Downs v. Com.

• Decision Date: 11 September 1992
• Citation: 616 A.2d 39,150 Pa.Cmwlth. 455
• Parties: Grafton DOWNS, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee. VHP, INC. a/k/a Vienna Health Products, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 39

616 A.2d 39

150 Pa.Cmwlth. 455

Grafton DOWNS, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.

VHP, INC. a/k/a Vienna Health Products, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.

Commonwealth Court of Pennsylvania.

Argued May 12, 1992.

Decided Sept. 11, 1992.

W. Thomas McCough, Jr., for appellants.

Andrea F. McKenna, Senior Deputy Atty. Gen., Appeals and Legal Services Section, for appellee.

Before DOYLE and SMITH, JJ., and BARRY, Senior Judge.

DOYLE, Judge.

Grafton Downs and Vienna Health Products, Inc. (VHP) appeal from the judgment of sentence entered in the Court of Common Pleas of Lawrence County for multiple violations of the Solid Waste Management Act (SWMA). ¹

Downs is the president and sole shareholder of VHP, a corporation which manufactures exercise and weightlifting equipment. As part of the production process at VHP, lacquer solvent is utilized to degrease steel parts in preparation for painting. Once the lacquer solvent is used to prepare the steel, it becomes contaminated by grease and oil and the solvent is, thus, rendered useless for further degreasing. This waste solvent was stored on VHP's premises in 55-gallon drums to await ultimate disposal.

On April 12, 1988, two boys discovered four 55-gallon drums of lacquer solvent sitting in a field along Frew Mill Road in Slippery Rock Township, Lawrence County. The Department of Environmental Resources (DER) examined the contents of the four drums and determined that the lacquer solvent contained xylene and toluene, chemicals which are listed as hazardous wastes by the DER. ² DER traced the drums of solvent to VHP and, thereafter, initiated an investigation of VHP. On April 4, 1989, at the conclusion of the investigation, the Office of Attorney General filed criminal informations in the Court of Common Pleas of Lawrence County against VHP and Downs. The informations charged Downs and VHP with four criminal counts alleging violations of the SWMA as follows: (count I) the improper disposal of hazardous wastes ³ under Section 401 of the SWMA, 35 P.S. § 6018.401 (second-degree felony); (count II) the transportation of hazardous wastes without a permit in violation of Section 401 of the SWMA (second-degree felony); (count III) the use of property of another for disposal of solid waste ⁴ without a permit in violation of Section 501 of the SWMA, 35 P.S. § 6018.501 (third-degree misdemeanor); and (count IV) the transportation of residual waste ⁵ by an employee of VHP with the permission of Downs to a disposal site that did not have a permit in violation of Sections 301 and 303 of the SWMA, 35 P.S. § 6018.301 and § 6018.303 (third-degree misdemeanor).

On September 18, 1989, a criminal jury trial was commenced against Downs and VHP during which, the following salient testimony was elicited: Larry Hoffman, a former plant manager of VHP, testified that he approached Downs with respect to the quantity of waste solvents which had accumulated on the premises; that Downs instructed him to allow VHP employees to take the waste solvent home because it would cost too much to hire someone to remove the waste; that employees did take solvent home and that he informed Downs when employees did so. Dan Workman, Hoffman's replacement as plant manager, testified that he was also concerned about the accumulation of waste solvents at the plant; he testified that he expressed this concern to another employee, Daniel Pelles, who indicated that he might know a person interested in using the waste solvent to "burn a field." Pelles testified that, at the request of Workman, he took four 55-gallon drums of solvent from VHP and disposed of them in a field along Frew Mill Road. Workman testified that he informed Downs that Pelles took the four drums of solvent from VHP. Pelles testified he and Downs discussed the removal of the solvent, and the only question posed by Downs was "if it [w]ould come back to haunt him."

Despite the fact that Downs was outside of the Commonwealth on vacation when the four drums of waste were transported and dumped, the jury found Downs guilty of improperly disposing of a hazardous waste (count I) and transporting hazardous waste without a permit (count II), both second-degree felonies. The jury found VHP guilty on all four counts. Downs and VHP filed an omnibus motion for new trial and arrest of judgment. On March 20, 1991, the trial judge, Judge Ralph Pratt, in an extensive and thorough opinion, denied entirely the motion of the defendants.

