Com. v. Lightman

• Decision Date: 04 April 1985
• Citation: 489 A.2d 200,339 Pa.Super. 359
• Parties: COMMONWEALTH of Pennsylvania v. Jerome LIGHTMAN, Appellant. COMMONWEALTH of Pennsylvania v. LIGHTMAN DRUM COMPANY, INC., Appellant.
• Court: Pennsylvania Superior Court

Page 200

489 A.2d 200

339 Pa.Super. 359

COMMONWEALTH of Pennsylvania v. Jerome LIGHTMAN, Appellant.

COMMONWEALTH of Pennsylvania v. LIGHTMAN DRUM COMPANY, INC., Appellant.

Superior Court of Pennsylvania.

Argued Aug. 23, 1984.

Filed Jan. 30, 1985.

Reargument Denied April 4, 1985.

Herman Bloom, Philadelphia, for appellants.

David F. Michelman, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, President Judge, and OLSZEWSKI and BECK, JJ.

OLSZEWSKI, Judge:

Appellants are a private, family-owned and run waste disposal company and its vice president (who owned 40% of its stock). At trial it was alleged that in 1972 Clarence Walker, a Streets Department bulldozer operator assigned to Philadelphia's Fort Mifflin Landfill, entered into an agreement with Marvin Lightman (father of Jerome Lightman), president and principal stockholder of Lightman Drum Company. Under the agreement, Walker would permit Lightman trucks to enter the landfill to dump toxic wastes, in return for a fixed amount of money per barrel. From 1972 until 1975, Lightman trucks regularly entered the landfill to dump drums, paying to Walker and his co-worker, Curtis Carson, at least $12,000 by checks signed and issued by Marvin or Jerome Lightman. The landfill was intended to be a disposal site for sterile fly-ash residue from the city incinerator, brought here by city vehicles or privately owned vehicles under contract with the City.

The findings of fact by Judge Gafni, below, show that the Pennsylvania Department of Environmental Resources and the City's Streets Department became aware of illegal dumping activity at the landfill in December 1975, when an unidentified truck was caught dumping at the site. However, the District Attorney's Office first became aware of the bribery and conspiracy charged in this case on February 28, 1979. On that date Carson confessed to a police detective that he had received money as bribes from Jerome Lightman and several other chemical waste disposal companies. An investigation into Lightman's complicity in the illegal dumping commenced at that time. The investigation was hampered by Jerome Lightman's non-residency status and by Lightman Drum's having no office in the Commonwealth from December, 1975 through March, 1980.

Jerome Lightman was arrested, and criminal complaints were filed against Lightman Drum and Jerome Lightman on March 28, 1980. After trial by jury, Jerome Lightman was convicted of 31 counts of bribery and also conspiracy. 18 Pa.C.S.A. § 4701; 18 Pa.C.S.A. § 903. Lightman Drum Company was convicted of 34 counts of bribery and also conspiracy. Jerome Lightman was sentenced to 1 1/2 to 4 years imprisonment plus a fine of $3,000.00 on each bill, with each sentence to run concurrently. Lightman Drum Company received a suspended sentence.

The costs for clean-up of the Fort Mifflin Landfill are anticipated to run into the millions of dollars. No evidence has been presented concerning the impact of the toxic wastes on the environment or public health. This appeal follows the denial of timely motions in arrest of judgment and for a new trial.

Appellants raise four issues for review. First, appellants argue that the lower court erred in not finding the prosecution of these cases barred by the statute of limitations. We agree with the lower court that prosecution of these cases was not barred.

Appellants argue that insofar as the last act of illegal dumping occurred in 1975, the statute of limitations on these charges ran out in 1977. The applicable statute of limitations, 18 Pa.C.S. § 108, provides under subsection (f)(1) that the limitations period, normally two years, is tolled "during any time when the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth...." ...." ¹ This standard was applied in Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980), in a case remarkably similar to the case at bar. Our Supreme Court held that the statute of limitations was tolled after a thorough search revealed that defendant had no legal residence or office within the Commonwealth. Although we stop short of creating a per se rule, in the instant case appellant's absence from the Commonwealth from 1975 to 1980 certainly foiled all efforts to ascertain his whereabouts. Appellant's fleeting contacts with the Commonwealth such as hospital visits, visits with unspecified relatives, or driving a company truck to unspecified locations in eastern Pennsylvania do not comport with notions of a "reasonably ascertainable" place of abode or work.

