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Blosenski Disposal Serv. v. Commonwealth

Citation: 19 ELR 21324
No. No. 832 C.D. 1987, 543 A.2d 159/(Pa. Commw. Ct., 05/24/1988)

The court holds that a waste disposal service's conviction for violating the Pennsylvania Solid Waste Management Act (SWMA) was supported by the evidence and no Fourth Amendment violation occurred even though the state agent who personally observed the violations entered the service's property without a warrant. The service was charged with operating or utilizing a solid waste processing facility without a Department of Environmental Resources (DER) permit, and with using land as a municipal solid waste processing area without a DER permit. The court finds that the service did not have a DER solid waste management permit and that a DER agent testified that he saw one of the service's trucks back into a compactor area carrying waste requiring a permit. The court first holds that this eye witness testimony is sufficient to deny an arrest of judgment and that the service violated the SWMA by depositing waste in violation of DER regulations. The court holds that the act of depositing waste is a crime under the SWMA. The court holds that although state case law makes administrative warrantless search provisions unconstitutional when nonhazardous wastes are involved, SWMA § 608, which authorizes administrative searches, was presumed constitutional at the time the DER agent entered the service's premises. Further, the United States Supreme Court has held that warrantless naked-eye observations of an area protected by the Fourth Amendment are constitutional. The court next holds that although the DER agent failed to issue a citation at the time the violation was witnessed, as required by the SWMA, the disposal service failed to show that it suffered manifest and palpable harm from the noncompliance and its rights were not prejudiced by the delay. The court next holds that although the DER agent did not actually observe unpermitted waste being removed and compacted, his testimony sufficiently supports the conviction. Because the Commonwealth receives the benefit of all reasonable inferences from the facts of the entire trial record, the facts asserted may properly be inferred. Finally, the court holds that 10 issues listed by the service were properly waived by the lower court because they were not properly briefed, but merely listed in a single paragraph.

Counsel for Appellant
James A. Cunningham
Sager, Sager & Associates
45 High St., Pottstown PA 19464
(215) 323-1328

Counsel for Appellee
Kenneth E. Gelburd, Special Deputy Att'y General
Office of Chief Counsel — Eastern Region
1314 Chestnut St., Ste. 1200, Philadelphia PA 19107
(215) 560-4252

Before CRAIG and DOYLE, JJ., and KALISH, Senior Judge.