Com. of PA v. A. Shoey ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
:
Appellant :
:
v. : No. 599 C.D. 2019
: Argued: December 10, 2019
Allen Shoey :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 9, 2020
The Commonwealth of Pennsylvania (Commonwealth) appeals from
the February 1, 2019 order of the Court of Common Pleas of York County (trial
court) finding Allen Shoey (Shoey) not guilty of violating West Manheim
Township (Township) Ordinance 04-2010 (Ordinance)1 governing on-lot sewage
disposal systems after holding the Ordinance was inapplicable to vacant property.
Upon review, we reverse and remand the matter to the trial court for further
proceedings consistent with the following opinion.
The facts are not in dispute. Shoey owns the property located at 119
Impounding Dam Road in the Township (the Property). The Property is improved
1
Ordinance 04-2010, which was enacted September 2, 2010, amended Article VIII of the
Township’s Code of Ordinances, On-Lot Disposal System (OLDS), §§207-28-42.
with a three-bedroom house, which is connected to an on-lot sewage disposal
system. In July 2018, the Commonwealth filed a non-traffic citation and summons
alleging that Shoey violated the Ordinance2 by failing to have the Property’s on-lot
septic disposal system inspected and certified within the prescribed timeframe.
Shoey pleaded not guilty to the charge.
In September 2018, the matter was heard by a Magisterial District
Judge (MDJ), who found Shoey guilty and ordered him to pay restitution, plus
fines and costs. Shoey timely appealed to the trial court. Before the trial court
heard the appeal, the Property was inspected pursuant to the Ordinance. In January
2019, the trial court held a de novo non-jury trial on the summary appeal.
2
In relevant part, the Ordinance provides:
A. Within two years from the effective date of this Part 2, all on-
lot sewage disposal systems, cesspools or dry wells within [the]
Township must be inspected and certified to be in proper working
order by the Township’s Sewage Enforcement Officer (SEO).
Thereafter, on-lot disposal systems must be inspected and certified
every four years. The SEO inspection shall be conducted in
accordance with all applicable state and federal regulations. All
costs associated with inspection, pumping and remediation shall be
the responsibility of the property owner; the fees associated with
the SEO services shall be established by resolution of the Board of
Supervisors.
B. The Township will send, via regular United States Mail, notice
to the property owner that the on-lot disposal system is due for
inspection and certification. Within 45 days from receiving notice
of the intent to inspect from the Township, the owner must
schedule an appointment with the SEO.
Township’s OLDS (On-Lot Disposal System) Management Ordinance §207-34. Reproduced
Record (R.R.) Item No. 3 at 10.
2
Heather Bair (Bair), the Township’s Code Enforcement Officer,
testified that the Township had mailed notices to Shoey in June 2013, December
2017, and April 2018, requesting compliance with the Ordinance’s inspection and
certification requirement. N.T. 1/30/193 at 27-28. Shoey did not respond. Id. Bair
testified that, in April 2018, the Township attempted to work with Shoey and his
attorney to schedule an inspection of the on-lot sewage disposal system pursuant to
the Ordinance. Id. at 28. The Township’s attempts to work with Shoey failed, and
the Township issued the July 2018 non-traffic citation for a summary offense
based on Shoey’s failure to timely comply with the Ordinance’s inspection and
certification requirement. Id. Bair testified that Shoey submitted documents to the
MDJ in which he claimed that the Property was unoccupied, and admitted that the
on-lot sewage disposal system was not functioning and had not functioned for 18
years. Id. at 29.
Douglas Stambaugh (Stambaugh), the Township’s SEO, testified that
his inspections of the Property in January 2019, revealed that the “septic tank
outlet was blocked with tree roots from an adjacent maple tree.” N.T. 1/30/19 at
12. Because of the intrusive tree roots, the septic tank’s water level was higher
than normal, but Stambaugh did not know the source of the water in the tank. Id.
at 12, 17. The tree roots also were growing into the leach field portion of the on-
lot sewage disposal system. Id. The on-lot sewage disposal system failed
inspection because of these malfunctions. Id. at 13.
Nathan Jefferson (Jefferson), an SEO certified by the National
Sanitation Foundation and the Pennsylvania Septage Management Association,
3
“N.T. 1/30/19” refers to the transcript of the January 30, 2019 trial court hearing, R.R.
Item No. 2.
