koczwara decision would clearly

hold that the Company could be held vicariously liable in

a criminal proceeding for the act of its employee in

dumping the waste as allegedly occurred in this case.

A-17

This liability would stand irrespective of the fact that the

company may have exercised consummate care in the

selection of its employees, the use of its equipment, the

method of loading the truck, training of its employees,

etc. The issue presented is whether the legislature can

prevent the company from avoiding that potential ac-

countability through the device of using independent

contractors to haul the residual waste.

The legislature, in devising its scheme for the han-

dling of hazardous and residual waste could fairly con-

sider the following: (a) the imperative of fixing respon-

sibility for the proper disposal of such wastes; (b) the

difficulties which can be encountered in assessing indi-

vidual responsibility when action is taken by a corpora-

tion; and (c) the ease with which corporate employees

could “wash their hands” of the often frustrating and

expensive burden of lawfully disposing of these wastes

by consigning them to contractors who may be willing to

provide attractive rates but little responsibility.

Given the critical threat to the health and welfare of

the general public represented by the unlawful dumping

of hazardous and residual waste, and indeed the consti-

tutional right of citizens of this Commonwealth to the

preservation of the quality of their environment, we hold

that it does not violate the fundamental fairness man-

date of the due process clause for a corporation engaged

in the waste processing business to be held vicariously

liable for the act of an independent contractor-hauler

who illegally dumps residual waste, to the same extent

that the corporation can be held vicariously liable for the

same illegal act by its own employees.

Given the above holding, we enter the following

Order.

A-18

ORDER

AND NOW, this 21st day of June, 1988, for the

reasons set forth in the foregoing discussion, it is OR-

DERED and DIRECTED that the defendant’s motions

to quash the information and to declare §610(8)(i) of the

Pennsylvania Solid Waste Management Act unconstitu-

tional are DENIED.

cc: Richard Caplan, Esq.

Gregory Abeln, Esq.

Court Administrator

Honorable T.C. Raup

Honorable Clinton W. Smith

Law Clerk (2)

Gary L. Weber, Esq.

A-19

APPENDIX C

IN THE COURT OF COMMON PLEAS

OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH

v. :

WASTE CONVERSION, INC. : NO. 87-11,202

OPINION AND ORDER

This case was tried non jury on July 20, 1988.

Defendant Waste Conversion, Inc. (WCI) was

charged with violating §610(8)(i) of the Pennsylvania

Solid Waste Management Act, 35 Pa. C.S.A.

§6018(8)(i), on September 14, 1987. On that date de-

fendant’s employees loaded barrels of residual waste

onto a truck leased to Wills Trucking Company of

Richfield, Ohio and driven by the truck’s owner, Al

Cullenen. Cullenen was to transport the material, orig-

inally generated by the Marine Air Station at Camp

Lejeune, North Carolina, from WCI’s processing facility

to a disposal site in Dearborn, Michigan.

Defendant’s employees loaded and weighed Culle-

nen’s truck. The weight ticket showed that the load

weighed 83,500 pounds, 3,500 pounds over the maxi-

mum gross weight for this type vehicle traveling on

Pennsylvania’s highways.

While traveling on Interstate 80, Cullenen realized

(presumably through CB transmissions) that the Penn-

sylvania State Police were operating a weigh station. To

avoid the station, Cullenen rerouted his truck onto

Route 44. The alternate route crosses a mountain which

Cullenen’s truck was unable to negotiate.

After discovering that he could not reach the top of

the mountain, Cullenen backed down to a more level

span of highway to redistribute his load. Debris sticking

through the tailgate prevented him from closing it, and

A-20

he backed onto the shoulder of the road and raised the

trailer bed to shift the debris away from the tailgate. As

he did so, the majority of the load slid out of the back of

the truck and onto the ground. He was still unable to

shut the tailgate, but was able to climb the mountain

since his load was considerably lighter. Cullenen com-

pleted his trip to Michigan, but failed to advise the

authorities of the dumping incident.

