Rick Mirabito.

Charges of felony burglary, felony trespassing and misdemeanor theft were dismissed against Rick Mirabito, District Judge Christian Frey announced on Tuesday afternoon.

The charges were initially filed Jan. 2 before being withdrawn the next day, only to be refiled just over 14 hours later.

Police alleged the former Lycoming County commissioner, 67, of 98 Lamont Drive, Cogan Station, who owns an apartment building at 1005 Vine Ave., evicted tenant Joyleen McClements illegally and took her keys around 11 a.m. on Jan. 1.

McClements was the only witness called by assistant District Attorney Martin Wade at a preliminary hearing Jan. 16.

She testified she first moved into the apartment in August, stating she texted Mirabito’s wife in November that she would be vacating the premises on January 1, due to not being comfortable in the building. She said she later communicated to Mirabito’s wife that she would need more time to be completely out.

Despite that, McClements testified that while visiting a neighboring apartment on Jan. 1, Mirabito came to her apartment, opened the door and went inside, stating that it was Jan. 1 and asking for the key.

McClements said she showed Marabito where the key was while trying to tell him that she needed more time to fully move out.

According to McClements, Mirabito exited the unit while asking, “How long? One day, two days? What?”

She also stated that, in the past, she had asked for 24-hours’ notice before Mirabito or those working for him entered her apartment.

Under cross examination by defense attorney Eric Rymza, McClements acknowledged that she had not provided any notice that she would be out by Jan. 5, the actual date she was fully moved out.

She also stated that at no time during the encounter did she tell Mirabito that he was unwelcome or to leave.

McClements further stated she had not originally intended to contact the authorities but called the non-emergency number only after speaking with her boyfriend.

During closing arguments, Rymza called for all charges to be dismissed, citing a paragraph in the lease giving the landlord and those working for him the right to enter, inspect and carry out repair work in the apartment.

Rymza argued that as the landlord of the property, he had the “license and privilege” to check on the unit on the day of the planned vacation of the premises. He further cited case law ruling that entry with license and privilege can never be considered burglary or criminal trespass.

McClements allowed Mirabito into the apartment, Rymza said, because she knew she was not supposed to be there, also explaining her reluctance to call the police.

Rymza explained away the charge of theft by unlawful taking by pointing out that the key belonged to Mirabito as the owner of the building, stating that she was contractually borrowing the key, a contract which Rymza said she forfeited by breaking the lease by still being on the property Jan. 1.

Rymza called the charges an “outrageous prosecution,” stating that in 25 years of practice, he had never seen such a case, insisting that there are civil laws on the books to deal with tenant-landlord issues.

“This is a raw abuse of prosecutorial power,” Rymza said.

Wade argued that the entry into the apartment was unreasonable, and that Mirabito had granted McClements’ possession of the key by entering into the lease with her.

He further stressed that Jan. 1 had not expired at the point of Marabito’s intrusion.

Wade called the incident an “illegal eviction,” citing landlord-tenant laws that state landlords must go through a court process to force an eviction.

District Judge Christian Frey questioned the need for the affair to be handled in the criminal realm, asking, “isn’t this a contractual issue, not a criminal one?”

Frey stated that even in cases where landlords use a “self help” method of eviction, there are civil remedies that can be pursued.

Frey called the filing of the charges inconsistent with a long-held position of the district attorney’s office of not getting involved in landlord-tenant disputes.

District Attorney Tom Marino previously said he initially withdrew the charges due to concerns his office did not have enough information about the incident and noted the incident’s connection to an underlying landlord-tenant dispute, an area of jurisprudence generally separate from criminal prosecutions.

“My office is not in the landlord-tenant business,” he said at the time.

Still, he said, there are clear procedures and practices for a landlord to pursue eviction before a district judge.

“There is a right way to do things,” Marino said.

In ruling for the defense, Frey found that “Mirabito would have reasonably believed the apartment to be vacant” when he arrived on the morning of Jan. 1, given McClements’ previous communication that she would be out by that date. The commonwealth presented no evidence that McClements had made Mirabito aware that she would need more time to vacate.

In explaining his reasoning, Frey also cited the lease signed between the parties, which stated that the landlord and persons working for them may enter “at reasonable times” to “inspect, make repairs, do maintenance and show the leased property to others.”

The lease “does not require any advanced notice,” Frey said.

In relation to the unlawful taking of the keys, Frey again turned to the lease, which stipulated all keys must be returned at the end of the lease term.

Further, Mirabito did not forcefully remove the keys from McClements’ possession. When asked where they were, McClements “voluntarily and willfully provided them to Mirabito,” Frey said.