3
was hired by Shoey to inspect the Property. N.T. 1/30/19 at 18. Jefferson testified
that the Ordinance requires “a serviceable septic tank and also an absorption
system, which we would call a drain field[.]” Id. at 19. Jefferson agreed with
Stambaugh’s conclusion that the on-lot sewage disposal system is malfunctioning
in its current state. Id. at 21. Jefferson further opined that repairing the system
could cost between $6,000 and $9,000, and a total replacement of the system could
cost between $10,000 and $25,000. Id. at 22-23, 24-25.
Shoey, who is 83 years old, testified that the Property had not been
occupied since 2000 and that he currently uses it exclusively for storage. N.T.
1/30/19 at 33-34. Shoey asserted that the well’s water pump is not currently
operational, and that no sewage has been discharged out of the Property since
2000. Id. at 34, 39. However, Shoey did not dispute Stambaugh’s and Jefferson’s
conclusion that the on-lot sewage disposal system is presently malfunctioning. Id.
at 33-34, 37. Shoey further testified that the residence is beyond repair and that he
considers it uninhabitable. Id. at 36.
The trial court ultimately determined that the Ordinance does not
apply to vacant property and acquitted Shoey of the charge, but ordered Shoey to
disconnect the Property from the existing on-lot sewage disposal system. In the
opinion filed in support of its order, the trial court stated, in relevant part:
[The Ordinance] covers the use of on-lot sewage
disposal systems. This section of the Ordinance applies
to “all persons owning any property in the Township
serviced by an on-lot sewage disposal system.” The
purpose of this Ordinance is to “provide for adequate
sewage treatment facilities and for the protection of the
public health by preventing the discharge of untreated or
inadequately treated sewage . . . permit the Township to
intervene in situations which are public nuisances or
4
hazards to the public health.” It is important to note that
there is no section in the Ordinance for disconnecting the
on-lot sewage disposal system [for] a property that is no
longer being used for continuous or periodic habitation[.]
Under the canons of statutory construction, “when
the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.” [1 Pa. C.S. §1921.] In
this case, the language of the Ordinance is clear; it
applies to properties that are “serviced by an on-lot
sewage disposal system.” The Definitions and word
usage section of the Ordinance does not specifically
define “serviced by,” we then analyze it by its traditional
definition. One of the definitions of “service” in Black’s
Law Dictionary is “the official work or duty that one is
required to perform.” The work that an on-lot sewage
disposal system performs is to collect and dispose of
discharged sewage in a safe and sanitary way. Therefore,
analyzing the Ordinance under the canon of statutory
construction, the Ordinance does not apply to the
[Property] owned by [Shoey] as it is vacant, there is no
sewage being discharged from it and it is not currently
being serviced by an on-lot sewage disposal system.
***
As the Ordinance does not apply to [Shoey], we
find him not guilty of violating [the Ordinance]. We
shall require that [Shoey] disconnect the [Property] from
the on-lot sewage disposal system.
Trial Court 2/1/19 Opinion at 2-4 (footnotes omitted). The Commonwealth
appealed to the Superior Court, and the case was subsequently transferred to this
Court.
On appeal, the Commonwealth argues that the trial court erred in its
interpretation of the Ordinance, incorrectly applied the rules of statutory
5
construction, and failed to consider the plain language and relevant statutory and
regulatory scheme. The Commonwealth argues that the Ordinance and the
Pennsylvania Sewage Facilities Act (Act 537),4 when read in pari materia, clearly
establish that the Ordinance governs all on-lot sewage disposal systems existing
within the municipality, without an exception for vacant or unoccupied properties.
Accordingly, Shoey must maintain the on-lot sewage disposal system at the
Property. The Commonwealth asks this Court to reverse the trial court’s decision
and to find Shoey guilty of violating the Ordinance.
Shoey counters that the trial court correctly held that the Property’s
septic system is not an “on-lot sewage disposal system” under the plain language
of the Ordinance. He argues that the trial court properly applied the law to the
facts of this case.5
“The interpretation of a statute or ordinance presents this Court with a
pure question of law, which is generally subject to plenary review.” Kohl v. New
Sewickley Township Zoning Hearing Board, 108 A.3d 961, 968 (Pa. Cmwlth.
2015). However, courts traditionally accord the agency charged with
administering the ordinance great weight and deference. In re Thompson, 896
A.2d 659, 669 (Pa. Cmwlth. 2006).
4
Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §§750.1-750.20a.
