source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    County of Berks v. Allied Waste Industries Inc.

      C.P. of Berks County,
    no. 03-14974.

      Charles E. Gutshall, Kenneth L. Joel and Stephanie E. Divittore, for plaintiff.

      Alan K. Cotier, Joan A. Yue and Peggy B. Greenfeld, for defendants.
    April 30, 2004
   LASH, J.,

— This matter comes to the court on defendants’ preliminary objections to plaintiff’s complaint. For reasons set forth herein, we sustain the preliminary objections, dismissing Counts I, II and IV of plaintiff’s complaint and requiring plaintiff to amend Count III of the complaint to conform to the Pennsylvania Rules of Civil Procedure.

Plaintiff, County of Berks, filed its complaint on December 9, 2003, alleging that defendants, Allied Waste Industries Inc., Browning-Ferris Inc., and New Morgan Landfill Company Inc., are in violation of the Solid Waste Management Act of 1980 (SWMA) (Count I), violation of the Municipal Waste Planning, Recycling and Waste Reduction Act of 1988 (Act 101) (Count IV), creating a public nuisance (Count III), and causing a diminution of property values (Count II). Plaintiff alleges that these claims arise as a result of the improper operation by defendants of the Conestoga Landfill, a municipal waste landfill located in New Morgan Borough, Berks County, Pennsylvania. Specifically, the complaint alleges that the operations of the landfill are creating off-site odors which cause or contribute to public nuisances. Plaintiff claims in its complaint that the landfill has received 17 notices of violation (NOV) from the Department of Environmental Protection. Several complaints were also received from private residents. As a result of the off-site migration of said odors and associated air borne contaminants, numerous Berks County residents, particularly those residing within a two-mile radius of the landfill, have been deprived of the quiet enjoyment of their property.

Plaintiff believes as the host county for the landfill, it has a right to bring an action on behalf of its citizens to restrain the public nuisance, as well as to enjoin violations of the SWMA and Act 101 and to prevent diminution of property value. Plaintiff seeks relief in the form of an injunction, enjoining defendants from operating the landfill until such time as it is demonstrated that no public nuisances will be created or will continue to be created.

Defendants filed the within preliminary objections, alleging that each count in the complaint, and the complaint in its entirety, is fatally defective and must be dismissed with prejudice. Argument was held on the preliminary objections on April 19, 2004.

Preliminary objections should be sustained only in cases that are “clear and free from doubt.” Ellenbogen v. PNC Bank N.A., 731 A.2d 175, 181 (Pa. Super. 1999). In considering the within preliminary objections, this court must admit as true all material facts as set forth in the complaint, as well as all inferences deducible therefrom. McMahon v. Shea, 547 Pa. 124, 129, 688 A.2d 1178, 1181 (1997). The question then becomes “whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Id., citing Mahoney v. Funches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983).

The first objection we must consider is whether this court can hear the case because plaintiff failed to join DEP as an indispensable party. See Centolanza v. Lehigh Valley Dairies Inc., 540 Pa. 398, 658 A.2d 336 (1995), citing Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988), for the proposition that absence of an indispensable party goes to a court’s jurisdiction and prevents it from granting relief.

Defendants argue that DEP is an indispensable party and that plaintiff’s failure to name DEP is fatal to the complaint. In support of their position, defendants cite the case of CRY Inc. v. Mill Service Inc., 536 Pa. 462, 640 A.2d 372 (1994). In CRY, a case involving a citizen’s group filing a claim against an alleged polluter, the issue was whether DER should have been joined, our Supreme Court restated the appropriate analysis for determining whether a party is indispensable:

“(1) Do absent parties have a right or interest related to the claim?

“(2) If so, what is the nature of that right or interest?

“(3) Is that right or interest essential to the merits of the issue?

“(4) Can justice be afforded without violating the due process rights of absent parties?” Id. at 468-69,640 A.2d at 375.

The Supreme Court found that all four considerations were present. First,

“DER is the agency of government responsible for regulating harmful pollution of the kind alleged in this lawsuit. Second,.... DER’s regulatory activity and authority may be affected by an adjudication of [the] lawsuit. Third,... [bjecause DER’s regulatory activity may be affected by any order entered in this case, and because compliance with that order may require the cooperation of DER, its interest is essential. Finally . . . [i]f DER were not party to this suit, it may withhold permits necessary to carry out remedies which may be ordered or it may seek to commence a multiplicity of actions in which the same or related matters are at issue.” Id. at 469-70, 640 A.2d at 376.

Plaintiff argues that the CRY case is distinguishable on the facts, and that Centolanza, supra, controls. The Centolanza case involved landowners who brought an action against the current and former owners of adjacent land to recover for contamination of their land by waste water and fuel oil. The Supreme Court recognized CRY and utilized the Mechanicsburg analysis in the same manner.

In ruling that DER was not an indispensable party, the court distinguished Centolanza on the facts. First, the plaintiffs did not allege that DER failed to perform its function, including halting, ceasing or abating the alleged nuisance. In CRY, the plaintiff alleged in its complaint that DER engaged in misfeasance and malfeasance. Secondly, the plaintiffs did not request any type of relief directly involving the Commonwealth. In CRY, plaintiff made two demands for relief, which required action by DER. Finally, in CRY, DER’s cooperation was unlikely because DER insisted that a court was powerless to order certain relief, which was not the case in Centolanza.

Plaintiff, in this case, like the plaintiff in the Centolanza case, did not claim in its complaint that DEP acted improperly in any manner, nor did it seek relief or any action from DEP. This court agrees with plaintiff that DEP is not an indispensable party. This matter can proceed without impairing any rights or interest of DEP. The preliminary objection raising the issue of indispensable party is hereby overruled.

We next review defendants’ objection to Count I, alleging that plaintiff has no authority to bring an action under SWMA.

The SWMA was enacted after the General Assembly determined that “improper and inadequate solid waste practices created public health hazards, environmental pollution, and economic loss, and cause[d] irreparable harm to the public health, safety and welfare” of Pennsylvania. 35 P.S. §6018.102. The stated purpose of the Act is, among other things, to encourage the development of resource recovery as a means of managing solid waste, require permits for the operation of municipal waste landfills, and to protect the public health, safety and welfare from the short and long-term dangers of transportation, processing, treatment, storage and disposal of all wastes. In this regard, it furthers the right of the people to clean air, pure water and to the preservation of the natural scenic, historic and aesthetic values of the environment, as required by Article I, section 27, of the Pennsylvania Constitution.

