Opposition Brief — Waste Conversion, Inc. v. Pennsylvania

Supreme Court, U.S.

FILED

=

— sep 13 1990

No. 90-299 F. SP IR

| Cree —

in The on

Supreme Court Of The United States

October Term, 1990

Waste Conversion, Inc.,

Petitioner

Vv. .

Commonwealth of Pennsylvania,

Respondent

On Petition For Writ of Certiorari

To The Commonwealth Court of Pennsylvania

RESPONDENT'S BRIEF IN OPPOSITION

Ernest D. Preate, Jr.

Attorney General

Anthony Sarcione

Executive Deputy Attorney General

Director, Criminal Law Division

Robert A. Graci

Chief Deputy Attorney General

Appeals and Legal Services Section

Counsel of Record

Roseann B. Termini

Deputy Attorney General

Appeals and Legal Services Section

1600 Strawberry Square

Harrisburg, PA 17120

(717) 787-6348

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether section 610(8)(i) of the

Solid Waste Management Act of Penn-

sylvania, which authorizes the imposi-

tion of a fine upon a waste treatment

facility for the illegal dumping of

waste from that facility by a waste

hauler hired by the facility, violates

the Due Process Clause of the Fourteenth

Amendment to the Constitution of the

United States?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED. .....cccccccccee (i)

TABLE OF AUTHORITIES. ....cccccccees (iii)

STATEMENT OF THE CASE... ...ccccccecs 2

REASONS FOR DENYING THE WRIT....... 2

THE DECISION OF THE

COMMONWEALTH COURT OF

PENNSYLVANIA IS AN

UNEVENTFUL APPLICATION

OF THE SOLID

WASTE MANAGEMENT

ACT OF PENNSYLVANIA

TO THE FACTS OF THIS

CASE IN ACCORDANCE WITH

DUE PROCESS PRINCIPLES........ 5

ee rrr ee er re ee re

APPENDIX

Appeals from Courts of Common Pleas

2 Pe.C.8. B FESO Ca) <x cicawsans Al

Time for Argument; Argument Lists

WO. BeBe s BOSS 0 0 6406444 4a ee A2

(ii)

Cases

Commonwealth v. Koczwara,

397 Pa. 575, 155 A.2a

Pe ROMEO Ps eer ee esas es sb ssecacs 14

Liparota v. United States,

fe a) ee eee 7, 8

Morissette v. United States,

i ew Re ee SS ae ere ee 7

Smith v. California,

ee ES a... ) a 13

United States v. Balint,

— & & RS.) Bol > > ) 13

United States v. Dotterweich,

SS ESS a: ) ee 13,15

United States v. Georgetown

University,

331 F.Supp. 69

SE 'y 5 ere 17

United States v. International

Minerals and Chemical Corp.,

Se) SS ee 9

United States v. Johnson &

Towers, Inc.,

741 F.2d 662

(3rd Cir. 1984)

cert. denied,

room. Beem €2005)........0.- + ee

(111)

|

United States v. Mazurie,

cle S ee ee .. } ee

421 0.8. G3G° (2979)... 6. scwas

United States v. Powell,

5 ER 2 es } ee

United States v. Starr,

535 F.2d 512 (9th Cir. 1976).

ited Stat — celd

Warehouse Co.,

rp ae ee ee)! ere

United States v. Y. Hata and Co.,

535 F.2d 508 (9th Cir.),

cert. denied, 429 U.S.

ee Or es aE ead

Statutes

3 3 8 a | reece op

ee ee oe een

35 P.S. § 6018.610(8)(i).........

ve te wee TS. rere

Te BO.C.B. BS CUO iid ods Che Sek

a ee ee eee sf he ee a ee ee

os &6

a a ET TRIE LER Ne a

NO. 90-299

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

WASTE CONVERSION, INC.,

Petitioner

V.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE COMMONWEALTH COURT OF PENNSYLVANIA

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, Commonwealth of Pennsyl-

vania, (hereinafter "the Commonwealth")

respectfully requests that this Court

deny the petition for writ of certio-

rari. The opinion of the Commonwealth

Court of Pennsylvania is reported at

Pa.Commw. » $68 .A.2@ 7386. (1998).

(Pet. App. A, Al1-A9).

STATEMENT OF THE CASE

The Commonwealth of Pennsylvania

declines to proceed on the basis of

petitioner's statement of the case.

