Commonwealth v. Selby, No. 2597 C.D. 2009 (Pa. Commw. Ct. 5/17/2010)

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Commonwealth of Pennsylvania, v. Ronald V. Selby, Appellant.

No. 2597 C.D. 2009.

Commonwealth Court of Pennsylvania.

Submitted: April 16, 2010.

Filed: May 17, 2010.

OPINION NOT REPORTED

MEMORANDUM OPINION PER CURIAM.

Ronald V. Selby (Selby) appeals pro se from the order of the Court of Common Pleas of Beaver County (trial court) finding him guilty of violating the Borough of Ambridge's (Borough) Refuse Ordinance (Ordinance) by failing to pay the required refuse collection fee for approximately five years.

The Borough has a system of compulsory garbage collection and bills residents for this service on a quarterly basis. The yearly refuse removal fee is $145 per dwelling unit. Selby resides in the Borough in a dwelling that has a kitchen. Like all homeowners, the Borough billed him a quarterly fee for refuse collection. In January 2004, Selby wrote the Borough asking for an exemption from paying the refuse collection fee because he claimed that he has not thrown anything away since August 2003. He stated that he uses all waste material from his home that cannot be recycled or composted to repair and construct household objects because he wishes to reduce the amount of refuse that is put into landfills. The Borough denied his request and advised him that everyone who has a kitchen must pay the fee. Despite the denial of his exemption request, Selby stopped paying the fee on April 1, 2004.

On September 17, 2009, Selby was charged with the summary offense of not paying the refuse fee as required by the Ordinance. The Ordinance provides that "[a]ny person who violates any provision of this Part shall be, upon conviction thereof, sentenced to pay a fine of not more than $1,000.00 plus costs and, in default of payment of said fine and costs, to a term of imprisonment not to exceed 30 days." He requested that counsel be appointed for him, but this request was denied because he was not indigent.

Before the trial court, Selby, representing himself, argued that payment of the refuse collection fee could not be imposed "without stifling fundamental personal liberty" because requiring each resident to pay a flat fee for refuse collection did not promote reduction in waste generation. He also argued that the statute of limitations had run because he had not paid the fee since 2004. The trial court found Selby guilty and ordered him to pay a $100 fine but also ordered him to pay $785.44 in restitution to the Borough for the unpaid refuse charges within 90 days or pursuant to a payment schedule. Selby then appealed to this court. In its opinion filed following the notice of appeal, the trial court stated that it erred in not applying the two-year statute of limitations set forth in 42 Pa. C.S. §5552(a), which requires that summary offenses be brought within two years. It noted that this error would not change the finding of guilt but would result in a lowering of the amount of restitution because the violations that occurred more than two years earlier would not have to be repaid.

Selby again contends that the goals of the Ordinance cannot be achieved without stifling personal liberty and that a better system of refuse fees would charge per unit of refuse generated rather than using a flat fee. As the trial court correctly noted, that argument is tantamount to arguing that the refuse collection fee is unreasonable because it is leveled against each household regardless of the amount of refuse it generates. However, even if what he proposed was practical or even better than the current system, that does not make the present system unlawful or unreasonable. Because "the party challenging the reasonableness of a fee bears the burden of proving it is unreasonable," M&D Properties, Inc. v. Borough of Port Vue, 893 A.2d 858, 862 (Pa. Cmwlth. 2006), and Selby offered no such evidence, this argument fails.

Selby also...