26
Opinion of the Court
Fiore and Scarpone possessed a permit to operate the facility, claimed that their deliberate alteration of a monitoring pipe to hide a leakage problem went so far beyond the terms of the permit that the operation took place without a permit at all. A jury convicted them both of having "operate[d] a hazardous waste storage, treatment or disposal facility" without a "permit." Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993); see Commonwealth v. Fiore, CC No. 8508740 (Ct. Common Pleas, Allegheny Cty., Pa., Jan. 19, 1988), p. 2, App. 6 (marking date of conviction as Feb. 18, 1986). The trial court upheld the conviction, despite the existence of a permit, for, in its view, the "alterations of the . . . pipe represented such a significant departure from the terms of the existing permit that the operation of the hazardous waste facility was 'un-permitted' after the alterations were undertaken . . . ." Id., at 48, App. 44.
2. Fiore appealed his conviction to the Pennsylvania Superior Court. See 42 Pa. Cons. Stat. § 742 (1998) (granting the Superior Court jurisdiction over all appeals from a final order of a court of common pleas). That court affirmed the conviction "on the basis of the opinion of the court below." Commonwealth v. Fiore, No. 00485 PGH 1988 (May 12, 1989), pp. 2-3, App. 99-100. The Pennsylvania Supreme Court denied Fiore leave to appeal on March 13, 1990; shortly thereafter, Fiore's conviction became final.
3. Fiore's codefendant, Scarpone, appealed his conviction to the Pennsylvania Commonwealth Court. See 42 Pa. Cons. Stat. § 762(a)(2)(ii) (1998) (granting the Commonwealth Court jurisdiction over appeals in regulatory criminal cases). That court noted the existence of a "valid permit," found the Commonwealth's interpretation of the statute "strained at best," and set Scarpone's conviction aside. Scarpone v. Commonwealth, 141 Pa. Commw. 560, 567, 596 A. 2d 892, 895 (1991). The court wrote:
"The alteration of the monitoring pipe was clearly a violation of the conditions of the permit. But to say that
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