Approximately one week later, the Department of

Environmental Resources and agents of the Office of the

Attorney General’s Bureau of Criminal Investigations

inspected the dumping site. It was learned that the

material had been processed at WCI’s plant. Thereafter,

the Attorney General’s Office brought charges against

Waste Conversion, Inc., Wills Trucking, and Al Culle-

nen. Waste Conversion filed a motion to quash the

information and a petition to declare §610(8)(i) of the

Act unconstitutional. We denied defendant’s motions by

opinion and order dated June 21, 1988.

The parties agreed to a non jury trial of the case, to

be conducted by conference call; the Attorney General’s

Office doing so by Gregory Abeln, Esquire, and WCI

through its Vice President of operations, Randy R. Royer

and its counsel of record, Richard L. Caplan, Esquire.

The Court approved of conducting the trial in this

manner since the issues to be determined involved no

factual determinations, and because the potential sen-

tence for this corporate defendant would be limited to a

fine. The parties submited a stipulation as to the names

of the Commonwealth’s witnesses and the substance of

their testimony, and stipulted to the admission of exhib-

its which had been provided to the Court.

During the course of the trial, WCI and the Com-

monwealth agreed to add two elements to the stipula-

tion. They agreed that there exist no statements given by

any of the Commonwealth’s witnesses and no records

which suggest that WCI knew in advance that Cullenen

would illegally dispose of the waste; therefore, there was

A-21

no collusion to dispose of the waste illegally. Further, the

parties agreed that at no time when Cullenen was in

contact with WCI employees did he indicate that his

truck might be incapable of managing its load. By way of

explanation, counsel for the defendant stated that when

Cullenen traveled on Interstate 80, the truck could

handle the weight, even though it was overloaded.

At the conclusion of the evidence, WCI renewed its

petition to have §610(8)(i) of the Solid Waste Manage-

ment Act declared unconstitutional. In addition to its

previous argument that the imposition of absolute liabil-

ity without regard to some degree of criminal culpability

is inconsistent with the principles of due process, WCI

contends that one charged with an absolute liability

offense may raise as a defense impossibility to prevent or

correct the violation. In raising the impossibility defense,

WCI relies on United States v. Park, 421 U.S. 658, 95

S.Ct. 1903 (1975).

The Park case involved the assertion of criminal

liability against a managerial employee of Acme Mar-

kets, Inc. with respect to a violation of the Federal Food,

Drug and Cosmetic Act. While affirming the conviction

in the Park case, the United States Supreme Court did

make the following analysis:

“The Act does not, as we observed in Dotterweich,

make criminal liability turn on ‘awareness of some

wrongdoing’ or ‘conscious fraud’. The duty imposed

by Congress on responsible corporate agents is, we

emphasize, one that requires the highest standard of

foresight and vigilance, but the Act, in its criminal

aspect, does not require that which is objectively

impossible. The theory upon which responsible cor-

porate agents are held criminally accountable for

‘causing’ violations of the Act permits a claim; that a

defendant was ‘powerless’ to prevent or correct the

violation . . . If such a claim is made, the defendant

A-22

has the burden of coming forward with the evi-

dence, but this does not alter the Government’s

ultimate burden of proving beyond a reasonable

doubt the defendant’s guilt, including his power, in

light of the duty imposed by the Act, to prevent or

correct the prohibited condition ...” Id. at 1912

(underlining added).

Where a Strict liability statute is involved, a mana-

gerial employee of a corporation clearly has the right to

assert the impossibility defense. We are not convinced,

however, that the defense is available to the corporation

itself. The potential consequences to a corporation of a

conviction of a criminal charge do not include incarcer-

ation, but rather are limited to the imposition of fines.

See e.g., Commonwealth v. Koczwara, 397 Pa. 575, 155

A.2d 825 (1959). Accordingly, the Courts have allowed

the imposition of absolute criminal liability on a corpo-

ration under circumstances where an individual could

not be convicted. Id. at 830.