5
On June 11, 2019, Shoey filed a motion to quash the appeal, asserting that the
Commonwealth is unable to appeal his acquittal because of the prohibition against double
jeopardy. By July 19, 2019 order, this Court denied the motion to quash, finding the
Commonwealth has a right to appeal because the trial court’s ruling was based purely on a
question of law. In this appeal, Shoey maintains that the trial court’s acquittal was based on a
factual determination that there is no on-lot sewage disposal system in existence on the Property.
Having previously determined that the trial court’s decision was based purely on a question of
law, we will not accede to Shoey’s request that we reconsider our disposition of the issue.
6
The rules of statutory construction are applicable to ordinances. In re
Thompson, 896 A.2d at 669. The primary objective of statutory interpretation is to
determine the intent of the enacting legislation. Section 1921 of the Statutory
Construction Act of 1972 (Act), 1 Pa. C.S. §1921. A statute’s or ordinance’s plain
language generally provides the best indication of legislative intent, and, therefore,
statutory construction begins with an examination of the text itself. Malt
Beverages Distributors Association v. Pennsylvania Liquor Control Board, 918
A.2d 171, 176 (Pa. Cmwlth. 2007). Section 1903(a) of the Act states:
Words and phrases shall be construed according to the
rules of grammar and according to their common and
approved usage; but technical words and phrases and
such others as have acquired a peculiar and appropriate
meaning or are defined in this part, shall be construed
according to such peculiar and appropriate meaning or
definition.
1 Pa. C.S. §1903(a).
In the relevant part, the Ordinance states:
§207-28 Title; legislative authority; purpose.
***
B. [M]unicipalities have the power and duty to provide
for adequate sewage treatment facilities and for the
protection of the public health by preventing the
discharge of untreated or inadequately treated sewage.
***
C. The purpose of this Part 2 is to provide for the
inspection, maintenance and rehabilitation of on-lot
sewage disposal systems; to further permit the Township
to intervene in situations which are public nuisances or
7
hazards to the public health; and to establish penalties
and appeal procedures necessary for the proper
administration of a sewage management program.
§207-29 Definitions and word usage.
***
MANAGEMENT PROGRAM – The management
program shall encompass the entire area of [the]
Township serviced by sewage facilities or any other
alternative system which discharges into the soils of the
Township. All systems shall be operated under the
jurisdiction of the [Township’s] Board of Supervisors
regulating the subsurface disposal and/or alternate
systems, and other applicable laws of the Commonwealth
of Pennsylvania.
***
SEWAGE MANAGEMENT PROGRAM – A
comprehensive set of legal and administrative
requirements encompassing the requirements of this Part
2, the [Pennsylvania] Sewage Facilities Act, The Clean
Streams Law,[6] the regulations promulgated thereunder
and such other requirements adopted by the Board of
Supervisors to effectively enforce and administer this
Part 2[.]
§207-30 Applicability
From the effective date of this Part 2, its provisions shall
apply to all persons owning any property in the Township
serviced by an on-lot sewage disposal system and to all
persons installing or rehabilitating on-lot sewage disposal
systems.
6
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.
8
***
§207-34 Inspections.
A. Within two years from the effective date of this Part
2, all on-lot sewage disposal systems, cesspools or dry
wells within West Manheim Township must be inspected
and certified to be in proper working order by the
Township’s [SEO]. Thereafter, on-lot disposal systems
must be inspected and certified every four years. The
SEO’s inspection shall be conducted in accordance with
all applicable state and federal regulations. All costs
associated with inspection, pumping and remediation
shall be the responsibility of the property owner; the fees
associated with the SEO services shall be established by
resolution of the Board of Supervisors.
***
F. The Township’s authorized agent shall inspect
systems known to be, or alleged to be, malfunctioning.
Should said inspections reveal that the system is
malfunctioning, the Township shall take action to require
the correction of the malfunction[.]
***
§207-37 Malfunctions and rehabilitation.
A. No person shall operate and maintain an on-lot
sewage disposal system in such a manner that it
malfunctions. All liquid wastes and water softener
backwash, shall be discharged to a treatment tank. No
sewage system shall discharge untreated or partially
treated sewage to the surface of the ground or into the
waters of the Commonwealth of Pennsylvania unless a
permit to discharge has been obtained from DEP.