In effectuating these purposes, the SWMA empowers the DEP, in consultation with the Department of Health, to, among other things, administer the solid waste management program, cooperate with appropriate federal, state, interstate and local units of government and with appropriate private organizations in carrying out its duties under SWMA, regulate the storage, collection, transportation, processing, treatment and disposal of solid waste, and issue permits, licenses and orders and specify the terms and conditions thereof, and conduct inspections and abate public nuisances to implement the purposes and provisions of the Act and the rules, regulations and standards adopted pursuant to the Act.

Plaintiff correctly notes in its brief that a violation of any provision of SWMA or any rule or regulation of DEP, any order of DEP, or any term or condition of any permit, shall constitute a public nuisance. Plaintiff reasons that the NOVs issued by the DEP, the complaints by private landowners, and the presence of the odor itself, are violations of the SWMA. Therefore, the landfill is a public nuisance and plaintiff has actionable claims.

Plaintiff claims authority to bring the action under section 604 of SWMA. That section provides, in pertinent part:

“(a) In addition to any other remedies provided in this act, the department13 may institute a suit in equity in the name of the Commonwealth where a violation of law or nuisance exists for an injunction to restrain a violation of this act or the rules, regulations, standards or orders adopted or issued thereunder and to restrain the maintenance or threat of a public nuisance. In any such proceeding, the court shall, upon motion of the Commonwealth, issue a prohibitory or mandatory preliminary injunction if it finds that the defendant is engaging in unlawful conduct as defined by this Act or is engaged in conduct which is causing immediate and irreparable harm to the public. In addition to an injunction, the court in such equity proceedings, may levy civil penalties as specified in section 605.

“(b) In addition to any other remedies provided for in this Act, upon relation of any district attorney of any county affected, or upon relation of the solicitor of any municipality affected, an action in equity may be brought in a court of competent jurisdiction for an injunction to restrain any and all violations of this Act or the rules and regulations promulgated hereunder, or to restrain any public nuisance or detriment to health.

“(c) The penalties and remedies prescribed by this Act shall be deemed concurrent and the existence of or exercise of any remedy shall not prevent the department from exercising any other remedy hereunder, at law or in equity.”

Contrary to plaintiff’s assertion, section 604 does not authorize the county to bring an action in its own name. Section 604(a) authorizes DEP to institute a suit in the name of the Commonwealth where a violation of law or nuisance exists. Subsection (b) permits a county district attorney or a solicitor of a municipality, as a relator, to bring an action on behalf of the Commonwealth. No other entities are authorized to bring suit under this section.

Thus, the plaintiff’s argument fails for two reasons. First, the plaintiff brought the action in its own name, not in the name of the Commonwealth. The Commonwealth is the real party in interest, pursuant to its delegated power under Article I, Section 27, of the Pennsylvania Constitution which states: “As trustee of the [environmental] resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Secondly, neither the district attorney of Berks County, nor the solicitor of Berks County, has any known involvement in this action. It is they, and only they, who are authorized officials under section 604(b), permitted, on information possessed by them, to pursue an action on behalf of the Commonwealth.

There is no other provision cited by plaintiff, or existing in SWMA, which would authorize the plaintiff to bring a claim under SWMA. Plaintiff is without standing to bring the claim. Count I is therefore dismissed.

For the same reasons, Count IV of the complaint must also be dismissed. This count alleges a violation of Act 101.

Similar to its reasoning for enacting SWMA, the General Assembly determined, declared and found that improper municipal waste practices create public health hazards, environmental pollution, and economic loss and cause irreparable harm to the public health, safety and welfare, that all aspects of solid waste management, particularly the disposition of solid waste, pose a critical threat to the health, safety and welfare of the citizens of this Commonwealth and that uncontrolled increases in the daily volumes of solid waste received at municipal waste landfills have significantly decreased their remaining lifetimes, disrupting the municipal waste planning process and the ability of municipalities relying on the landfills to continue using them. These increases have threatened to significantly and adversely affect public health and safety when municipalities find they can no longer use the facilities. Uncontrolled increases in daily waste volumes can also cause increased noise, odors, track traffic and other significant adverse effects upon the environment, as well as on public health and safety.

Having made these findings, the General Assembly enacted Act 101, setting forth specific purposes, including the protection of the public health, safety and welfare of the citizens of Pennsylvania and to establish and maintain a cooperative state and local program of planning and technical and financial assistance for comprehensive municipal waste management.

As was true with SWMA, any unlawful conduct under Act 101, specifically section 1703(a), shall constitute a public nuisance. The plaintiff, using the same logic as in Count I, claims authority to bring suit under section 4000.1703 of Act 101. That section mirrors section 604 of SWMA, providing that suit may only be brought by the DEP, or by the county district attorney, or county solicitor, as relators on behalf of the Commonwealth. Accordingly, Count IV is dismissed.

Count II, entitled “Diminution of property values,” does not state a cause of action. As correctly noted by defendants, diminution of property value, in an appropriate case, is a measure of damages. The Supreme Court noted same, in dicta, in Centolanza, supra at 401, 658 A.2d at 338.

This conclusion is clear from a fair reading of the aver-ments in Count II. These allegations reiterate violations of SWMA and the presence of a public nuisance from the operation of the Conestoga Landfill. Paragraphs 41 and 42 of the complaint go on to say: “As a result of the off-site migration of mild odors and associated air borne contaminants, numerous Berks County residents have been deprived of the quiet enjoyment of their property. Accordingly, the value of properties surrounding the Conestoga Landfill has dramatically decreased for a period of years and continues to be decreased.” Thus, the complaint relies upon averments of Count I and Count ITT to support a cause of action. Count II, standing alone, is insufficient and must be dismissed.

We turn then to Count III, which concerns plaintiff’s common-law claim for public nuisance.

