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WEST PENN POWER COMPANY v. MAURICE K. GODDARD (03/18/75)

decided: March 18, 1975.

WEST PENN POWER COMPANY, APPELLEE,
v.
MAURICE K. GODDARD, SECRETARY OF THE DEPARTMENT OF ENVIRONMENTAL RESOURCES AND CLARK L. GAULDING, DIRECTOR OF BUREAU OF AIR QUALITY & NOISE CONTROL, APPELLANTS



COUNSEL

Robert E. Yuhnke, Asst. Atty. Gen., Harrisburg, for appellants.

Rose, Schmidt & Dixon, Harold R. Schmidt, Lawrence A. Demase, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Nix

[ 460 Pa. Page 553]

OPINION OF THE COURT

The Department of Environmental Resources (Department) issued an order pursuant to § 1917-A of the Administrative Code, 1929, April 9, P.L. 177, art. XIX-A, § 1917-A, added 1970, December 3, P.L. 834, No. 275, § 20,

[ 460 Pa. Page 55471]

P.S. § 510-17, effective January 19, 1971 (Supp. 1974-75), directed to West Penn Power Company, appellee, relating to an alleged noise nuisance created by a transformer situated in close proximity to occupied residences. Appellee responded by filing a motion to vacate and/or dismiss order with the Environmental Hearing Board and also requested the Board to grant a stay of enforcement.

While these motions were pending, appellee filed a complaint in equity requesting a preliminary injunction in the Commonwealth Court. The complaint prayed for a restraining order to be issued against the Department and its officials, Maurice K. Goddard, Secretary of the Department of Environmental Resources, appellant, and Clark L. Gaulding, Director of Bureau of Air Quality & Noise Control, appellant. The order sought to prevent appellants from taking further action in connection with the order issued by the Department. The appellants responded by filing preliminary objections asserting, inter alia, that the Commonwealth Court lacked jurisdiction.

After a hearing the court issued a preliminary injunction which provided in pertinent part:

"It is hereby ordered, until final disposition of this case, the Department of Environmental Resources of the Commonwealth of Pennsylvania, its agents and employees, are enjoined from taking any further action to enforce Air Pollution Abatement Order No. 73-703; . . ."

The appellants filed with this Court a petition for a writ of prohibition directed against the Commonwealth Court and in the alternative filed an appeal from the issuance of the preliminary injunction. An answer was filed to the petition for the writ and a motion to quash, styled motion to vacate, set aside and/or quash appeal and objection to jurisdiction, was also filed. This Court entered ...


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