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March 19, 1951


Appeal, No. 13, May T., 1951, from decree of Court of Common Pleas of Dauphin County, Equity Docket, No. 1905 and Commonwealth Docket, No. 312, in case of Commonwealth of Pennsylvania ex rel. Clyde S. Shumaker, District Attorney of Butler County et al. v. New York & Pennsylvania Company, Inc. et al. Decree reversed; reargument refused April 16, 1951.


Harry Alan Sherman, with him Clyde S. Shumaker, W. P. Geary, Francis, X. McCulloch, and William D. Henning, for appellants.

Henry S. Drinker, with him John E. Walsh Robert J. Trace, Special Deputy Attorney General, and Lewis H. Van Dusen, Jr., for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell and Ladner, JJ.

Author: Ladner

[ 367 Pa. Page 42]


This is an appeal from the decree of the Dauphin County Court dismissing plaintiffs' bill in equity for lack of jurisdiction of the court over the subject matter of the cause of action.

The action is in equity and was brought by the Commonwealth on relation of Clyde Shumaker, District Attorney of Butler County, and W. P. Geary, District Attorney of Clarion County, certain named persons individually and as officers of the Allegheny County Sportsmen's League, Inc., and by that corporation "on behalf of themselves, individually, as taxpayers and citizens, and all other persons, firms or corporations resident of the Commonwealth of Pennsylvania, similarly affected" against the New York and Pennsylvania

[ 367 Pa. Page 43]

Company, Inc., a New York Corporation, R. M. Jones, Resident Manager, Dr. Norris W. Vaux, Admiral Milo P. Draemel, Richard Maize, Charles A. French, Elmer A. Holbrook, Frank M. Geer and H. L. Brownback. The seven last named, while not so styled, are in the bill of complaint averred to be members of the Sanitary Water Board of the Commonwealth.

The bill was filed to restrain a public nuisance and claims the corporate defendant and its resident manager discharge waste that defiles the waters of the Commonwealth. The bill in substance avers that the corporate defendant operates a pulp and paper mill at Johnsonburg, Elk County, and for a long time prior to the filing of the bill, particularly since August 2, 1948, said mill discharged and continues to discharge into the Clarion River and its tributaries, industrial waste composed of putrescible organic matter, noxious harmful materials and acids, in such quantity and intensity, as to pollute said waters and constitute the same inimical and injurious to the public health, to animal and aquatic life, and to the uses of said waters for domestic and industrial consumption and recreation. It avers that the action of the corporate defendant, and its manager, constitutes a public nuisance and its ill effects are destroying the public waters and tributary lands and have contaminated the air in the Clarion River Basin to the detriment and peril of the health of the residents of the riparian lands in the Clarion River Basin and extending into the Allegheny River south into the City of Pittsburgh.

The bill also avers that the pollution complained of is a public nuisance as declared by Article I, Sec. 3, of the Act of June 22, 1937, P.L. 1987, 35 P.S. 691.3; that the Sanitary Water Board has been notified of the actions of the company and has been petitioned to abate the nuisance on several occasions; that said

[ 367 Pa. Page 44]

Board has approved an application for approval of plans purportedly designed to abate the nuisance and that the company has falsely represented in said application that its program will successfully abate the nuisance; that the company has knowingly misrepresented that it is in the process of eliminating the polluting industrial waste while continuing to discharge in excess of 20 million gallons of polluted water daily into the waters of the Commonwealth.

The prayer of the bill is for a preliminary injunction; for the corporate defendant to be required to answer the bill and to abate permanently the nuisance; asks that the individual defendants constituting the Sanitary Water Board be required to appear and co-operate with plaintiffs to effect the relief sought and that punitive damages be awarded.

The bill was filed December 19, 1949, and a rule to show cause why a preliminary injunction should not be issued was granted returnable January 16, 1950. To this rule the corporate defendant filed answer but that rule has not been disposed of because on January 26, 1950, the corporate defendant also filed preliminary objections questioning the jurisdiction of the court and on the same date filed a petition under the Act of March 5, 1925, P.L. 23, 12 P.S. 673, also challenging the jurisdiction of the court. Separate preliminary objections were filed by the Sanitary Water Board members denying inter alia, that they are proper parties to the bill in their individual capacity.

The plaintiffs filed motions to strike off the preliminary objections because facts were pleaded therein and because the objections were filed too late. The learned court below did not sustain the plaintiffs' motion to dismiss but on the other hand did not consider any question other than that of jurisdiction which it correctly observed was properly before it because of

[ 367 Pa. Page 45]

    defendant's petition filed under the Act of 1925, P.L. 23, 12 P.S. 673, ...

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