B. The Township shall issue a written notice of violation
to any person who is the owner of a property in the
9
Township which is found to be served by a
malfunctioning on-lot sewage disposal system or which is
discharging raw or partially treated sewage without a
permit.
***
§207-42 Violations and Penalties.
Any person failing to comply with any provision of this
Part 2 shall be subject to the summary offense penalties
of 35 P.S. §750.13 and, in addition thereto, may be
subject to the civil penalties of 35 P.S. §750.13a. Each
day following the forty-five-day scheduling period
provided in §207-34B hereof that the owner fails to make
arrangement for inspection with the Township SEO
and/or fails to have the on-site sewage system inspected,
certified, and pumped shall constitute a separate and
distinct offense.
OLDS §207-28-207-42 (emphasis added). R.R. Item No. 3 at 1, 3, 5, 9-10, 13, 16.
In this case, the trial court determined that the Ordinance does not
apply to the Property based on the dictionary definition of the noun “service” as
“the official work or duty that one is required to perform.” Trial Court 2/1/19
Opinion at 3. The trial court reasoned that an on-lot disposal system’s work is to
collect and dispose of sewage; if there is no discharged sewage, then the home is
not currently being “serviced by” an on-lot disposal system.
While this Court may consult dictionaries to ascertain the common
and approved usage of words, see Moonlite Café, Inc. v. Department of Health, 23
A.3d 1111, 1114 (Pa. Cmwlth. 2011), in this case the dictionary definition is not
the most helpful. The definition of “service” is imprecise as applied to the phrase
“serviced by” when considering the object of the sentence, “on-lot sewage disposal
system.” OLDS §207-30. Such a “technical phrase[] . . . [that has] acquired a
10
peculiar and appropriate meaning . . . shall be construed according to such peculiar
and appropriate meaning or definition.” Section 1903(a) of the Act, 1 Pa. C.S.
§1903(a). Over 20% of houses in the United States do not have access to a public
sewer and rely on a septic system.7 Whichever system a structure is connected to
is the system that “services” the structure. See Section 5 of Act 537, 35 P.S.
§750.5(a) (“Each municipality shall submit to the department an officially adopted
plan for sewage services for areas within its jurisdiction[.]”).
Further, where two parts of an ordinance relate to the same persons or
things, those parts are to be construed concurrently. Cozzone ex rel. Cozzone v.
Workers’ Compensation Appeal Board (PA Municipal/East Goshen Township), 73
A.3d 526, 536 (Pa. 2013). The trial court failed to read all provisions of the
Ordinance in pari materia. When read together, it is apparent that the Ordinance
covers all on-lot sewage disposal systems, regardless of the occupancy status of the
structure. See OLDS §207-29, R.R. Item No. 3 at 3 (“The management program
. . . shall encompass the entire area of [the] . . . other alternative system which
discharges into the soils of the Township. All systems shall be operated under the
jurisdiction of the [Township’s] Board of Supervisors regulating the subsurface
disposal and/or alternate systems[.]”). See also OLDS §207-30, R.R. Item No. 3 at
5 (“Part 2 . . . shall apply to all persons owning any property in the Township
serviced by an on-lot sewage disposal system and to all persons installing or
rehabilitating on-lot sewage disposal systems[.]”). Therefore, we conclude the trial
court erred in acquitting Shoey of the charge on the basis that the Property is not
subject to the provisions of the Ordinance.
7
See https://www.epa.gov/septic/septic-systems-overview (last visited February 6, 2020).
11
Accordingly, the trial court’s order is reversed and the matter is
remanded for the trial court to reconsider its disposition of Shoey’s summary
appeal, and to determine Shoey’s guilt or innocence under the applicable
provisions of the Ordinance. Commonwealth v. Arnold, 258 A.2d 885, 888 (Pa.
Super. 1969); Commonwealth ex rel. Borough of Dormont v. Pahlman, 179 A. 910,
911-13 (Pa. Super. 1935).
MICHAEL H. WOJCIK, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
:
Appellant :
:
v. : No. 599 C.D. 2019
:
Allen Shoey :
ORDER
AND NOW, this 9th day of March, 2020, the order of the Court of
Common Pleas of York County (trial court), dated February 1, 2019, is hereby
REVERSED. The matter is REMANDED to the trial court with the direction to
address anew, in accordance with the foregoing opinion, the summary appeal
before it.
Jurisdiction is RELINQUISHED.
__________________________________
MICHAEL H. WOJCIK, Judge