Defendants argue that plaintiff is barred from proceeding against defendants due to the decision of DEP to proceed administratively through the disposition of the issued NO Vs. Defendants raise three theories, namely, election of remedies, failure to exhaust administrative remedies and the doctrine of primary jurisdiction.

We note initially that both the SWMA in section 607 and Act 101 at section 1706 provide as follows: No provision in the Act, “or any act done by virtue of this Act, shall be construed as estopping the Commonwealth or [municipalities] in the exercise of their rights under the common law or decisional law or in equity, from proceeding in courts of law or equity to suppress nuisances, or to abate any pollution now or hereafter existing, or to enforce common-law or statutory rights.”

These sections further provide that the purpose of the Act is to provide “additional and cumulative remedies,” with nothing contained in either Act to be construed to in any way abridge or alter the rights or actions or remedies now or hereinafter existing in equity or under the common law or statutory law, criminal or civil.

Thus, the remedies afforded under the respective Acts are not exclusive. A municipality, such as plaintiff, may avail itself of additional and cumulative remedies to, inter alia, suppress nuisances, abate pollution or enforce rights.

Regarding the election of remedies argument, defendants rely upon the case of Department of Environmental Resources v. Leechburg Mining Company, 9 Pa. Commw. 297, 305 A.2d 764 (1973). In Leechburg, the Department of Environmental Resources issued an order against Leechburg Mining Company requiring certain steps to bring its operation in compliance with, inter alia, the SWMA. Leechburg appealed to the Environmental Hearing Board and by agreement, a partial consent adjudication was entered. No appeal was taken from the adjudication. Subsequently, the department filed a complaint in equity against Leechburg raising the same issues. The Commonwealth Court set forth that although the DEP had a choice of remedies to act to enforce particular violations, that was not a grant of permission to institute or process multiple proceedings. Once a remedy is elected and pursued, the department was precluded from also pursuing the other remedy.

The holding in Leechburg does not apply because plaintiff did not pursue an administrative remedy before filing the within action. It was DEP who issued the NO Vs and obtained the consent order. DEP’s decision to proceed did not and could not, under 607 of SWMA and 1706 of Act 101, affect or abridge the ability of plaintiff to pursue an action against the same defendants. Plaintiff is not bound here by the actions of DEP.

Defendants argue that plaintiff should exhaust its administrative remedy by filing an appeal to the Environmental Hearing Board from the administrative order of DEP, conceding that plaintiff has standing to do so. See Franklin Township v. Commonwealth, Department of Environmental Resources, 500 Pa. 1,452 A.2d 718 (1982); Susquehanna County v. Commonwealth, Department of Environmental Resources, 500 Pa. 512, 458 A.2d 929 (1983); and Borough of Glendon v. Department of Environmental Resources, 145 Pa. Commw. 238, 603 A.2d 226 (1992). However, an appeal would only address the matters framed by DEP in its NO Vs. Plaintiff alleges one additional NOV and complaints by private citizens. The scope of the public nuisance, which plaintiff intends to prove, may well exceed what is cited in the NO Vs. Even if the factual basis for plaintiff’s claim is limited to establishing the violations alleged in the NO Vs, the provisions of SWMA and Act 101 specifically do not restrict plaintiff from pursuing its own choice of remedy, even if that remedy is cumulative. Under 607 of SWMA and 1706 of Act 101, this court has jurisdiction to entertain the action filed by plaintiff. Plaintiff is not limited to simply joining in the administrative proceeding.

We find further that currently there is no administrative proceeding from which plaintiff can seek redress. The matter between DEP and the landfill has been resolved, at least for the time being, through the entry of a consent order and agreement dated December 10, 2003. That consent order sets forth, among other things, that the consent order is a final order of DEP and that defendant, New Morgan Landfill Company Inc., knowingly waived its rights to appeal the consent order and agreement and to challenge its content or validity. Additionally, the time has passed for anyone, including plaintiff as intervenor, to perfect an appeal to the Environmental Hearing Board.

Without further action being taken by DEP, either for enforcement of its consent order, or in the event of new violations, the administrative proceeding has ended. “Where a party voluntarily enters into a consent order, it is as if DEP issued an order from which no appeal was filed. . . . The only legal action left to be taken with respect to that order is enforcement.” Commonwealth, Department of Environmental Resources v. Landmark International Ltd., 131 Pa. Comrnw. 333, 337, 570 A.2d 140, 142 (1990). (citation omitted)

Defendants also argue that the within matter should be deferred pending a decision from the Environmental Hearing Board, under the doctrine of primary jurisdiction. The Commonwealth Court in Beltrami Enterprises Inc. v. Commonwealth, Department of Environmental Resources, 159 Pa. Comrnw. 72, 632 A.2d 989 (1993), explains the doctrine, stating:

“The Doctrine of Primary Jurisdiction allows a court to defer judicial action until an administrative agency has passed upon such aspects of a proceeding as may lie with the agency’s competence and expertise. Jackson v. Centennial School District, 509 Pa. 101, 501 A.2d 218 (1985). The purpose of the doctrine is to create ‘a workable relationship between the courts and administrative agencies wherein, in appropriate circumstances, the courts can have the benefit of the agency’s views on issues within the agency’s competence.’ Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 131-32, 420 A.2d 371, 376 (1980). In Pennsylvania, as in other jurisdictions, this reconciliation between the administrative agencies and the judiciary is accomplished by staying the judicial action until the agency has passed on those issues that are within its competence and are collateral to issues before the court. E.L.G. Enterprises Corp. v. Gulf Oil Co., 291 Pa. Super. 414, 435 A.2d 1295 (1981).” Id. at 77, 632 A.2d at 991.

Under this doctrine, this court would not be deprived of jurisdiction to hear the matters raised in Count III, but would defer the matter temporarily to the administrative proceeding. Once the administrative tribunal has resolved the issues before it, then the within action could continue, with guidance in scope and direction from the nature and outcome of the agency determination. Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 133-34, 420 A.2d 371, 377 (1980).

Defendants point out that SWMA and Act 101 provide DEP with the authority to enjoin public nuisances and bring suit against the offending landfill, sufficient to obtain the very relief sought by plaintiff in the within action. The DEP ostensibly has special experience and expertise in this area, as well as greater tools through the statutory enactments, including the power to execute search warrants and the power to prosecute offenses. Finally, any remedies sought by the county over and above what DEP could accomplish, could be litigated through the court after disposition of the administrative proceeding.

