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BLISS EXCAVATING COMPANY v. LUZERNE COUNTY (06/30/65)

decided: June 30, 1965.

BLISS EXCAVATING COMPANY
v.
LUZERNE COUNTY, APPELLANT



Appeal from decree of Court of Common Pleas of Luzerne County, Jan. T., 1965, No. 3, in case of Bliss Excavating Company, Brook Contracting Corporation, Capone Coal Company et al. v. Luzerne County.

COUNSEL

Peter Paul Olszewski, Solicitor, with him Blythe H. Evans, Jr., Sandor Yelen, and James Lenahan Brown, Assistant Solicitors, for Luzerne County, appellant.

Henry Thalenfeld, with him J. Earl Langan, Andrew Hourigan, Jr., Franklin B. Gelder, Joseph I. Reynolds, III, Israel T. Klapper, Theodore R. Laputka, S. Keene Mitchell, Christopher Powell and Thomas F. Gill, for appellees.

Leon Ehrlich, Deputy Attorney General, for Commonwealth.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring and Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Roberts join in this concurring and dissenting opinion.

Author: Cohen

[ 418 Pa. Page 448]

This is an appeal from a preliminary injunction restraining officers, agents and employees of Luzerne County, inter alia, "from putting into effect or enforcing section 2.05, and its various subsections, of the . . . zoning ordinance of Luzerne County." Section 2.05 and its various subsections regulate the use of land for "Excavation of Sand, Gravel, Coal or Other Minerals and Rock and Peat Moss, for Sale." Plaintiff-appellees are either owners of anthracite coal lands in Luzerne County, which are or may be mined by strip mining methods, or are engaged in the business of strip mining in Luzerne County.

On December 16, 1964, the County Commissioners of Luzerne County resolved to adopt the zoning ordinance, which contains the provisions under attack. The resolution stated that the ordinance was to be effective on January 1, 1965. The ordinance itself, however, provided that it should be effective immediately upon adoption. On the same day that the resolution was passed by the County Commissioners the plaintiffs obtained a preliminary injunction, part of which is set forth above. Plaintiffs alleged that the ordinance was invalid because (1) it was an attempt by the County to legislate on the subject of anthracite strip mining, contrary to the preemption of this subject by the Commonwealth in the Anthracite Strip Mining and Conservation Act of August 13, 1963, P. L. 781, 52 P.S. § 681.2, (2) that the zoning provisions of The County Code, Act of August 9, 1955, P. L. 323, §§ 2020-2039, as amended, 16 P.S. §§ 2020-2039, do not empower Luzerne County to enact zoning ordinances which purport to regulate the business of anthracite strip mining and (3) that, prior to its adoption, the ordinance

[ 418 Pa. Page 449]

    had not been submitted to the State Planning Board for approval, as required by Section 2023(c) of The County Code, supra. They further alleged irreparable harm and the absence of an adequate remedy at law. At the hearing to continue the injunction, held on December 21, 1964, defendant County introduced a petition to dissolve the injunction on the grounds, inter alia, that (1) the ordinance would not be effective until January 1, 1965, (2) that no attempt had been made to enforce the ordinance against the plaintiffs and (3) that plaintiffs had an adequate legal remedy and a statutory remedy which must be pursued. The petition was denied and the preliminary injunction continued until final hearing.

"The scope of appellate review in this type of proceeding is well settled. 'Our uniform rule is that, on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable. . . .'

"A preliminary injunction should only be granted where injury is imminent and, if committed, irreparable and will not generally be awarded where the complainant's right is not clear or where the wrong is not manifest. . . ." Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 48-49, 159 A.2d 681, 683 (1960). In our opinion, it is plain that no grounds existed for the grant of the preliminary injunction.

The action was patently premature and amounted merely to an attempt to obtain an advisory opinion. Regardless of when the ordinance became effective, on December 16 or ...


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