Accordingly, respondent incorporates by

reference the statement of facts in the

Opinion by the Commonwealth Court of

Pennsylvania. That opinion is reported

at Pa.Commw. P 568 A.2d 738

(1990). (Pet. App. A, A1l-A9). Contrary

to petitioner's assertion, this case was

not transferred sua sponte because the

constitutionality of a state statute

appeared to be in issue. Rather, the

Superior Court of Pennsylvania properly

transferred this case since the Common-

wealth Court of Pennsylvania has ex-

Clusive jurisdiction of all criminal

actions or proceedings for the violation

of any regulatory statute administered

by any Commonwealth agency. 42 Pa.c.S.

§ 762(a)(2). (Opp. Brief App. Al).

Petitioner also asserts oral argu-

ment before the Commonwealth Court was

abbreviated. The Commonwealth Court of

Pennsylvania conducted oral argument in

accordance with the Pennsylvania Rules

of Appellate Procedure, Chapter 23,

Sessions and Argument. Pa. R.A.P. 2315

(Opp. Brief App. A2). ;

Finally, although conceding that the

truck was loaded in excess of 80,000

pounds, petitioner claims that legal

responsibility for operating an over-

weight vehicle rests solely with the

vehicle's owner/operator under the Pen-

nsylvania Motor Vehicle Code 75 P.S.

[sic] § 490l(a). (Pet. at 4,n.1) This

case does not concern infractions of the

Pennsylvania Motor Vehicle Code. Peti-

tioner was not charged with a violation

of the Pennsylvania Motor Vehicle Code.

Moreover, petitioner is not blameless

for the incident of overloading the

vehicle. Petitioner's own employees

loaded the driver's truck to 83,500

pounds; that is 3,500 pounds’ greater

than the allowable weight limit under

Pennsylvania law. (Pet. App. A, A-2)

a eT 6 A NS IT I

REASONS FOR DENYING THE WRIT

The decision of the Commonwealth

Court of Pennsylvania is an_eun-

eventful application of the Solid

Waste Management Act of Pennsylvania

te the fects of this case in

accordance with due process

principles.

Petitioner suggests that Pennsyl-

vania decided an important constitu-

tional question. Respondent submits

that this case does not present a con-

stitutional question of any substance.

Moreover, petitioner fails to support

his contention that the decision is

repugnant to the United States Consti-

tution. See 28 U.S.C. § 1257(a).

The Pennsylvania State courts prop-

erly applied and followed settled prin-

ciples of law in resolving petitioner's

claim concerning the constitutionality

of section 610(8)(i) of the Solid Waste

Management Act of Pennsylvania (herein-

after "“Act”). This Court should not

grant review merely to reexamine the

validity of a state statute in the

absence of any conflict with federal law.

Petitioner claims that section

610(8) (i) of the Act, 350CtséP«WB.. §

6018.610(8) (i) violates due process

because of the imposition of criminal

liability on a corporate defendant for

the criminal acts of an “independent”

contractor. This simply is not the type

of issue that justifies review by this

Court. The state courts of Pennsylvania

properly framed the question flowing

from such a claim in light of this

Court's precedent and then applied the

same precedent in resolving petitioner's

Claim. The decision of the Commonwealth

Court of Pennsylvania does not conflict

with any federal precedent. Under the

specific circumstances of this case, the

imposition of a fine against a corpor-

ation does not violate due _ process.

ate

Nothing about this case requires review

by this Court.

Petitioner concedes that the Act is

a public welfare statute. The Act, en-

acted for the general benefit and wel-

fare of the public, contains punitive

absolute liability provisions. This re-

flects a recognition by our state law-

makers that unregulated activity in a

highly sophisticated and complex society

may cause widespread harm to an innocent

citizenry irrespective of an actor's

state of mind. Morissette v. United

States, 342 U.S. 246 (1952). The Moris-

sette Court, in construing public wel-

fare offense statutes, held that “the

guilty act alone makes out the crime."

Id. at 256.

Recently, in lLiparota v. United

States, 471 U.S. 419 (1985), this Court

reiterated its recognition of public

~~ ™

welfare offenses. This Court, in

Liparota, articulated that “Congress has

rendered criminal a type of conduct that

a reasonable person should know is sub-

ject to stringent public regulation and

may seriously threaten the community's

health or safety.” Jd. at 433. Clear-

ly, petitioner, which holds a permit to

engage in the environmental business in

Pennsylvania, had notice of the pro-

visions of the Act which prohibited its

conduct. Here, petitioner, who chose to

operate in the waste management busi-

ness, owes the highest duty of respon-

sibility concerning the proper disposal

of waste. Furthermore, this Court set

forth that where obnoxious waste ma-

terials are involved, the probability of

regulation is so great that anyone who

deals with them must be presumed to be

aware of the regulations.

(1971).

Petitioner urges this Court to re-

view this case based on hypothetical

conduct that the statutory language

could arguably embrace. This Court has

settled that facial attaches on the

validity of statutes are generally not

permitted. United States v. Powell, 423

U.S. 87 (1975); United States Vv.

