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TOWNSHIP PLEASANT v. ERIE INSURANCE EXCHANGE AND BUREAU WATER QUALITY MANAGEMENT (12/11/75)

decided: December 11, 1975.

TOWNSHIP OF PLEASANT, WARREN COUNTY, PENNSYLVANIA, PETITIONER
v.
ERIE INSURANCE EXCHANGE AND THE BUREAU OF WATER QUALITY MANAGEMENT, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND THE PENNSYLVANIA FISH COMMISSION



Original jurisdiction in case of Township of Pleasant v. Erie Insurance Exchange and The Bureau of Water Quality Management, Commonwealth of Pennsylvania, Department of Environmental Resources and The Pennsylvania Fish Commission.

COUNSEL

James D. McDonald, Jr., with him Quinn, Gent, Buseck & Leemhuis, Inc., for petitioner.

John M. Wolford, with him MacDonald, Illig, Jones & Britton, for defendant, Erie Insurance Exchange.

Richard S. Ehmann, Special Assistant Attorney General, for defendant, Commonwealth.

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

Author: Kramer

[ 22 Pa. Commw. Page 308]

This case involves a petition for a declaratory judgment filed by the Township of Pleasant under the Uniform Declaratory Judgments Act.*fn1 The petition was filed against the Erie Insurance Exchange (Erie) and two agencies of the Commonwealth, the Bureau of Water Quality Management (Bureau) and the Pennsylvania Fish Commission. The only matter covered by this opinion is an issue raised sua sponte by this Court, i.e., whether we have jurisdiction to entertain this suit. We hold that the Commonwealth agencies are indispensable parties to this suit and that, therefore, we do have jurisdiction.

On or about September 26, 1972, the Township allegedly discharged or permitted the discharge of certain

[ 22 Pa. Commw. Page 309]

    contaminates from a lagoon located on property maintained by the Township. The discharge entered an unnamed tributary of the Allegheny River resulting in a substantial fish kill. On or about July 11, 1973, the Bureau instituted an action for civil penalties before the Environmental Hearing Board in which the Bureau sought damages for the alleged violations of the Clean Streams Law,*fn2 and the rules and regulations of the Department of Environmental Resources. On September 13, 1973, the Fish Commission instituted a civil action in trespass before this Court. No complaint has yet been filed but the action remains pending.

The Township notified its insurance carrier, Erie, of the claims of the two Commonwealth agencies. Erie at first assumed the defense of the matter pending before the Environmental Hearing Board but then withdrew its defense and advised the Township that its coverage under its insurance policy did not extend to claims by agencies of the Commonwealth. On July 2, 1974, the Township filed its petition for a declaratory judgment requesting that judgment be entered declaring (1) that a policy of liability insurance issued by Erie to the Township does extend to any damages which occurred as a result of the discharge from the Township's lagoon; (2) that Erie has the obligation of providing the Township with a proper defense, including counsel fees, in the actions relating to the discharge; and (3) that Erie has the obligation of paying any damages awarded, by way of civil penalty or otherwise, relating to the discharge, up to the amount of its liability limit.

On June 11, 1975, the President Judge of this Court issued an order which stayed further proceedings pending a determination of the issue of this Court's jurisdiction. The ...


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