However, for the reasons already set forth, this matter should not be deferred to DEP or to the Environmental Hearing Board simply because there is no proceeding before either at this time. In essence, defendants are asking to reopen an administrative matter that they have agreed to close through the entry of a consent order. Accordingly, we rule that this matter shall not be handled administratively either under election of remedies, exhaustion of administrative remedies or primary jurisdiction, and that plaintiff can proceed with Count III.

Defendants also raise the sufficiency of the allegations in Count III. Specifically, defendants claim that Count III is defective because plaintiff failed to plead a violation of a public right or that the alleged nuisance is causing “significant harm.”

In the case of Muehlieb v. City of Philadelphia, 133 Pa. Commw. 133, 574 A.2d 1208 (1990), the Commonwealth Court, citing section 821B of the Restatement (Second) of Torts, defines and discusses a public nuisance:

“(1) A public nuisance is an unreasonable interference with a right common to the general public.

“(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

“(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience;

“(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

“(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.” Id. at 140,574A.2dat 1211. (emphasis in original)

Several instances of odors emanating from the landfill is the basis for plaintiff’s claim that a public nuisance exists. Plaintiff ostensibly relies on 17 NOYs issued by the DEP and several private complaints to form this factual predicate.

These alleged violations and complaints may well be accurate, and this court is certainly aware that an offensive odor from a landfill could create a significant interference with public health and could produce a long-lasting deleterious effect. Nevertheless, plaintiff is required to allege “the material facts on which a cause of action is based.” Pa.R.C.P. 1019(a). Plaintiff has not done this. The complaint cannot stand solely on the NO Vs and complaints, for they have no evidentiary value and establish nothing other than that DEP and some private citizens believe there were violations occurring. There is nothing to establish the extent of how the odors interfere with the public health or whether the odors are of a continuing nature or produce a permanent or long-lasting effect. Even the allegations contained in Counts I and IV, now dismissed, alleging that the odors constitute a violation of the SWMA and Act 101, do not meet the threshold for establishing how these odors violate those Acts.

In Karpiak v. J.S. Russo, 450 Pa. Super. 471, 676 A.2d 270 (1996), the Superior Court discussed significant harm, citing section 821F, comment C, to the Restatement (Second) of Torts:

“When [the invasion] involves only personal discomfort or annoyance, it is sometimes difficult to determine whether the invasion is significant. The standard for the determination of significant character is the standard of normal persons or property in the particular locality. If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant.” Id. at 476-77, 676 A.2d at 273.

Clearly, plaintiff must do more than allege the existence of odors. Plaintiff must also allege that these odors cause significant harm, by being offensive, annoying or intolerable, setting forth material facts sufficient to establish the claim. Plaintiff has failed to allege significant harm. Accordingly, this court sustains defendants’ preliminary objection to Count III, but will permit plaintiff to amend the complaint.

There are a few other objections which deal with collateral issues. First, defendants claim that paragraphs eight through 17 of the complaint should be stricken as irrelevant and scandalous. The essence of these paragraphs is that New Morgan Borough, where the Conestoga Landfill is located, is a sham municipality, created to provide a favorable location for the Conestoga Landfill in a manner designed to circumvent zoning regulations and other governmental restrictions. The complaint suggests that New Morgan Borough exists for the primary purposes of serving the landfill and creating profit for its developer, Ray Carr.

As defendants properly state in their brief, the issue of the propriety of the incorporation of the Borough of New Morgan was fully litigated, resulting in the Pennsylvania Supreme Court decision of Incorporation of Borough of New Morgan, Appeal of Caernarvon Township, 527 Pa. 226, 590 A.2d 274 (1991). The Supreme Court affirmed the decision of the Commonwealth Court, which affirmed the decision of the common pleas court, permitting the incorporation. Plaintiff is bound by this decision, precluding it from litigating further the question of whether New Morgan is a legitimate or a sham municipality. Paragraphs eight through 17 of the complaint have no relevance or pertinence to the claims raised by plaintiff. Accordingly, the court sustains defendants’ preliminary objection and orders that paragraphs eight through 17 be stricken, with prejudice.

Defendants also object to plaintiff attaching the NOVs and certain complaint logs to the complaint. This court agrees. For reasons already set forth, the NOVs and complaint logs have no evidentiary value. Plaintiff is certainly free to allege the existence of odors in its amended complaint, and assuming it can properly also allege that these odors are significant and affect the general public, the amended complaint would pass muster without these additional, unnecessary attachments.

Wherefore, we enter the following order:

ORDER

And now, April 30, 2004, upon consideration of the preliminary objections of defendants to plaintiff’s complaint, review of the file, briefs of the parties, and after argument held, the defendants’ preliminary objections are hereby sustained, and the court rules as follows:

(1) Paragraphs eight through 17 of the complaint are stricken;

(2) The NOVs and complaint logs attached to the complaint shall be removed;

(3) Counts I, II and IV of the complaint are dismissed; and

(4) Plaintiff shall have 30 days from the date of this order to amend Count III of its complaint to conform to the Pennsylvania Rules of Civil Procedure and the opinion attached to this order.

      .35 PS. §6018.101 etseq.

      . 53 P.S. §4000.101 et seq.

      . According to plaintiff’s complaint, defendant New Morgan Landfill Company Inc. is a permit holder for the Conestoga Landfill. Defendant New Morgan Landfill Company Inc. is a subsidiary of defendant Browning-Ferns Industries Inc., which is a subsidiary of defendant Allied Waste Industries Inc.

      . Plaintiff also alleges in its brief opposing defendants’ preliminary objections that the DEP sent an additional NOV to the landfill subsequent to the filing of the complaint.

      . Department of Environmental Resources. See n.17.

      . The court cited Mechanicsburg Area School District v. Kline, 494 Pa. 476, 431 A.2d 953 (1981).

      . 35 P.S. §6018.102(2).

      . 35 P.S. §6018.102(3).

      . 35 P.S. §6018.102(4).

      . See 35 P.S. §6018.102(10).

