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PHILADELPHIA v. FRANKLIN SMELTING AND REFINING COMPANY (12/08/71)

decided: December 8, 1971.

PHILADELPHIA
v.
FRANKLIN SMELTING AND REFINING COMPANY, INC.



Appeal from an Order of the Court of Common Pleas of Philadelphia County, in case of City of Philadelphia v. Franklin Smelting and Refining Company, Inc. and Metals Development Corp., No. 175, June Term, 1971.

COUNSEL

Jeffrey A. Weiner, with him Leonard M. Sagot, John J. Poserina, Jr., Arthur Silverman, and Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellant.

S. Jay Sklar, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Mencer. Dissenting Opinion by Judge Manderino.

Author: Mencer

[ 3 Pa. Commw. Page 628]

The City of Philadelphia (City) filed an action in equity against appellant, Franklin Smelting and Refining Company, Inc.,*fn1 seeking an injunction to prevent appellant from continuing its operation in violation of various provisions of the Philadelphia Air Management Code. The complaint alleged that appellant's operations result in continuous smoke, fumes, oxide and fugitive dust emissions in excess of amounts specified in Regulations adopted by the Air Pollution Control Board pursuant to the Air Management Code. Further, it is alleged that appellant's continued operations constitute a public nuisance per se under the Air Management Code which the City contends entitles it to obtain injunctive relief. The complaint does not plead irreparable harm from appellant's continuous actions.

Appellant filed preliminary objections to the City's complaint in equity questioning the jurisdiction of a court of equity on the ground that the City has an exclusive statutory remedy which it must utilize. The lower court overruled appellant's preliminary objections with leave to file an answer within twenty (20) days. The appellant filed an appeal to the Supreme Court which held that the Commonwealth Court had jurisdiction to hear the appeal and the appeal was remitted to this Court on September 29, 1971. City of Philadelphia v. Franklin Smelting and Refining Company, Inc., 444 Pa. 181, 281 A.2d 463 (1971).

[ 3 Pa. Commw. Page 629]

The Philadelphia Air Management Code was enacted by Philadelphia City Council to carry out the provisions of the Philadelphia Home Rule Charter relating to the Department of Public Health and the Air Pollution Control Board and constitutes legislation in that it is the adoption or enactment of a law by a competent body empowered to so act. Philadelphia v. Sam Bobman Department Store Company, 189 Pa. Superior Ct. 72, 149 A.2d 518 (1959). Accordingly, its provisions have the same effect as would like provisions of a statute of the Legislature. We believe that this case is controlled by Commonwealth v. Glen Alden Corporation, 418 Pa. 57, 210 A.2d 256 (1965), where it was required that the statutory procedures of the Air Pollution Control Act of 1960, January 8, P.L. (1959) 2119, 35 P.S. § 4001 et seq., be strictly pursued and where it was held that equity had no jurisdiction to inquire into a controversy where to do so would obviate a statutory procedure provided by the Legislature for its resolution.

An exception to this rule is provided where pursuit of the statutory procedure, in the particular case, would cause irreparable harm. See Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 339-342, 105 A.2d 287, 294-295 (1954); Wood v. Goldvarg, 365 Pa. 92, 74 A.2d 100 (1950). Here there is no allegation or showing of such irreparable harm so as to bring the present case under this exception.

The City endeavors to avoid the holding in Commonwealth v. Glen Alden Corporation, supra, by contending that Brookhaven Borough v. American Rendering, Inc., 434 Pa. 290, 256 A.2d 626 (1969), controls. Brookhaven merely recognized that the Legislature, by the Act of June 12, 1968, P.L. , No. 92, § 8, 35 P.S. § 4012.1, extended the same cumulative remedies that existed to abate the pollution of waters in this Commonwealth,

[ 3 Pa. Commw. Page 630]

    as contained in the Clean Streams Act of 1937, June 22, P.L. 1987, Art. I, § 1 et seq., 35 P.S. § 691.1 et seq., to the Air Pollution Control Act. After such amendment, equity jurisdiction attaches to ...


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