Com. v. Fiore

• Decision Date: 20 September 1995
• Parties: COMMONWEALTH of Pennsylvania v. William FIORE, Appellant.
• Court: Pennsylvania Superior Court

Page 1185

665 A.2d 1185

445 Pa.Super. 401

COMMONWEALTH of Pennsylvania v. William FIORE, Appellant.

Superior Court of Pennsylvania.

Argued March 22, 1995.

Filed Sept. 20, 1995.

Harold Gondelman, Pittsburgh, for appellant.

John M. Popilock, Deputy Attorney General, Harrisburg, for Commonwealth, appellee.

Before ROWLEY, President Judge, and KELLY and HOFFMAN, JJ.

ROWLEY, President Judge:

Appellant, William Fiore, appeals from the trial court's order of August 18, 1994, denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. At the heart of this appeal is the fact that although appellant's employee and co-defendant, David Scarpone, has obtained from the courts of this Commonwealth a reversal of his conviction on the charge of operating a hazardous waste facility without a permit, appellant has failed to obtain the same relief. Such a result, appellant contends, deprives him of the due process of law and the equal protection of the laws and subjects him to cruel and unusual punishment.

Appellant maintains that, under the PCRA, we are empowered to grant the relief that he seeks in the form of a writ of coram nobis. After a careful review of the record and appropriate case law, however, we conclude that the relief sought by appellant is not available from this Court.

Appellant's argument rests on a complex procedural history. Appellant, owner of Municipal and Industrial Disposal Company (MIDC), a waste disposal facility, was charged with over 150 criminal and environmental law violations under the Solid Waste Management Act (SWMA), 35 P.S. § 6018.101 et seq., and related statutes. Scarpone, appellant's employee and general manager, was also charged with various violations, including conspiracy, 18 Pa.C.S. § 903, and obstructing the administration of law or other governmental function, 18 Pa.C.S. § 5101. Both individuals were charged with violating 35 P.S. § 6018.401(a), operating a hazardous waste disposal facility without a permit, ¹ the offense at issue in this appeal. This offense is a felony of the second degree pursuant to § 6018.606(f). ²

In February 1986, appellant and Scarpone were jointly tried by a jury in a trial limited to charges against both defendants. Both were found guilty of violating § 6018.401(a), among other charges. In a non-jury trial in July, 1986, appellant was tried on those charges which did not involve Scarpone. This trial also resulted in appellant's conviction of, inter alia, violating § 6018.401(a). As a result of both trials, appellant was convicted on a total of sixty counts. Post-trial motions were filed and denied.

A single proceeding was held on April 10, 1987, for the imposition of sentence on appellant's convictions resulting from both trials. Although appellant had been convicted on sixty counts, the trial court sentenced him on only the following three:

Count 1, Trial 1 (violating § 6018.401(a)): two and one-half to five years imprisonment, ten years probation, and a fine of $100,000;

Count 2, Trial 2 (violating § 6018.401(a)): two and one-half to five years imprisonment and ten years probation, to run consecutive to the sentence imposed at Count 1, and a fine of $100,000; and

Count 5, Trial 1 (perjury, 18 Pa.C.S. § 4902): one to two years imprisonment and five years probation, to run consecutive to the previous sentences.

The trial court explained that "I do not mean to minimize the other counts. We feel that this penalty is severe and we therefore direct the Clerk to enter no further penalty on all remaining counts." Notes of Testimony at 69-70. Appellant filed a motion to modify sentence, which was denied. Appellant then appealed to this Court.

On September 28, 1987, this Court, acting sua sponte and citing the Commonwealth Court's exclusive jurisdiction over appeals involving criminal proceedings arising from violations of regulatory statutes administered by Commonwealth agencies, 42 Pa.C.S. § 762(a)(2)(ii), transferred appellant's appeal to the Commonwealth Court. Appellant petitioned the Commonwealth Court to return his appeal to this Court. The Commonwealth Court granted appellant's petition on February 29, 1988, noting that the facts and issues of the present appeal were closely related to another appeal taken by appellant to this Court.

In an unpublished memorandum decision filed May 12, 1989, this Court affirmed appellant's judgment of sentence. Commonwealth v. Fiore, 391 Pa.Super. 634, 563 A.2d 189 (1989) 485 Pittsburgh 1988. Noting that appellant had raised 22 issues on appeal, all of which had been addressed by the trial court in a comprehensive opinion, the Court affirmed on the trial court's opinion. Because appellant had failed to include in his brief a statement pursuant to Pa.R.A.P. 2119(f) and the Commonwealth had objected to its omission, the Court also quashed the appeal insofar as it involved the alleged excessiveness of the sentence.

