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PENNSYLVANIA GAS AND WATER COMPANY v. JACOB G. KASSAB (07/23/74)

decided: July 23, 1974.

PENNSYLVANIA GAS AND WATER COMPANY, STEGMAIER BREWING COMPANY, JOHN WATKINS AND FRANCIS ZIRNHELT, PLAINTIFFS,
v.
JACOB G. KASSAB, GRACE M. SLOAN AND KAMINSKI BROTHERS, INC., DEFENDANTS



Original jurisdiction in case of Pennsylvania Gas and Water Company, Stegmaier Brewing Company, John Watkins and Francis Zirnhelt v. Jacob Kassab, Grace M. Sloan and Kaminski Brothers, Inc.

COUNSEL

Carroll F. Purdy, with him Charles E. Thomas, A. Richard Caputo, Metzger, Hafer, Keefer, Thomas and Wood and Shea, Shea & Caputo, for plaintiffs.

Harry C. Jackson, Assistant Attorney General, with him David A. Johnston, Jr., Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for defendants, Kassab and Sloan.

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

Author: Rogers

[ 14 Pa. Commw. Page 565]

Before us for disposition is the motion of defendants, Jacob G. Kassab and Grace M. Sloan, for judgment on the pleadings pursuant to Pa. R.C.P. No. 1034.

The pleadings consist of a complaint in equity, an answer and new matter filed in behalf of defendants Kassab and Sloan, an answer without new matter filed by the defendant Kaminski Brothers, Inc., and the plaintiffs' reply to the Kassab's and Sloan's new matter.

Accepting, as we must, on this motion, all well pleaded allegations of the plaintiffs' pleadings as true and rejecting as untrue allegations of the defendants' pleadings denied by the plaintiffs, we ascertain the following to be facts and issues for the purpose of our present inquiry:

The plaintiff, Pennsylvania Gas and Water Company, is a public utility providing water service in the City of Wilkes-Barre and its environs, and the owner

[ 14 Pa. Commw. Page 566]

    and operator of a reservoir which supplies water to approximately 25,000 persons. The plaintiffs, Stegmaier Brewing Company, John Watkins and Francis Zirnhelt are customers of Pennsylvania Gas and Water Company, receiving and consuming water from Pennsylvania Gas and Water Company's said reservoir. The defendant, Jacob G. Kassab, is the Secretary of Transportation of Pennsylvania, and the defendant, Grace M. Sloan, is the Treasurer of Pennsylvania. The defendant Kassab in his official capacity has executed a contract with the defendant, Kaminski Brothers, Inc., under which the latter will do work in the relocating, grading, reconstruction and widening of a portion of a public highway of the Commonwealth. The project authorized by Kassab to be performed by Kaminski involves the proposed expenditure of funds from the Motor License Fund of the Commonwealth to which the plaintiffs have contributed by the payment of title registration and license fees, fuel taxes and other sums. The highway project will cause runoff of earth, soils, minerals and other impurities into Pennsylvania Gas and Water Company's reservoir which will pollute it and reduce its storage capacity. The pollution which will thus occur will violate the plaintiffs' rights as established in Art. I, section 27 of the Pennsylvania Constitution*fn1 and the policy of the Commonwealth expressed in a number of statutes to assure the public of a supply of pure water. The following paragraphs of the complaint state its material bases:

[ 14 Pa. Commw. Page 567]

"24. Defendant Kassab in planning, approving and implementing a project which pollutes streams of the Commonwealth and a public ...


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