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GABRIEL ELIAS v. ENVIRONMENTAL HEARING BOARD COMMONWEALTH PENNSYLVANIA (11/21/73)

decided: November 21, 1973.

GABRIEL ELIAS, NORCHESTER CORPORATION AND BELLA ANGEL, APPELLANTS,
v.
ENVIRONMENTAL HEARING BOARD OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, AND DEPARTMENT OF ENVIRONMENTAL RESOURCES, INTERVENING APPELLEE



Appeal from the Order of the Environmental Hearing Board in case of Department of Environmental Resources v. Gabriel Elias, Norchester Corporation and Bella Angel, Docket No. 72-153.

COUNSEL

Joseph Michael Smith, with him F. Emmett Fitzpatrick, Jr., and Fitzpatrick & Smith, for appellants.

Harriet N. Katz, with her R. Timothy Weston, for intervening appellee.

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

Author: Rogers

[ 10 Pa. Commw. Page 490]

Bella Angel and Norchester Corporation, a Pennsylvania business corporation, is each the record owner of an undivided one-half interest in a tenement known

[ 10 Pa. Commw. Page 491]

    as Warminster Heights in Warminster Township, Bucks County. Bella Angel is the mother of one Gabriel Elias. Gabriel Elias controls Norchester Corporation as well as several other out-of-state corporations which furnish management and certain utility services to Warminster Heights. Gabriel Elias is, in fact, the real owner of Warminster Heights and its manager.

Warminster Heights is a 140 acre tract of land on which are located 158 masonry and 113 frame buildings containing about 1200 dwelling units. It was constructed by the United States Government in 1943 to provide housing for servicemen and their dependents stationed at the Johnsville Naval Air Test Center. In an apparent fit of economy and poor judgment, the United States Government sold Warminster Heights to Gabriel Elias in 1957. Since that time Elias has rented the dwelling units. In 1971, 1107 units were occupied by about 6000 persons, all of whom are poor and many of whom live on public welfare.

Simply stated, Warminster Heights is and has been a notorious slum. It has remained such despite the efforts of the Warminster Township health authorities, the Bucks County Board of Health, and the former Department of Health and the present Department of Environmental Resources of the Commonwealth.

The present litigation was commenced by the issuance by the Department of Environmental Resources of an order requiring the appellants, Gabriel Elias, Norchester Corporation and Bella Angel to correct the unhealthful and dangerous conditions at Warminster Heights. The appellants appealed the order to the Environmental Hearing Board which conducted 13 days of hearings, producing a record of more than 2000 pages of testimony and 152 exhibits. The Environmental Hearing Board entered a 117 page adjudication and lengthy order, which Elias, Bella Angel and Norchester appealed to this court. We allowed intervention by the

[ 10 Pa. Commw. Page 492]

Department of Environmental Resources and by certain tenants of Warminster Heights.

We will not dwell on the conditions at Warminster Heights. The record establishes massive, continuing and serious violations of the Warminster Township Housing Code, the Bucks County Health Department regulations, and the rules and regulations of the Department of Environmental Resources. These include defective wiring, defective heating systems, inoperable toilets, rotted floors, porches, walls, roofs, and window frames, accumulations of waste, rubbish and stagnant surface waters, and mosquito, vermin and rat infestation. Indeed, the appellants do not seriously contest the Board's findings with regard to these conditions. Their brief declares that "appellant is not contending that many of the conditions noted and enumerated at length in the adjudication do not exist on his premises."

The appellants present for our consideration three questions, two of which will not delay us long. One is, that the Department of Environmental Resources has no power to declare the existence at Warminster Heights of a nuisance but that under the law such a determination may be made only by a court. The Department's power is found in The Administrative Code of 1929, §§ 1917-A and 1919-A, Act of April 9, 1929, P.L. 177, added December 3, 1970, P.L. 834, § 20, 71 P.S. § 510-17 and § 510-19, as follows:

Section 1917-A

"The Department of Environmental Resources shall have the power and its duty shall be:

"(1) To protect the people of this Commonwealth from unsanitary conditions and other nuisances, including any condition which is declared to be a nuisance by any law administered by the department;

"(2) To cause examination to be made of nuisances, or questions affecting the security of life and health, in any locality, and, for that purpose, without

[ 10 Pa. Commw. Page 493]

    fee or hindrance, to enter, examine and survey all grounds, vehicles, apartments, buildings, and places, within the Commonwealth, and all persons, authorized by the department to enter, examine and survey such grounds, vehicles, apartments, buildings and places, shall have the powers and authority conferred by law upon constables;

"(3) To order such nuisances including those detrimental to the public health to be abated and removed;

"(4) If the owner or occupant of any premises, whereon any such nuisance fails to comply with any order of the department for the abatement or removal thereof, to enter upon the premises, to which such order relates, and abate or remove such nuisance;

"(5) For the purpose of collecting or recovering the expense of the abatement or removal of a nuisance, to file a claim, or maintain an action, in such manner as may now or hereafter be provided by law, against the owner or occupant of the premises upon or from which such nuisance shall have been abated or removed by the department;

"(6) In making examinations as authorized by this section, the Department of Environmental Resources shall cooperate with the Department of Health, for the purpose of avoiding any duplication of inspection or overlapping of functions."

Section 1919-A

"The Department of Environmental Resources shall have the power, and its duty shall be, to investigate the sanitary condition of tenements, lodging and boarding houses, and, when the same are found to be a menace to those occupying the same, or employed therein, or to be overcrowded, to condemn the same, in such manner and subject to such limitations as may now or hereafter be provided by law, and to notify the owners or agents thereof, in writing, setting forth the unsanitary

[ 10 Pa. Commw. Page 494]

    or overcrowded condition thereof, specifying the changes or alterations which shall be made thereto for the purpose of relieving such conditions, and further specifying the time within such changes or alterations shall be completed or overcrowding relieved: Provided, That in making inspections as authorized by this section, the Department of Environmental Resources shall cooperate with the Department of Labor and Industry, for the purpose of avoiding any duplication of inspection or overlapping of functions.

"For the purpose of making investigations authorized by this section, the officers and agents of the department shall, at all times, have the right of ingress into all tenement, lodging, and boarding houses." Section 1917-A expressly empowers the Department to protect the people of the Commonwealth from unsanitary conditions and nuisances by ordering their abatement or removal. With reference to housing, Section 1919-A authorizes the Department to condemn unsanitary tenements and order changes or alterations in their condition. That a department of state ...


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