Mazurie, 419 U.S. 544 (1975).

This casc turns solely upon an an-

alysis of the particular facts. The

Commonwealth Court of Pennsylvania cor-

rectly adjudicated petitioner's claims

by examining the specific conduct en-

gaged in by petitioner. Petitioner, a

corporation, through its employees, took

part in the illegal activity in contra-

vention of the Act by overloading

the waste hauler's truck. The vehicle

departed from petitioner's premises in

an overloaded condition.Clearly, these

practices and procedures by petitioner,

a regulated enterprise, inadequately

protected the public. The blame-

worthiness depends not only on the com-

mission of a crime but on the overall

reasonableness of corporate practices in

opposition to regulatory statutes.

The Commonwealth Court and Common

Pleas Court of Pennsylvania found that

the Act is a comprehensive scheme de-

signed to protect the public from health

hazards resulting from inadequate waste

disposal practices. The Commonwealth

Court specifically found that a major

reason for the legislature's imposition

of strict liability was to insure that

the people of this Commonwealth are pro-

fie

tected from the dangers associated with

waste disposal. (Pet. App., A-6). Cer-

tiorari should not be granted to recon-

sider the validity of the Act based on a

mere allegation of a due process vio-

lation.

Petitioner asserts that the Pennsyl-

vania state courts failed to consider

the chilling effect imposition of lia-

bility would have on business activity.

This is not a proper reason upon which

to grant the petition. The Act applies

to anyone in the waste management chain

from the time of generation if it occurs

in Pennsylvania throughout its handling

within Pennsylvania. The Act is a

“cradle to grave” regulatory scheme pro-

viding public’ protection against’ the

dangers of improper waste disposal. In

interpreting and applying it, the Com-

monwealth Court adhered to settled prin-

alio

ciples germane to public welfare offense

statutes. (Pet. App., A8-A9).

Petitioner asserts this Court could

grant review because the Commonwealth

Court opinion represents a radical dep-

arture from established federal prece-

dent. (Pet. at 12) Petitioner cites no

authority for this proposition.

It is well established that criminal

sanctions attached to regulatory stat-

utes intended to protect public health,

in contrast to statutes based on common

law crimes, are construed to effectuate

their regulatory purposes. See e.g.

United States v. Johnson & Towers, Inc.,

741 F.2d 662, 666 (3rd Cir. 1984), cert.

denied, Angel _v. United States, 469 U.S.

1208 (1985) (unlawful disposal of

hazardous waste under the Federal Re-

source Conservation and Recovery Act, 42

U.S.C. §§ 6901-6992(k); criminal pro-

alitie

vision not limited to owners and opera-

tors of waste facilities), citing,

United States v. Park, 421 U.S. 658,

672-673 (1975); Smith v. California, 361

U.S. 147, 152 (1959); and United States

v. Dotterweich, 320 U.S. 277, 280-81

(1943); United States v. Balint, 258

U.S. 250, 251-52 (1922). The court of

appeals in Johnson & Towers, enunci-

ated that limiting the class of poten-

tial defendants to owners and operators

of waste facilities undercuts the

purpose of the environmental legis-

lation. Id. at 667. Contrary to peti-

tioner's assertion, the Commonwealth

Court of Pennsylvania applied settled

principles of law.

Petitioner further asserts that this

decision deviates markedly from the Pen-

nsylvania Supreme Court decision of

atte

ii alle

Commonwealth v. Koczwara, 397 Pa. 575,

353 A.2G@ °825 (1959). Unequivocally,

this is not a valid rationale for this

Court to grant review. If the inter-

mediary appellate court failed to follow

Pennsylvania precedent, this is a ques-

tion of state law. Furthermore, con-

trary to this claim, both the Common-

wealth Court and the Common Pleas Courts

of Pennsylvania adhered to the principle

set forth in mmonw Vv Ww P

397 Pa. 595, 155 A.2d 825 (1959) con-

cerning the imposition of only a fine

when an individual is vicariously

liable. Petitioner was’ not charged as

an individual but rather as a corporate

defendant.

lfhe Supreme Court of Pennsylvania

had the opportunity to review peti-

tioner's claim of a due process viola-

tion and declined to do so.

aidinn

Petitioner claims another reason for

this Court to grant review is because of

the asserted availability of the impos-

Sibility defense. That the Commonwealth

Court of Pennsylvania declined to allow

this defense based on the facts of the

case is not an adequate basis for this

Court to hear this’ case. Petitioner

relies on United States v. Park, 421

U.S. 685 (i873). United states Vv.

