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COMMONWEALTH PENNSYLVANIA v. WASHINGTON TOWNSHIP (02/15/74)

decided: February 15, 1974.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER,
v.
WASHINGTON TOWNSHIP, FAYETTE COUNTY; JEFFERSON TOWNSHIP, FAYETTE COUNTY; MUNICIPAL AUTHORITY OF THE BOROUGH OF FAYETTE CITY, FAYETTE COUNTY; AND MUNICIPAL AUTHORITY OF THE TOWNSHIP OF WASHINGTON, AND THE ELECTED OFFICIALS OF SAID MUNICIPALITIES, RESPONDENTS



Original jurisdiction in case of Commonwealth of Pennsylvania v. Washington Township, Fayette County; Jefferson Township, Fayette County; Municipal Authority of the Borough of Fayette City, Fayette County; and Municipal Authority of the Township of Washington; and the Elected Officials of said Municipalities.

COUNSEL

Dennis J. Harnish, Special Assistant Attorney General, for petitioner.

William A. Tantlinger, with him Philip T. Warman, for respondents.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 12 Pa. Commw. Page 274]

This case was commenced by the filing of a petition intended to come within the original jurisdiction of the Court by the Commonwealth of Pennsylvania (Commonwealth) against Washington Township, Jefferson Township, Municipal Authority of the Borough of Fayette City, and the Municipal Authority of the Township of Washington, all located in Fayette County (hereinafter referred to as Respondents). In its petition, the Commonwealth seeks to enforce final orders of the Department of Environmental Resources (DER) requiring the Respondents to negotiate and enter into agreements for the planning, designing, financing, constructing and operation of a sewage facility for a watershed within the boundaries of the Respondents' respective territories. The petition alleges that the Respondents

[ 12 Pa. Commw. Page 275]

    either failed to appeal or withdrew appeals from the various orders of DER. The petition specifically states that it is filed pursuant to Section 210 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, art. II, § 210, as amended, 35 P.S. § 691.210, under which DER alleges authorization to seek the enforcement of orders issued pursuant to Section 203 of The Clean Streams Law, 35 P.S. § 691.203.

On the date set for hearing on the petition, viz., June 18, 1973, the Municipal Authority of the Borough of Fayette City filed preliminary objections. At that hearing the Municipal Authority of Washington Township orally announced that it would file preliminary objections and did so on July 2, 1973. Although inarticulately drawn, these preliminary objections are similar and are in the nature of a demurrer in that they pray for a dismissal of the petition on the basis that the Commonwealth has instituted this suit improperly under Section 210 of The Clean Streams Law, 35 P.S. § 691.210. Under this contention, it is argued that Section 210 is restricted, by the language of the statute, to enforcement of DER's orders through sanctions. The Respondents' reasoning is that any enforcement of orders issued under Section 203 of The Clean Streams Law, 35 P.S. 691.203, must be commenced under the procedural provisions of Pa. R.C.P. No. 1007, which provides for the commencing of an action only by a praecipe for a writ of summons, a complaint, or an agreement for an amicable action.

It is the Commonwealth's argument before this Court that even though the 1970 amendments*fn1 to Section 210 of The Clean Streams Law do not specifically spell out an enforcement procedure such as was attempted in this case, this Court should "overlook" any such deficiency in the interest of carrying out the legislative

[ 12 Pa. Commw. Page 276]

    intent of The Clean Streams Law, and further, should "overlook any formal defects in pleading" so as to provide for a speedy abatement of the sewage pollution problems in question.

Although the Commonwealth filed preliminary objections to the Municipal Authority of Washington Township's preliminary objections, based upon a late filing of the preliminary objections, we will dismiss the Commonwealth's preliminary objections for the reason that if the preliminary objections filed by the two authorities are sustained, the effect of such ...


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