By sentence orders dated July 29 and 30, 1991, the trial court sentenced Downs and VHP. With respect to count I, Downs was sentenced to serve two to four years in prison, to be suspended upon the completion of nine months in the Lawrence County Prison (with work release) followed by probation for two years; fined $10,000; and ordered to perform 750 hours of community service. Further, Downs was fined $2,500 for his conviction on count II. With respect to VHP, the trial court imposed fines for its conviction on counts I, II, and III totaling $70,000; no sentence was imposed for its conviction on count IV, because the trial court held that count IV merged into the other three counts. Both defendants filed a motion to modify the sentences which the trial court denied. This appeal followed.

Downs and VHP contend that (1) the trial court erred in denying their motion for a new trial and arrest of judgment because the evidence is insufficient to sustain the verdict and the verdict is against the weight of the evidence, (2) the trial court erred in admitting the testimony of Larry Hoffman, (3) the trial court violated Article 1, Section 9 of the Pennsylvania Constitution by imposing a prison sentence, (4) the term of imprisonment imposed by the trial court violates the prohibition against cruel and unusual punishment in the Pennsylvania and United States Constitutions, and (5) the trial court abused its discretion in sentencing Downs to a period of incarceration. Issues 1, 3, 4, and 5, as argued by VHP and Downs in their combined brief, apparently apply only to appellant Downs; issue 2 apparently applies to both appellants Downs and VHP.

We will now consider the first contention of Downs. ⁶

Downs argues that the trial court erred in not granting the motion in arrest of judgment because there is insufficient evidence to support the verdict. Specifically, Downs argues that the Commonwealth failed to present sufficient evidence to find him guilty, either personally or as an accomplice, of violating Section 401 of the SWMA. In reviewing a trial court's denial of a motion in arrest of judgment, if the evidence, viewed in the light most favorable to the Commonwealth, is not sufficient to establish guilt beyond a reasonable doubt, then the trial court should have arrested judgment, Commonwealth v. McFadden, 377 Pa.Superior Ct. 454, 547 A.2d 774 (1988), but the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984).

Section 401 of the SWMA reads as follows:

No person ... shall store, transport, treat, or dispose of hazardous waste within this Commonwealth unless such storage, transportation, treatment, or disposal is authorized by the rules and regulations of the department; ... and, no person ... shall transport hazardous waste within the Commonwealth unless such person ... has first obtained a license for the transportation of hazardous waste from the department.

Section 606(f) of the SWMA, 35 P.S. § 6018.606(f), provides for criminal sanctions against persons who violate Section 401 of the SWMA:

Any person who stores, transports, treats, or disposes of hazardous waste within the Commonwealth in violation of section 401 ... shall be guilty of a felony of the second degree and, upon conviction, shall be sentenced to pay a fine of not less than $2,500 but not more than $100,000 per day for each violation or to imprisonment for not less than two years but not more than ten years, or both.

The General Assembly explicitly provided in Section 606(i) of the SWMA, 35 P.S. § 6018.606(i), that with respect to Section 606(f) it was the legislative purpose to impose absolute liability for violations of that Section. ⁷

The prosecution proceeded on the theory that Downs was guilty because of criminal negligence ⁸ and the trial judge charged the jury that, in order to convict, they must find Downs criminally negligent at a minimum. ⁹ But even under the theory of criminal negligence, a standard higher than the absolute liability standard articulated in Section 606(i) of the SWMA, we must conclude that there was sufficient evidence to convict Downs. The record reveals that Larry Hoffman informed Downs of the accumulation of hazardous waste at VHP and that Downs responded to Hoffman's concern by telling him that, in order to save money, the employees could take the waste home. Moreover, when employees took the waste home, Downs was notified by Hoffman that this occurred. A jury could reasonably find that Downs was criminally negligent on the basis that Downs should have been aware of the substantial risk created by his policy of permitting employees to remove waste from the plant to save the cost of otherwise disposing of it; further, the jury could have reasonably concluded that Downs's policy set the stage for the employee, Dan Pelles, taking four 55-gallon drums of waste solvents from VHP and disposing of those drums in a field. ¹⁰

Downs next argues that the trial court erred in not granting him a new trial because the jury's verdict was contrary to the weight of the evidence. Whether a new trial should be granted because the verdict is against the weight of the evidence is an issue addressed to the sound discretion of the trial court and a new trial should be granted only when the verdict is so contrary to the evidence as to shock one's sense of justice. Com. v. Stambaugh, 355 Pa.Super. 73, 512...