Wisenfeld Warehouse Co., 376 U.S. 86

(1964) and United States v. Dotterweich,

320 U.S. 277 (1943). These cases are

easily distinguishable. Here, the

officers of petitioner corporation were

not charged.

More importantly, the decision of

the Commonwealth Court of Pennsylvania

does not conflict with these cases or

any other federal decisions. The def-

ense of impossibility asserted in those

cases specifically pertained to viola-

tions under the Federal Food, Drug and

Cosmetic Act and has rarely been satis-

fied. 21 U.S.C. § 2. we 2a See

e.g., United States v. Y¥. Hata and Co.,

535 F.2d 508, 511-12 (9th Cir.); cert.

denied, 429 U.S. 828 (1976); United

States v. Starr, 535 F.2d 512, 515-516

(9th Cir. 1976).

The Commonwealth Court of Pennsyl-

vania recognized that Park permitted the

affirmative defense of impossibility by

an individual defendant thereby avoiding

liability if it could be demonstrated

that -he was powerless to prevent the

violation. (Pet. App. A-9)

In addition to not involving an

individual defendant, petitioner, a

corporation, was far from powerless to

prevent the dumping. Petitioner had

every opportunity to control in the

choice of a waste transporter. The

_

illegal dumping was not remote. Rather

the chain of events that led to the il-

legal activity was clearly a foreseeable

consequence. The overloaded vehicle

which departed from Waste Conversion was

loaded in excess by the employees of

Waste Conversion. Thus, the impossi-

bility defense was properly rejected in

accordance with this Court's precedent.

Petitioner's reliance on United

States v, Georgetown University, 331

F.Supp. 69 (D. D.C. 1971) provides no

cognizable basis for this Court to grant

review. Unlike petitioner, the defen-

dant in Georgetown University was not

the subject of heavy regulation.

The Pennsylvania Commonwealth Court

did not decide an important question of

federal law. The Commonwealth Court of

Pennsylvania properly considered and

atta

resolved petitioner's claims. No

special or important reasons exist for

this Court to exercise its discretion

and grant the Petition.

CONCLUSION

For the foregoing reasons, the re-

spondent requests the Court to deny the

writ of certiorari.

Respectfully Submitted,

Ernest D. Preate, Jr.

Attorney General

Anthony Sarcione

Executive Deputy Attorney General

Director, Criminal Law Division

Robert A. Graci

Chief Deputy Attorney General

Appeals and Legal Services Section

Counsel of Record

Roseann B. Termini

Deputy Attorney General

Appeals and Legal Services Section

aliie

42 Pa.C.S. § 762. Appeals from courts

of common pleas

(a) General rule.-Except as_ pro-

vided in subsection (b), the Common-

wealth Court shall have exclusive

jurisdiction of appeals from final

orders of the courts of common pleas

in the following cases:

(2) Governmental and Commonwealth

regulatory criminal cases.-All crim-

inal actions or proceedings for the

violation of any:

(i) Rule, regulation or order of any

Commonwealth agency.

(ii) Regulatory, statute adminis-

tered by any Commonwealth agency

subject to Subchapter A of Chapter 5

of Title 2 (relating to practice and

procedure of Commonwealth agen-

cies). The term “regulatory stat-

ute” as used in this subparagraph

does not include any provision of

Title 18 (relating to crimes. and

offenses).

Al

Rule 2315. Time for Argument; Argument

Lists

(a) General Rule. Oral argument

is not a matter of right and will be

permitted only to the extent necessary

to enable the appellate court to acquire

an understanding of the issues pre-

sented. The presiding judge may termi-

nate the argument for any party not-

withstanding the fact that the maximum

time for argument specified in the ap-

plicable provision of these rules has

not been exhausted.

(b) Assignment to lists. Argument

lists shall consist of the regular list

and short list. All cases listed for

argument shall be placed upon the reg-

ular list unless all the parties upon

praecipe to the prothonotary of the ap-

pellate court request the case to be

placed upon the short list.

(c) Short list. The time for

argument of cases on the short list

shall be limited to not more than 15

minutes for each side. On days when

there are cases on both the short list

and on the regular list whose on the

short list shall be heard first and in

order of listing.

(d) Regular list. The time for

argument of cases on the regular list

shall be limited to not more than 30

minutes for each side. When there are

two or more appeals from the same order,

and in joint appeals, even though they

raise different or unrelated questicns,

counsel for all the appellants will be

A2

limited to a total of not more than 30

minutes for argument, and counsel for

all the appellees to a total of not more

than 30 minutes. ~The maximum time shall

be divided between or among the

appellants or between or among’ the

appellees respectively as they may

decide, subject to reduction as _ pre-

scribed in Subdivision (a) of this rule.

A2