dissenting.
Here, an “Act of God” directly caused the train derailment leading to the pollution of the Youghiogheny River. Consequently, I believe that CSX Transportation, Inc. (CSX) cannot be held legally responsible for the corn syrup leakage and the subsequent pollution of the river. CSX neither consciously intended to pollute the river nor consciously failed to prevent that pollution.
Section 2504(a)(2) of the Fish and Game Code, Act of October 16, 1980, P.L. 996, 30 Pa.C.S. § 2504(a)(2), permits the punishment of entities, such as CSX, who are entirely innocent of either the intent to pollute or a conscious omission to prevent pollution. As such, the statute fails to create a standard by which CSX can fairly be required to conform its conduct. Thus, I believe that section 2504(a)(2) of the Fish and Game Code, 30 Pa.C.S. § 2504(a)(2), violates CSX’s due process rights.
Accordingly, I would affirm the trial court’s decision. Indeed, due to the trial court’s cogent and thorough analysis of the issue, I would adopt the trial court’s opinion, which I attach to this dissent.
ATTACHMENT
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, PENNSYLVANIA
CRIMINAL DIVISION Commonwealth of Pennsylvania
vs.
CSX Transportation, Inc., Defendant
No. 3225 C 1991
OPINION AND ORDER
BY: RICHARD E. McCORMICK, Jr., Judge
In this prosecution for a violation of a provision of the Fish and Boat Code, 30 Pa.C.S.A. § 2504(a)(2), Pollution of waters, the defendant raises certain federal and state constitutional matters in a Motion to Quash the Information. Essentially, the defendant asks this Court to declare the particular statutory provision unconstitutional as violative of due process pi’otections, and because it is unconstitutionally vague in that regard.
The defendant is a corporation that transports various substances by railroad car in interstate commerce throughout the United States. On August 23,1989, it is alleged that the defendant had railroad tank cars containing certain substances travelling on railroad tracks at the unincorporated town of Reduction in South Huntingdon Township, West-moreland County, along the Youghiogheny River. As a result of heavy rainfall and flooding in that vicinity, the railroad tracks holding the railroad cars in question were washed out from under the railroad cars, causing a derailment and damage to the tanks, and resulting in the spillage of certain substances potentially deleterious or destructive to fish, into the river. Two years less one day later, the Pennsylvania Fish Com*1334mission caused a charge of pollution of waters to be filed against the defendant.
In pertinent part, the statute in question reads:
“(a) General rule. — No person, regardless of intent shall:
(2) Allow any substance, deleterious, destructive or poisonous to fish, to be turned into or allowed to run, flow, wash, or be emptied into any waters within or bordering on this Commonwealth.”
Penalties for this offense, a misdemeanor of the third degree, are a fine of not less than $250.00 nor more than $5,000.00 or imprisonment not exceeding 90 days, as well as additional fines of $10.00 for each fish killed.
The defendant complains that the Commonwealth has charged it with a crime, the statutory description of which violates its rights to due process of law under the United States Constitution, Amendment XIV, and its rights pursuant to the law of the land under the Pennsylvania Constitution, Article 1, Section 9. The term “due process of law” and the term “law of the land” are to be considered legal equivalents. Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), aff'd. 517 Pa. 192, 535 A.2d 575 (1987).
This Court acknowledges that it should endeavor, in any way possible, to resolve any issues raised on constitutional grounds, with reference to nonconstitutional matters. Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981). Principles of judicial restraint require such a resolution.
The defendant’s objection is that, as a criminal provision that specifically imposes liability “regardless of intent,” that is, without a required showing of criminal intent or mens rea, the statute in question must pass certain constitutional guidelines, and this statute does not.
At common law, it was recognized that “an injury can amount to a crime only when inflicted by intention.” Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The element of criminal intent was a requisite element of all crimes. Lawmaking bodies recognized the need to sanction certain results as being violative of the public welfare as society became more sophisticated and the potentials for harm to the populace increased by the happenstances of progress. Departures from the common law. standard of required criminal intent were countenanced in those areas “of neglect where the law requires care, or inaction where it imposes a duty.” Morissette, above. Often times, sanctioned activity or inactivity has been countenanced in an area where the law has sought to minimize the overall risks of danger to the general population.