      . 35 P.S. §6018.104(1).

      . 35 PS. §6018.104(2).

      . 35 P.S. §6018.104(6).

      . 35 P.S. §6018.104(7).

      . 35 P.S. §6018.601.

      . 35 P.S. §6018.604.

      . Department is defined in 35 P.S. §6018.103 as the “Department of Environmental Resources of the Commonwealth of Pennsylvania and its authorized representatives,” now DEP.

      . 53 §4000.102(a)(1).

      . 53 §4000.102(a)(20).

      . 53 §4000.102(a)(21).

      . 53 §4000.102(b)(3).

      . 53 P.S. §4000.102(b)(l).

      . 53 P.S. §4000.1703(a).

      . 35 P.S. §6018.607.

      . 53 P.S. §4000.1706.

      . The language in SWMA specifically includes municipalities. The language in Act 101 uses the term “persons,” but persons is defined in section 103 of Act 101 to include municipalities.


author: CHARLES,

text:
    In the Interest of I.A.

      C.P. of Lebanon County,
    no. 2001-30011.

      Eleanor O ’Donnell, for the Commonwealth.

      Megan Ryland-Tanner, for I.A.
    May 11, 2004
   CHARLES,

— Before us is an evi-dentiary issue upon which the outcome of the above-referenced juvenile will rest. We must decide if a prior statement of a witness who recants at trial can be admitted as substantive evidence. Our decision regarding this issue was recently complicated by the United States Supreme Court, which injected constitutional considerations into what had previously been purely an evidentiary analysis. After reciting the factual background of this case, we will undertake an analysis of the issue from an evidence perspective and will follow that analysis with a discussion of federal constitutional principles.

I. FACTUAL BACKGROUND

On February 2, 2004, I.A. was charged with robbery. On March 16, 2004, we conducted a contested hearing regarding the robbery charge. The dispute before us arose in the context of our denial of I.A.’s motion for judgment of acquittal.

At the hearing, the Commonwealth presented testimony from R.G., who was the victim of a robbery. R.G. testified that three young men on bicycles accosted him. During the course of the attack, the young men stole $20 from R.G. R.G. described each of his assailants as being of Hispanic origin. However, he could not identify any of the three and was specifically unable to provide a courtroom identification of I.A.

The Commonwealth also called A.M. as a witness. A.M. stated that he was riding his bicycle with I.A. and two other boys. He stated that the handlebars of I.A. inadvertently struck the victim. However, he disavowed any knowledge of further involvement by I.A. in the robbery. He specifically denied that I.A. hit the victim or participated as an accomplice in stealing the victim’s cash.

Following the above testimony, the Commonwealth sought and was granted permission to cross-examine A.M. On cross-examination, A.M. was confronted by a statement he had previously made on January 30, 2004 at a contested hearing for one of I.A.’s co-conspirators. In that prior statement, A.M. testified under oath that I.A. “fought” with the victim and that I.A. received one-third of the proceeds garnered from this robbery.

We considered the prior statement of A.M. as substantive evidence of I.A.’s guilt. As a result, we found I.A. guilty of robbery. However, we acknowledged that without A.M.’s prior statement, we would not have had sufficient evidence to find I.A. guilty of robbery.

During the contested hearing, we did not have ample opportunity to conduct the legal research that this issue necessitated. Therefore, we suggested to the parties that disposition over I.A. be deferred until both sides had the opportunity to fully brief the issue. Both the Commonwealth and I.A. agreed with our suggestion. Therefore, a disposition hearing was continued. Both sides filed briefs on April 19, 2004. We write this opinion to resolve the issue now before us.

II. PENNSYLVANIA EVIDENCE LAW

The witness who recants has long presented a dilemma for courts. Without question, a witness who changes his story can be confronted with, and impeached by, a prior inconsistent statement. The more thorny question is whether the prior statement can be considered as substantive evidence of guilt. This question is squarely before us, as the Commonwealth’s case would not have survived a motion for judgment of acquittal without A.M.’s prior statement.

Fortunately, we can receive guidance from an evolving body of Pennsylvania case law that began with the case of Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). In Brady, the Supreme Court held that prior inconsistent statements of a non-party witness may be used as substantive evidence. While acknowledging the traditional view that such statements were hearsay, the court nonetheless concluded that because the witness would testify under oath and be subject to cross-examination, the traditionally-recognized dangers of hearsay would be non-existent. Id. at 128-29, 507 A.2d at 69.

The Supreme Court was again confronted with this issue in 1992. In Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), the Supreme Court amplified its Brady ruling by requiring that “additional requirements of reliability” be established before a prior inconsistent statement can be offered as substantive evidence. Id. at 470, 610 A.2d at 9-10. Thus, the Supreme Court established a two-part test: (1) whether the statement is given under reliable circumstances; and (2) whether the declarant is available for cross-examination. The Supreme Court explained its decision as follows:

“In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that a prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’ statements.” Id. at 471, 610 A.2d at 10.

The Supreme Court’s so-called Brady-Lively rule has been applied on several occasions by the Pennsylvania Superior Court. In Commonwealth v. Brewington, 740 A.2d 247 (Pa. Super. 1999), a prosecutor called a witness Ten owing that he had recanted his earlier statement. Despite this lack of surprise, the trial court permitted the Commonwealth to cross-examine the witness using his prior inconsistent statement. The Superior Court affirmed the trial court’s ruling and stated that prior inconsistent statements can be used for substantive purposes even in absence of surprise to the prosecutor.

More recently, in Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002), the defendant’s girlfriend provided a detailed statement to police that explained how the defendant beat her and threatened to kill her while holding a knife to her throat. When called upon to testify, the victim denied that the defendant assaulted her and asked that charges be dismissed. She claimed that her initial statement to police was inaccurate “due to an alcohol-induced blackout.” The trial court convicted defendant based largely upon the victim’s initial statement to police. The Superior Court affirmed the defendant’s conviction and the use of the victim’s prior statement as substantive evidence.

The similarities between this case and Carmody are compelling. In both cases, the only eyewitness to the crime recanted. In each case, the Commonwealth’s prima facie case was dependent upon the witness’ prior inconsistent statement. In Carmody, the Superior Court sane-tioned use of that prior inconsistent statement as substantive evidence. We will do likewise.