The mere fact that the individual who is the direct

cause of the dumping or depositing of the residual waste

was an independent contractor does not constitute a

defense to Waste Conversion, Inc. As we stated in our

opinion of June 21, 1988:

“The legislature, in devising its scheme for the

handling of hazardous and residual waste, could

fairly consider the following:

(a) The imperative of fixing responsibility for the

proper disposal of such waste;

(b) The difficulties which can be encountered in

assessing individual responsibility when action is

taken by a corporation; and

(c) The ease with which corporate employees could

‘wash their hands’ of the often frustrating and

expensive burden of lawfully disposing of these

san ah ae seston

A-23

wastes by consigning them to contractors who may

be willing to provide attractive rates but little respon-

sibility.

Given the critical threat to the health and welfare of

the general public represented by the unlawful

dumping of hazardous and residual waste, and

indeed the constitutional right of the citizens of this

Commonwealth to the preservation of the quality of

their environment, we hold that it does not violate

the fundamental fairness mandate of the due pro-

cess clause for a corporation engaged in the waste

processing business to be held vicariously liable for

the act of an independent contractor-hauler who

illegally dumps residual waste, to the same extent

that the corporation can be held vicariously liable for

the same illegal act by its own employees.”

Were impossibility a defense in this case, the Court

would nevertheless hold that the defendant corporation

has been shown beyond a reasonable doubt to have had

the ability to prevent the violation complained of in this

case. WCI, through its employees, loaded the truck in

question. The quantity of waste exceeded by 3500

pounds the maximum gross weight for this type of

vehicle. The driver, learning that the Pennsylvania State

Police were actively enforcing the weight restrictions on

Route 80, attempted to circumvent the S‘ate Police

location by driving over a steep mountain road. As a

direct consequence, the spill occurred. While WCI could

not have foreseen the specific sequence of events which

ensued from the overloading of the truck in this case, it

was chargeable with knowledge that the weight restric-

tions are based upon both safety and highway mainte-

nance considerations; and that extreme care must be

exercised in the transportation of hazardous or residual

waste.

Given the above discussion, we enter the following

Order.

A-24

VERDICT

AND NOW, this 10th day of October, 1988, for the

reasons set forth in the foregoing discussion, the Court

finds that the defendant Waste Conversion, Inc. is guilty

of having violated §610(8)(i) of the Pennsylvania Solid

Waste Management Act, as alleged. The defendant is to

be scheduled for sentencing on the next available sen-

tencing date.

By The Cour¢,

Thomas C. Raap, P.J.

cc: Gregory B. Abein, Esq.

Richard L. Caplan, Esq.

Court Administrator

Honorable Thomas C. Raup

Honorable Clinton W. Smith

Honorable Kenneth D. Brown

Law Clerk (2)

Gary L. Weber, Esq.

premnts Dieanhroabaners 64

A-25

APPENDIX D

IN THE COURT OF COMMON PLEAS

OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH

VS. :

WASTE CONVERSION, INC. : NO. 87-11,202

ORDER

AND NOW, this 21st day of December, 1988, upon

consideration of the defendant’s Post Verdict Motion, it

is ORDERED and DIRECTED as follows:

The constitutional issues raised in the post verdict

motion have been addressed by the Court in its opinion

and order dated October 10, 1988 and are denied for the

reasons set forth in that opinion.

The arguments which are based upon the facts

presented in the stipluation of facts and the supplemen-

tal stipulation of facts are denied. A review of the

stipulation of facts which was filed under letter of July

18, 1988 and confirmed and supplemented at the non

jury trial of July 20, 1988 supports the recitation of facts

contained in the opinieg 2nd order of this Court of

October 10, 1988; specifically, it is clear from the

stipulation that Waste Conversion loaded the truck to a

weight which it knew or should have known exceeded

the limit.

A-26

Based upon the foregoing reasons, the defendant's

post verdict motion in the nature of a Motion in Arrest of

Judgment is Denied. Sentence is to be scheduled forth-

with.

Mleg,

Thomas C. Raup

cc: Gregory Abeln, Esq. .

Richard Caplin, Esq.