Appellants also argue that 18 Pa.C.S. § 108(f)(1) violates the requirements of the Equal Protection and Privileges and Immunities Clauses of the United States Constitution. As to the Equal Protection Clause, appellants assert that the statute discriminates between residents of the Commonwealth and non-residents by creating two classes of people: residents, for whom a definite period of limitation is always applicable; and residents who are continuously absent from the Commonwealth and non-residents, for whom the period of limitation is extended. We disagree.

The right to travel freely has been guaranteed constitutional protection by the Supreme Courts of the United States and Pennsylvania. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974). Nevertheless, the right to travel is subject to qualification when it runs afoul of legitimate state interests. In Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), the United States Supreme Court upheld a Georgia child support statute which made it a misdemeanor to abandon a dependent child, but provided that it was a felony offense for a parent to abandon a dependent child and to leave the state. The Court reaffirmed that the right to travel is a fundamental interest protected by the Constitution and that ... "a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another." Id. at 419, 101 S.Ct. at 2440. Nevertheless, the Court recognized that there are situations in which the service of State interests permit the rationally related qualification of a citizen's right to travel, including the situation where a person commits a crime in a State, then leaves before arrest or conviction. Id. at 421-422, 101 S.Ct. at 2441-2442.

[T]here is clearly a distinction between one who ... leaves the state after committing a crime, resulting in the tolling of the statute of limitations during his absence, and one who has committed no crime but is deprived of a government benefit merely because he exercises his right to travel to another state. In the former circumstance, the state has an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily.

Id. at 421, fn. 18, 101 S.Ct. at 2441, fn. 18, quoting Scherling v. Superior Court of Santa Clara County, 22 Cal.3d 493, 501, 149 Cal.Rptr. 597, 601-602, 585 P.2d 219, 223-224 (1978).

The tolling provision of the statute of limitations, 18 Pa.C.S. § 108(f)(1), is rationally related to the Commonwealth's interest in enhancing the possibility of identification of criminals and in avoiding the burdens of extradition proceedings. We find a further valid legislative purpose in the statute in that it enhances the possibility of the detection of crime, where, as here, the evidence of the crime may be well hidden.

We reject appellant's argument that the tolling provision of 18 Pa.C.S. § 108 violates the Equal Protection Clause. That Clause establishes the fundamental principle that a State must govern impartially. See Helms, 452 U.S. at 423, 101 S.Ct. at 2442. Section 108(f)(1) applies equally to all criminal activity within the Commonwealth; nothing in appellants' argument or in the record suggests that the statute has been enforced against appellants any differently than it would be enforced against anyone else who engaged in the same conduct. Id. at 424, 101 S.Ct. at 2443.

Although not binding upon us, we find most persuasive the rationale of Scherling v. Superior Court of Santa Clara County, 22 Cal.3d 493, 149 Cal.Rptr. 597, 585 P.2d 219 (1978). Addressing the same challenge to its statute of limitations tolling provision, that court held that the rational relationship test was applicable, since the statute did not violate the defendant's right to travel and did not deprive the defendant of a fundamental interest in liberty. Id. 149 Cal.Rptr. at 602-603, 585 P.2d at 224-225. The tolling of Section 108 does not impose a penalty greater than that imposed upon criminals who remain in the state, but rather subjects those who choose to absent themselves to responsibility for a longer period of time. See Scherling, 22 Cal.3d at 503, 149 Cal.Rptr. at 603, 585 P.2d at 225.

We therefore measure appellants' equal protection claim by the less rigorous rational relationship standard applicable to rights which are not deemed to be fundamental. We have shown above that the Legislature could have determined that the detection of the crime, identification of the criminal and avoidance of extradition are more likely if the criminal remains in the state than if he departs. This assumption justifies tolling the statute of limitations for the period during which appellants may have avoided detection by leaving the jurisdiction.

As to appellants' argument under the Privileges and Immunities Clause, it is settled that the Clause is to be narrowly construed and does not require that a State must always apply all of its laws or provide all of its services equally to residents and non-residents who may request it to do so. Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57...