The facts of this case fall squarely within the Brady-Lively rule. In this case, the recanting witness’ prior statement was made under oath at a prior judicial proceeding. By the express language of the Supreme Court in Lively, this satisfies the first prong of the two-part Brady-Lively test. With respect to the second prong, A.M. was present and subject to cross-examination. Accordingly, the second part of the Brady-Lively test was also met. Because the Brady-Lively test has been met in this case, Pennsylvania law permits us to consider A.M.’s statement as substantive evidence.

III. CONFRONTATION CLAUSE

Our decision in this case was recently complicated by the United State Supreme Court. On March 8, 2004, our nation’s highest court decided the case of Crawford v. Washington, 124 S.Ct. 1354 (2004). Crawford involved the rules of evidence and the confrontation clause of the United States Constitution. Under the facts presented to it, the Supreme Court held that a defendant’s constitutional right to confront his accusers trumps inconsistent rules of evidence: “Where testimonial statements are involved, we do not think the framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence ....” Id. at 1370. Thus, the Supreme Court held that “[tjestimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 1369.

The ink used to print Crawford was hardly dry before a firestorm of criticism erupted. Most of the criticism was directed to the following passage found near the end of the majority opinion:

“Where nontestimonial hearsay is at issue, it is wholly consistent with the framer’s design to afford the states flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from confrontation clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 1374.

Most criticism mirrored remarks of Chief Justice Reinquist in his Crawford dissent:

“The court grandly declares that ‘[w]e leave for another day any effort to spell out a comprehensive definition of “testimonial,” ’ ante, at 1374. But the thousands of federal prosecutors and the tens of thousands of state prosecutors need answers as to what beyond the specific kinds of ‘testimony’ the court lists, see ibid., is covered by the new rule. They need them now, not months or years from now. Rules of criminal evidence are applied every day in courts throughout the country, and parties should not be left in the dark in this manner.” Id. at 1378.

Given the vagaries of Crawford, we suspect that the Sixth Amendment’s confrontation clause will become an implement affixed prominently to the tool belts of defense attorneys who seek to challenge admission of hearsay. On the other hand, prosecutors will no doubt urge a restrictive interpretation of Crawford limited to the facts of that case.

While the language of Crawford does not lend itself to a fact-specific interpretation, neither should Crawford be used as a sweeping disavowal of all hearsay in criminal cases. We chose an interpretation of Crawford that encompasses its purpose as well as its context.

Crawford’s purpose was to preclude the type of potential abuse that could arise without a defendant’s ability to confront and cross-examine witnesses. The framers of our constitution recalled and abhorred the “star chamber” type of process in Europe where accused persons were convicted based upon absent and sometimes even unnamed accusers. Our founding fathers designed the Sixth Amendment to insure that every defendant could look his/her accusers in the eye and test their testimony via cross-examination. As we see it, confrontation and cross-examination are the pillars upon which the Sixth Amendment and Crawford were built.

Crawford’s context is provided by a series of United States Supreme Court decisions that address the interplay between hearsay and the Sixth Amendment. These decisions draw a distinction between hearsay from an absent witness and prior testimony of one who is present in court. See e.g., Kentucky v. Stincer, 107 S.Ct. 2658 (U.S. 1987). In fact, two United States Supreme Court decisions recognized this distinction as having critical Sixth Amendment import.

In California v. Green, 399 U.S. 149 (1970), the court held that the confrontation clause was not violated by admitting a declarant’s inconsistent out-of-court statement as long as the declarant is testifying as a witness and subject to full cross-examination at the trial itself. See id. at 164. The court specifically noted: “For where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.” Id. at 162.

Even more important is the case of U.S. v. Owens, 484 U.S. 554 (1988). In Owens, the court specifically eschewed the hearsay analysis that had been used in Ohio v. Roberts, 448 U.S. 56 (1980), stating: “We do not think such an inquiry [under Roberts] is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination.” Id. at 560. This statement is of critical import to us, as Crawford specifically overruled the Roberts’ “indicia of reliability” analysis that Owens says is not applicable when the witness testifies at trial. If there was any doubt about this interpretation, it can be put to rest by the following passage in Owens:

“In that situation [where the hearsay declarant is present at trial and subject to cross-examination], as the court recognized in [Commonwealth v. Green], the traditional protections of the oath, cross-examination and opportunity for the jury to observe the witness’ demeanor satisfy the constitutional requirements. We do not think that a constitutional line drawn by the confrontation clause falls between a forgetful witness’ live testimony that he once believed this defendant to be the perpetrator of the crime, and the introduction of the witness’ earlier statement to that effect.” Id. at 560. (citations omitted)

As we view the purpose and the context of Crawford, we do not find it to present any impediment to the introduction of A.M.’s prior statement as substantive evidence. In this case, I.A. was present to observe A.M.’s testimony. I.A.’s attorney had the opportunity to fully explore A.M.’s prior statement and his explanation for its inconsistency with trial testimony. Under these circumstances where confrontation and cross-examination were scrupulously protected, Crawford does not apply.

IV. CONCLUSION

Based upon Brady and Lively, we conclude that Pennsylvania evidence law would permit introduction of A.M.’s prior statement as substantive evidence. Moreover, our careful review of Crawford leads us to conclude that there are no Sixth Amendment prohibitions that would forbid us from considering A.M.’s prior testimony. Accordingly, A.M.’s prior inconsistent statement was properly considered as substantive evidence and the finding of guilt based thereon should not be disturbed.

ORDER

And now, May 11, 2004, upon consideration of the evidence adduced at the contested hearing and the briefs of the parties, the defendant’s motion for judgment of acquittal is respectfully denied. The district attorney’s office is directed to list this matter for disposition as promptly as possible.

      . To protect confidentiality of those involved, we will refer to all by their initials.

      . The so-called “confrontation clause” affords a criminal defendant with the right to confront the witnesses against him in open court. See U.S. Constitutional Amendment VI.

      . Without question, the statement of A.M. in this case would be considered “testimonial” in nature.