Appellant then petitioned the Supreme Court for allowance of appeal. In an order entered March 13, 1990, the Supreme Court denied the petition (No. 310 W.D. Alloc.Dkt.1989), thereby concluding appellant's direct appeal. ³

Meanwhile, Scarpone appealed to this Court from his judgment of sentence. As was the case with appellant, this Court transferred the appeal sua sponte to the Commonwealth Court. Scarpone did not seek to have the appeal returned to this Court.

In a decision filed on August 5, 1991, more than a year after the conclusion of appellant's direct appeal, the Commonwealth Court reversed Scarpone's conviction on the charge of causing and assisting in the operation of a hazardous waste facility without a permit, as well as his conviction on the related charge of conspiracy. Scarpone v. Commonwealth, 141 Pa.Commw. 560, 596 A.2d 892 (1991). The Court held that the Department of Environmental Resources had issued a valid permit to MIDC, the waste facility in question. The Court reasoned that the alteration of a monitoring pipe, although a clear violation of the condition of the permit, did not result in the operation of a new facility that did not have a permit. Because MIDC had a valid permit, the Court held, Scarpone could not be convicted of causing and operating a waste disposal plant without a permit. The Court confirmed Scarpone's conviction on the charge of obstructing the administration of law or other governmental function.

Scarpone petitioned the Supreme Court for allowance of appeal in order to challenge the affirmance of his conviction on the obstruction charge. The Commonwealth, seeking to challenge the reversal of Scarpone's conviction on the permit charge, filed a cross-petition for allowance of appeal. The Supreme Court granted both petitions.

Although appellant's direct appeal was already concluded, he filed with the Supreme Court an application for extraordinary relief (No. 9 W.D.Misc.Dkt.1992), asking the Court to take jurisdiction of his case pursuant to the Court's King's Bench powers, 42 Pa.C.S. § 726, and to consolidate it with Scarpone's appeal "so that a uniform interpretation in the Commonwealth of the Solid Waste Management Act and the penal provisions thereunder will be obtained." Application for Extraordinary Relief at 5. The Court denied the application on March 25, 1992.

In an opinion filed on December 15, 1993, the Supreme Court affirmed the Commonwealth Court's decision in Scarpone's case. Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d 1109 (1993). The Court explained the situation as follows:

We granted review in this case because of a conflict between the intermediate appellate courts in deciding the permit issue. Scarpone and his co-defendant Fiore were both charged with and found guilty of operating without a permit.

Scarpone took his appeal to the Commonwealth Court and that court found it impossible to conclude that the alteration of the pipe resulted in the operation of a new facility for which no permit had been issued. Although the facility may have acted in breach of the permit it held, the court would not hold that this was tantamount to acting without any permit.

Fiore took his appeal to the Superior Court and raised the issue by way of a sufficiency of the evidence argument. The Superior Court found the evidence sufficient and issued an unpublished memorandum opinion upholding his conviction of operating a hazardous waste facility without a permit. The two courts are clearly in conflict and this leaves the Attorney General's office ill-advised on how it should proceed in such situations.

We find that the Commonwealth did not make out the crime of operating a waste disposal facility without a permit against Mr. Scarpone under the statute. Simply put, Mr. Scarpone did have a permit. A more appropriate charge may have been brought under alternative provisions of the statute.... [T]he SWMA has specific provisions providing a penalty for violations of the conditions of a permit. Under such circumstances, the Commonwealth must adhere to the legislative scheme in pursuing criminal charges. The alteration of the monitoring pipe here was execrable and constituted a clear violation of the conditions of the permit. But to conclude that the alteration constituted the operation of a new facility without a permit is a bald fiction we cannot endorse. Penal provisions of a statute must be strictly construed under 1 Pa.C.S. § 1928(b)(1).

We agree with the Commonwealth Court that the statutory language here cannot be stretched to include criminal activities which clearly fall under another statutory section or subsection. The Commonwealth Court was right in reversing Mr. Scarpone's conviction of operating without a permit when the facility clearly had one.

Id. at 278-29, 634 A.2d at 1112 (emphasis in original). The Supreme Court affirmed Scarpone's conviction on the charge of obstructing the administration of law.

On January 27, 1993, appellant filed an "emergency application for extraordinary relief" ...