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COMMONWEALTH PENNSYLVANIA v. QUEEN COAL CO. (05/20/71)

decided: May 20, 1971.

COMMONWEALTH OF PENNSYLVANIA
v.
QUEEN COAL CO., OLIVER PAINTER, T/A ALVERTON FUEL CO., AND WILMER MCGIFFIN



Original jurisdiction action in equity to secure relief from alleged violations of the Air Pollution Control Act. Preliminary injunction requested.

COUNSEL

Leonard A. Redlich, with him Robert Y. Cassol, Redlich, Cassol, Redlich & Morocco, and Fred Adams and Ira B. Coldren, Jr., Coldren & Adams, for defendants.

Morris J. Solomon, Assistant Attorney General, with him William M. Gross, Assistant Attorney General, and J. Shane Creamer, Attorney General, for plaintiff.

Judges Crumlish, Jr., Kramer, and Mencer, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[2 Pa. Commw. 28 Page 29]

This case comes within the original jurisdiction of the Commonwealth Court and involves a Complaint in Equity filed by the Commonwealth (plaintiff) against the defendants noted below. Plaintiff seeks to enjoin defendants from operating certain beehive coke ovens located in Westmoreland County.

Defendant, Queen Coal Company, is the owner of the land on which the coke ovens are located. Defendant, Oliver Painter, trading as Alverton Fuel Company, is the lessee of the land. Defendant, Wilmer McGiffin operates the coke ovens under a contract with Painter in the production of coke for sale to third persons.

The complaint alleges:

(1) That defendants did not obtain the necessary permits from the Department of Health prior to commencing operations of the coke ovens in October of 1969;

(2) That the smoke emissions from defendants' coke ovens are denser and darker than allowable under the regulations of the Air Pollution Commission; and

(3) That the operation of the coke ovens constitutes a public nuisance.

The complaint was filed on March 2, 1971, and after hearing on March 18, 1971, this Court refused a motion for a preliminary injunction, and an appeal from that refusal was taken to the Pennsylvania Supreme Court.

Preliminary objections were filed by Painter and McGiffin on March 17, 1971, and by Queen Coal Company on April 5, 1971. These objections were argued before this Court on April 22, 1971. At that argument all of the defendants joined in the presentation of one consolidated brief and argument raising ...


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