      . In fact, the majority in Crawford felt that it was important to mention that hearsay exceptions such as the ones founded upon business records and dying declarations are to be considered as unaffected by the Crawford ruling.


author: NANOVIC, J.,

text:
    Commonwealth v. Eichele

      C.P. of Carbon County,
    no. 331 CR93.

      William E. McDonald, assistant district attorney, for Commonwealth.

      William B. Eichele, pro se.
    June 15, 2004
   NANOVIC, J.,

— On May 2, 1990, the body of Judith Dashev, a 43-year-old female, was discovered in a drainage ditch along Badger Road in the town of Kirkwood, Broome County, New York. Investigation by the New York State Police revealed that Ms. Dashev was killed by William B. Eichele, the defendant, at the home of Richard Haag located at Lake Harmony, Kidder Township, Carbon County, Pennsylvania sometime between May 1 and May 2, 1990.

Defendant was charged, inter alia, with third-degree murder, aggravated assault and recklessly endangering another person and, following a jury trial, convicted of these offenses on January 20,1994. On March 11,1994, defendant received an aggregate sentence of not less than 10 and no more than 20 years in a state correctional institute to be served consecutive to another sentence previously imposed. Following direct appeal proceedings, defendant’s judgment of sentence became final on January 2, 1996, 90 days after his petition for allowance of appeal was denied by the Pennsylvania Supreme Court. See U.S. Supreme Court Rule 13 (petition for writ of certiorari to review a judgment of sentence is deemed timely when it is filed within 90 days after discretionary review has been denied by the Pennsylvania Supreme Court).

Defendant filed a pro se petition for post-conviction relief, his first, on December 24,2001. See Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46. In accordance with Pa.R.Crim.P. 904(B), counsel was appointed to represent defendant on this petition. On December 31, 2002, we dismissed the petition as untimely. That decision was affirmed by the Pennsylvania Superior Court on September 25, 2003. No further review of the dismissal of defendant’s first petition was requested.

Now before us is defendant’s second petition for post-conviction collateral relief, again pro se, filed on May 17,2004. Defendant again requests appointment of counsel which we will deny. In his second petition, defendant raises numerous issues which have been previously litigated on direct appeal and denied, or found to be untimely in defendant’s earlier PCRA petition. See 42 Pa.C.S. §9544 (previous litigation and waiver). To the extent defendant seeks to raise any additional new issues, such issues likewise are clearly time-barred, with one possible exception, to be addressed in this opinion. Commonwealth v. Palmer, 814 A.2d 700 (Pa. Super. 2002), appeal denied, 574 Pa. 764, 832 A.2d 436 (2003) (the PCRA’s requirement that a petition be filed within one year of the date the judgment becomes final is mandatory and jurisdictional in nature; unless the petitioner can plead and prove that one of the exceptions to this time-bar applies, the court lacks jurisdiction to grant PCRA relief).

Defendant argues that at trial his constitutional right to confront and cross-examine his accusers was denied in light of the United States Supreme Court’s recent decision in Crawford v. Washington, _ U.S. _, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Defendant asserts that Richard J. Kadien was permitted to testify with respect to out-of-court statements by Rob Lishansky and David Harding, and that Deborah L. Otterson was permitted to testify regarding out-of-court statements by Richard Haag. In neither instance does defendant specifically identify the out-of-court statements of which he complains.

On March 8, 2004, the Supreme Court decided Crawford, In that decision, the Supreme Court addressed the issue of the impact of the Sixth Amendment’s confrontation clause on the introduction of hearsay evidence by the Commonwealth in a criminal trial. Previously the court had held that the confrontation clause did not “bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears ‘adequate indicia of reliability.’ To meet that test, evidence must either fall within a ‘firmly rooted hearsay exception’ or bear ‘particularized guarantees of trustworthiness.’ ” Id. at 1358, citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed. 2d 597 (1980). The test was solely one of reliability as determined by the historical basis of the hearsay exception claimed and the facts developed at trial, a legal issue to be decided by the trial judge, and was not dependent on whether the hearsay exception at issue was testimonial in nature or whether the opportunity to cross-examine the declarant of the statement previously existed. Id. at 1369. The opportunity to cross-examine was simply a factor in determining reliability.

In Crawford, after reviewing its historical context and underpinnings, the court held that the confrontation clause only applies to testimonial hearsay, that is, hearsay which is the equal or equivalent of ex parte testimony and that, with respect to testimonial hearsay, such statements may only be admitted if the declarant is actually unavailable for trial and only if the defendant had a prior opportunity to cross-examine.

“Where testimonial statements are involved, we do not think the framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rale. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 1370.

Under the test announced in Crawford, a critical distinction is drawn between hearsay which is testimonial in nature and hearsay which is not.

The hallmark of testimonial statements appears to be solemn declarations or affirmations made in a formal proceeding or formal manner, or in an official setting, for the purpose of establishing or proving some fact which the declarant expects or reasonably should expect will be used for further legal proceedings. Id. at 1364. Nevertheless, the Supreme Court explicitly left open for the future “any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 1374. In doing so, the court also stated: “whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 1374. “Where testimonial evidence is at issue . . ., the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 1374.

In contrast, “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the states flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from confrontation clause scrutiny altogether.” Id. at 1374. Examples of non-testimonial hearsay provided by the court are business records or statements in furtherance of a conspiracy. Id. at 1367. The admissibility of this form of hearsay is dependent on reliability factors for which the prior opportunity to cross-examine is not a necessary condition for admissibility.

We have examined thoroughly the trial testimony of both Kadien and Otterson. Kadien was the senior investigator of the New York State Police first called to the scene when Ms. Dashev’s body was discovered. Kadien oversaw the investigation and prosecution of the case. At no point does Kadien mention Lishansky in his testimony. Kadien’s sole reference to Harding is to identify Harding as an ID specialist who was present when Dashev’s apartment was searched. (N.T., 1/13/94, p. 31.) No out-of-court statements attributable to Harding are referred to. Accordingly, this claim of a constitutional confrontation violation is without any evidentiary basis and clearly without merit.