Thus, it is clear that we start with the general proposition that proof of a crime requires or presumes criminal intent. Statutes which find criminality without criminal intent must be shown to meet due process requirements, or meet standards of criminal liability as set forth statutorily.
Such strict criminal liability statutes ordinarily proscribe some kind of affirmative conduct. Commonwealth v. Heck, above, and certain of Pennsylvania’s game laws, for example. For a statute to properly prohibit unintentional conduct, it must have as a standard, either per se blameworthiness, United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), or a situation in which the accused would not be surprised to learn that the conduct prohibited by the statute may be sanctioned as criminal conduct. U.S. v. Freed, above. See also, United States v. Engler, 806 F.2d 425 (1986) certiorari denied Engler v. United States, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). Although it is also applicable in an analysis of the void for vagueness of the statute argument, it is equally true in this analysis that the statute in question must provide standards by which a potential wrongdoer might measure their conduct so as to avoid criminal liability. “The accused, if he does not will the violation, usually is in a position to prevent it with no *1335more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” Morissette, above.
The Pennsylvania Crimes Code offers specific direction in this regard. While it is true that the act in question is not part of the Crimes Code, nevertheless that title has only been expressly indicated as inapplicable with regard to the penalty provisions. Those rules of construction and principals of culpability contained in the Crimes Code are pertinent and instructive in this instance.
Section 301 of the Crimes Code, 18 Pa.C.S. § 301, sets forth the requirements of either a voluntary act, or an omission to act based on a clearly defined standard, as the basis for criminal culpability.
“(a) General rule. — A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
(b) Omission as a basis of liability. — Liability for the commission of an offense may not be based on an omission unaccompanied by an act unless:
(1) the omission is expressly made sufficient by the law defining the offense; or
(2) a duty to perform the omitted act is otherwise imposed by law.”
As is seen in Section 301, the imposition of criminal liability, even absent any requirement of proof of criminal intent, still requires the showing of a voluntary act or the omission to perform an act of which the actor is capable. In the instance of omission, it must be expressly made sufficient in the statute defining the offense or reflect a duty to perform imposed by law.
The difficulty presented with respect to the statute in question is the standardlessness inherent in the term “allows,” and its use in the Fish and Boat Code. The term is not defined in the Code, but its dictionary definition in relevant part reads: “To let do or happen; permit.” The American Heritage Dictionary. The commonly held meaning of the word in this context has a clearly passive connotation, one that does not admit of action or omission to act in circumstances in which the actor would have an awareness that the conduct prohibited constituted criminal conduct. This is precisely what is required by the phrase “(1) The omission is expressly made sufficient by the law defining the offense.”
One can readily conceive of a myriad of situations in which the language of this statute would permit the punishment of persons or entities entirely innocent of either the intent to pollute, or a conscious omission to act to prevent pollution. In these particular circumstances, it was what is known in the insurance parlance as an act of God which directly caused the event which led to the alleged pollution of the river. Could the defendant have anticipated this situation, or was the defendant required to anticipate this situation, and take all necessary actions to prevent it? Just as this situation points out the standardlessness of the statutory language, so too can one predict any number of other scenarios to which criminal liability might attach, absent any omission to act in a way required under applicable concepts of strict liability.
The failure of the statute to create a standard by which the defendant can be fairly required to conform its conduct could be found to violate the due process rights of the defendant, under both the state and federal constitutions. The statute can also be found to be violative of the standards of culpability set forth in the Crimes Code. In positing a standardless possibility of criminal liability, the requirements of Section 301(b)(1) of the Crimes Code have been violated.
While this Court might well find a basis for declaring the legislative enactment herein, the Fish and Boat Code, 30 Pa.C.S.A. *1336§ 2504(a)(2), unconstitutional as argued by the defendant, I will more appropriately grant the Motion to Quash the Information based upon the failure of the statute to set forth a standard of culpability as contemplated by the Crimes Code requirements.
ORDER OF COURT
AND NOW, to wit, this 21st day of October, 1992, based upon the foregoing Opinion, the defendant’s Motion to Quash the Information is hereby GRANTED, the charge is dismissed, and the defendant is discharged. By The Court:
/s/ Richard E. McCormick, Jr.
Judge Richard E. McCormick, Jr.
ATTEST:
Clerk of Courts
cc: Emily L. Smarto, Esquire
James M. Becker, Esquire
Court Administrator’s Office—
Linda Lessick
Westmoreland Law Journal