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CLEARVIEW LAND DEVELOPMENT CO. v. COMMONWEALTH PENNSYLVANIA AND REDEVELOPMENT AUTHORITY CITY PHILADELPHIA (10/10/74)

decided: October 10, 1974.

CLEARVIEW LAND DEVELOPMENT CO., INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA AND REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLEES. COMMONWEALTH OF PENNSYLVANIA AND REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, APPELLANTS, V. CLEARVIEW LAND DEVELOPMENT CO., INC., APPELLEE



Appeals from the Order of the Court of Common Pleas of Delaware County in case of Commonwealth of Pennsylvania v. Clearview Land Development Co., Inc., No. 12666 of 1969.

COUNSEL

Joseph P. Mylotte, with him Alvin S. Ackerman and Ackerman and Mylotte, for Clearview Land Development Co., Inc.

Douglas R. Blazey, Assistant Attorney General, with him Karin W. Carter, Assistant Attorney General, for Commonwealth.

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

Author: Crumlish

[ 15 Pa. Commw. Page 304]

Clearview Land Development Co., Inc. (Clearview), the owner and operator of a forty acre landfill or garbage and refuse disposal site in Darby, Pennsylvania, has appealed from a final order of the Court of Common Pleas of Delaware County, dated August 7, 1973, which ordered closure of Clearview's solid waste disposal operation by September 30, 1973. Clearview was further directed to undertake certain affirmative actions before and after the above closure date to abate

[ 15 Pa. Commw. Page 305]

    the public nuisance found to have been created by its operations and to comply with various environmental protection laws of the Commonwealth. Clearview's principal focus on appeal is whether a court of equity has authority to order these affirmative acts. The Department of Environmental Resources (Commonwealth) and the Redevelopment Authority of the City of Philadelphia (Redevelopment Authority), have filed a cross-appeal to this order contending that the court below erred in requiring Clearview to final grade portions of the site with six (6) inches of compacted earth when departmental regulations required a two (2) feet thick final cover.

The instant controversy was precipitated by the filing of a complaint in equity by the then Department of Health on October 7, 1969, to enjoin Clearview's continued operation of its garbage dump which was averred to be a public nuisance. The complaint consisted of four counts: (1) the open burning of solid wastes in violation of an Air Pollution Abatement Order issued under the Air Pollution Control Act;*fn1 (2) the discharge of liquid leachate into Cobbs and Darby Creeks which bordered the site in violation of Section 401 of The Clean Streams Law;*fn2 (3) the open "ponding" of garbage and waste and other operational violations of departmental rules and regulations;*fn3 and (4) violation of the Township of Darby Dumping Ordinance of 1966.*fn4 A fifth count was subsequently amended to the complaint alleging Clearview's failure to obtain a permit to operate its landfill as required by Section 7 of the Pennsylvania

[ 15 Pa. Commw. Page 306]

Solid Waste Management Act.*fn5 In implementation of this last count, the Commonwealth filed an application for a preliminary injunction on May 1, 1970 to restrain Clearview's continued operation without a permit. This petition was denied by the court below on May 18, 1970.

After several months of discovery and further delays not explained on this record, Clearview filed preliminary objections to the amended complaint on December 1, 1970. These objections (laches, the failure of the Commonwealth to exhaust its statutory remedies, and a motion for more specific pleadings) were ultimately dismissed by the lower court on October 19, 1972. Nine days after Clearview filed the above preliminary objections, however, the Commonwealth filed a second application for a preliminary injunction, requesting in lieu of immediate closure, that the court order remedial site improvements and operational changes by Clearview to bring it in compliance with departmental regulations. The threat of injunctive relief apparently spurred Clearview into extensive settlement negotiations with the Commonwealth and Redevelopment Authority,*fn6 culminating in an interim consent order entered by the court on November 16, 1971 which incorporated much of the relief requested by the Commonwealth's injunction application. On January 30, 1973, the ...


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