Otterson was Haag’s girlfriend at the time Dashev was killed. She was present when defendant arrived at Haag’s home at Lake Harmony with Dashev, his girlfriend, at approximately 10 p.m. on April 30, 1990. The evening of May 1, 1990 Otterson and Haag spent the night together in the master bedroom on the second floor of Haag’s home while defendant and Dashev used a bedroom on the first floor. The following morning, at approximately 9 a.m., Haag went to check defendant’s bedroom. Haag had earlier asked defendant to leave and apparently believed he was already gone. When he opened the door, Otterson heard Haag exclaim “Oh, my God!; I can’t believe it. Oh, my God; Don’t go in there.” (N.T., 1/13/94, p. 147.) When Otterson asked, “What’s the matter?”, Haag responded, “I think she’s dead.” (N.T., 1/13/94, p. 147.) Otterson entered the room regardless and observed Dashev lying dead on the floor with her hands tied behind her back, her feet tied together and her head covered with duct tape. (N.T., 1/13/94, p. 148.)

Assuming these are the statements of which defendant complains, they are not only a classic example of an excited utterance, but clearly non-testimonial. By definition, an excited utterance is one made “while the declarant was under the stress of excitement caused by a startling event or condition.” Pa.R.E. 803(a). An excited utterance depends for its reliability, and consequently its admissibility, on being both spontaneous and contemporaneous; it is not the product of deliberation or reflection. Cf. White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (finding that a “spontaneous declaration” was a firmly-rooted hearsay exception — in accordance with the Roberts standard — and, therefore, the Sixth Amendment did not bar its admissibility at trial).

Conceptually, an excited utterance is at the opposite end of the hearsay spectrum from testimonial hearsay. Haag’s statements, as reported by Otterson, do not exhibit any of the hallmarks of a testimonial statement: one which is solemn, deliberate and anticipated to be used formally. These statements, then, are not governed by the Crawford decision and no error occurred in their admission.

For the foregoing reasons, a notice of our intent to dismiss defendant’s petition without a hearing will be issued this same date. The allegations in the petition are insufficient to warrant relief and, because of the time constraints imposed by the PCRA, no purpose would be served by any further proceedings.

ORDER

Notice of Proposed Dismissal of Petition Under Post Conviction Relief Act

And now June 4, 2004, upon consideration of defendant’s petition under the Post Conviction Relief Act, and it appearing that there are no genuine issues of material fact and that petitioner is not entitled to post-conviction collateral relief, and that no purpose would be served by any further proceedings, it is hereby ordered and decreed that the court intends to deny and dismiss the petition for the following reasons:

(1) The issues raised by petitioner have either been fully litigated or could have been previously raised on direct or collateral appeal and are therefore waived.

(2) Petitioner’s petition is untimely being time barred by not only the one-year period of limitations provided for in paragraph 1 of section 9545(b) of the PCRA, but also, with respect to petitioner’s Crawford claim, by the 60-day time limit in section 9545(b)(2).

(3) The testimony of neither Richard J. Kadien nor Deborah L. Otterson was violative of the United States Supreme Court’s recent decision in Crawford v. Washington.

(4) Defendant is entitled to file a response to this order notifying of our intent to dismiss the petition within 20 days of the date of this notice.

For the further reasons more fully stated in our accompanying memorandum opinion of this same date, it is further ordered and decreed that petitioner’s motion for appointment of counsel and request for a hearing be, and the same hereby are, denied. Defendant’s request to proceed in forma pauperis is granted.

      . 18 Pa.C.S. §§2502(c), 2702(a)(1) and 2705, respectively.

      . There is no right to appointment of counsel on a second or subsequent petition for post-conviction collateral relief for which an evi-dentiary hearing is not needed to dispose of the petition. Pa.R.Crim.P. 904(B). For the reasons discussed in the text, no hearing is necessary to dispose of defendant’s petition. Pa. R.Crim.P. 907(1).

      . In contending that this issue is not barred by the PCRA’s one-year period of limitations, defendant relies on the following exception to the one-year time bar appearing in 42 Pa.C.S. §9545(b)(1)(iii): “the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.”
      The PCRA requires that this exception, like the other enumerated exceptions to the one-year time bar, be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. §9545(b)(2). This 60-day time period is likewise mandatory and jurisdictional in nature and must be respected by the court. Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999).
      Defendant’s petition filed on May 17,2004, was filed 70 days after Crawford was decided. Defendant’s attempt to circumvent this statutory requirement by averring in his petition that he immediately filed for relief upon learning of the Crawford decision will not avail defendant. See Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001) (finding late filing under section 9545(b)(2) not excused by petitioner’s incarceration and prompt filing upon learning of the constitutional issue). Notwithstanding our conclusion that defendant’s newly discovered Crawford issue is itself time-barred, for purposes of completeness we will address this issue. Parenthetically, we note that it is also arguable whether the Supreme Court’s recent and clarifying pronouncements in Crawford are retroactive.

      . The Sixth Amendment’s confrontation clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” The same right is protected by Article I, Section 9 of the Pennsylvania Constitution.

      . “[W]hen the declarant appears for cross-examination at trial, the confrontation clause places no constraints at all on the use of his prior testimonial statements.” Crawford v. Washington, _ U.S. _, 124 S.Ct. 1354, 1369 n.9, 158 L.Ed.2d 177 (2004).

      . Other statements which Otterson attributes to Haag were either non-hearsay or offered for a purpose other than the truth asserted. To the extent Otterson testified that she overheard Haag asking defendant to leave, this is the equal of a command or verbal act and not hearsay. Commonwealth v. Jones, 374 Pa. Super. 431, 435, 543 A.2d 548, 550 (1988), appeal denied, 522 Pa. 573, 559 A.2d 35 (1989). That portion of this same conversation in which Otterson stated she heard Haag tell the defendant, “You are not doing the right thing; I don’t know what you are doing,” was specifically stricken by the court and the jury instructed to completely disregard such evidence. (N.T., 1/13/94, pp. 138-39.) When Otterson testified that after defendant had left, Haag received a call — purportedly from defendant — in which the caller requested both Otterson and Haag to leave the home for two hours, defendant’s testimony was to the same effect. (N.T., 1/13/94, p. 149; N.T., 1/18/94, p. 550.) Not only are all of these statements non-testimonial and, therefore, not affected by Crawford, to the extent any of such statements were arguably admitted in error, the error was harmless.