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COMMONWEALTH PENNSYLVANIA v. FOLCROFT LANDFILL CORPORATION (03/16/71)

decided: March 16, 1971.

COMMONWEALTH OF PENNSYLVANIA
v.
FOLCROFT LANDFILL CORPORATION



Complaint in equity seeking injunctive relief.

COUNSEL

Douglas R. Blazey, Special Assistant Attorney General, with him Carl L. Mease, Assistant Attorney General, and Fred Speaker, Attorney General, for plaintiff.

R. J. Woodside, with him Woodside, Woodside & Zwally, Guy G. deFuria, Fronefield, deFuria & Petrikin, for defendant.

President Judge Bowman and Judges Kramer and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[1 Pa. Commw. 356 Page 357]

This is an original jurisdiction action in equity brought by the Commonwealth of Pennsylvania seeking injunctive relief against the Folcroft Landfill Corporation (Folcroft) under and within the purview of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. (Act No. 223), 17 P.S. 211.101.

According to the averments of the complaint, Folcroft operates a sanitary landfill or solid waste disposal facility in the Borough of Folcroft, Delaware County. This facility comprises approximately 200 acres of what is known as the Tinicum Marsh, which is an esturine marsh of about 1,300 acres abutting on both sides of Darby Creek in Delaware and Philadelphia Counties. The Folcroft Landfill has been in operation for about eight years.

The Commonwealth's complaint alleges violations of (1) The Pennsylvania Solid Waste Management Act, Act of July 31, 1968, P.L. , 35 P.S. 6001, as amended; (2) The Clean Streams Law, Act of June 22, 1937, P.L. 1987, 35 P.S. 691, as amended; (3) The Air Pollution Control Act, Act of January 8, 1960, P.L. 1959, 35 P.S. 4001, as amended; and (4) The Fish Law of 1959, Act of December 15, 1959, P.L. 1779, 30 P.S. 1, as amended.

Folcroft filed preliminary objections setting forth the defense of laches, the existence of an adequate remedy at law, and a want of specificity in the complaint. Thereafter the Commonwealth filed preliminary objections in the nature of a demurrer to Folcroft's preliminary objections. After the filing of the preliminary objection pleadings by both parties, they stipulated to withdraw all preliminary objections except those which relate to the issue of laches.

In view of the fact that the preliminary objections of the Commonwealth are in the nature of a demurrer,

[1 Pa. Commw. 356 Page 358]

    we must assume that all of the allegations raised by Folcroft in its preliminary objections are admitted by the Commonwealth for the purpose of disposing of the preliminary objections of the Commonwealth. Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962); Ross v. Metropolitan Life Insurance Company, 403 Pa. 135, 169 A.2d 74 (1961); Dumont Television & Radio Corporation v. Franklin Electric Company, 397 Pa. 274, 154 A.2d 585 (1959); Erie v. Gulf Oil Corporation, 395 Pa. 383, 150 A.2d 351 (1959); Silver v. Korr, 392 Pa. 26, 139 A.2d 552 (1958).

The pertinent allegations of Folcroft's preliminary objections are that (1) Folcroft utilizes equipment in connection with the operation of the landfill valued at approximately $450,000; (2) that Folcroft has been operating its landfill operation for approximately eight years; (3) that the Commonwealth, through certain state officials, aided Folcroft in obtaining permission to operate the landfill from the Borough of Folcroft by having members of the Department of Health explain landfill operations to the borough officials; and (4) that agents of the Commonwealth regularly inspected ...


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