Court Administrator

Honorable Thomas C. Raup

Suite 1550, One Penn Center

1617 JFK Blvd.

Phila. 19103

Pe Et BA eas, ON Rs OE EMO ee

SULA Wahine 8 Pa aT Wy Bb

A-27

APPENDIX E

IN THE COURT OF COMMON PLEAS

OF LYCOMING COUNTY, PENNSYLVANIA

COMMONWEALTH : No. 87-11,202

vs. :

WASTE CONVERSION, INC. : Sentence

ORDER

NOW, January 5, 1989, sentence of the Court is that

the Defendant Corporation pay the costs of prosecution

and pay a fine in the amount of $10,000. The costs and

fine are to be paid to the Cost Clerk of Lycoming County.

The Cost Clerk is DIRECTED to forward the fine to the

Attorney General’s Office, attention of Greg Abeln, for

payment into the Solid Waste Abatement Fund.

The payment of the fine and costs is deferred

pending passage of the thirty days for filing a notice of

appeal. If a notice of appeal is filed, the payments will be

deferred pending the final outcome of the appeal.

By The Court,

T.C. Raup, P.J.

cc: Court Administrator Michael Harrington, Esq.

Cost Clerak Richard Caplan, Esq.

Gregory Abeln, Esq. Suite 1500

Deputy Attorney General One Penn Center

15th Floor 1617 JFK Blvd.

Strawberry Square Philadelphia, PA 19103

Harrisburg, PA. 17120

A-28

APPENDIX F

IN THE SUPERIOR COURT OF PENNSYLVANIA

SITTING AT PITTSBURGH

COMMONWEALTH OF )

PENNSYLVANIA )

Vv

Noe. 95 Harrisburg 1989

WASTE CONVERSION, INC.

Nee eee ee Se”

ORDER OF COURT

AND NOW, to-wit, this 30th day of March, 1989,

the above-captioned appeal is transferred sua sponte to

Commonwealth Court. 42 Pc.C.S. §762(a)(2).

By The Court;

A TRUE AND CORRECT COPY

ATTEST: 03/30/89

na 7a

DEPUTY PROTHONOTARY

A-29

APPENDIX G

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

NO. 647 C.D. 1989

WASTE CONVERSION, INC.,

Appellant

v.

COMMONWEALTH OF PENNSYLVANIA

ORDER

The Motion of the Pennsylvania Chamber of Busi-

ness and Industry to participate in this appeal as amicus

curiae is hereby granted, and it is further ordered that

| the said brief must be filed on or before Friday, May 26,

1989.

DATED: May 15, 1989

|

| BY THE COURT:

CK Hebean

CERTIFIED FROM THE REPORT

AND ORDER EXIT

MAY 15, 1989

CH STD

Deputy Prothonotary — Chief Clerk

a

Oe et ee tee a

A-30

APPENDIX H

SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

MILDRED E. WILLIAMSON 434 Main Capitol Building

DEPUTY PROTHONOTARY P.O. Box 624

Harrisburg, Pennsylvania 17108

(717) 787-6181

July 3, 1990

Richard L. Caplan, Esq.

Suite 1550

1617 J.F.K. Boulevard

Philadelphia, PA 19103

Re: Commonwealth v. Waste Conversion, Inc., Petitioner

No. 28 M.D. Allocatur Docket 1990

Dear Mr. Caplan:

This is to advise that the following Order has been

entered for the Petition for Allowance of Appeal filed for

the above-captioned matter.

“July 2, 1990, Petition Denied

Per Curiam”

Sincerely yours,

Mildred E. Williamson,

Deputy Prothonotary

——

MEW/spb (No. 647 C.D. 1989)

CC: Hon. Madaline Palladino Prothonotary’s Office

Hon. Thomas C. Raup Lycoming Co. — No. 87-11,202

Roseann B. Termini, Esq.

Chief Clerk - Commonwealth Court

4 orm Dose 0 lt eal

A-31

APPENDIX I

WASTE CONVERSION, INC.,

Appellant: IN THE

: COMMONWEALTH

V. : COURT OF

PENNSYLVANIA

COMMONWEALTH OF :

PENNSYLVANIA : NO. 647 C.D. 1989

Appellee

ORDER

AND NOW, Janaury 8, i990, the order of the

Lycoming County Court of Common pleas in the above

captioned matter is affirmed.

CERTIFIED FROM THE RECORD

JAN. 8, 1990

CL LL TIED

Deputy Prothonotary — Chief Clerk