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COMMONWEALTH PENNSYLVANIA v. DERRY TOWNSHIP (01/29/76)

decided: January 29, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
DERRY TOWNSHIP, WESTMORELAND COUNTY, ET AL. (TWO CASES), APPEAL OF YOUNGSTOWN BOROUGH. APPEAL OF DERRY TOWNSHIP



COUNSEL

Jon M. Lewis, Mahady & Mahady, Greensburg, for appellant Youngstown Borough.

Clarence F. McBride, Greensburg, for appellant Derry Tp.

Robert J. Shostak, Sp. Asst. Atty. Gen., Clarence F. McBride, William C. Stillwagon, Greensburg, George M. Lynch, Latrobe, for appellees, Derry Tp. and others.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring and dissenting opinion, in which Manderino, J., joins.

Author: Roberts

[ 466 Pa. Page 34]

OPINION OF THE COURT

This is an appeal*fn1 from orders of the Commonwealth Court affirming both a finding that appellant Derry Township (Derry) was in contempt of an administrative order and an order denying appellant Youngstown Borough (Youngstown) representation on the Latrobe Municipal Authority (Authority).

In September 1971, the Department of Environmental Resources (DER) issued administrative orders to Youngstown, Derry and Unity Township (Unity) requiring, inter alia, negotiation and agreement with Latrobe Borough (Latrobe) and Authority for the regionalization

[ 466 Pa. Page 35]

    of Authority's sewage treatment plant. An explanation of the right to and procedure for appealing the order was attached to the above administrative orders. No appeal was taken by Derry, Youngstown or Unity from these administrative orders.

For the next nine months, negotiations were held among Youngstown, Derry, Unity, Latrobe and Authority, but no final agreement was executed. During these negotiations representation of Derry, Unity and Youngstown on Authority's board emerged as a major bar to an agreement. In June 1972 DER issued administrative orders to Latrobe and Authority to negotiate and agree with Derry, Youngstown and Unity on a plan for the regionalization of Authority's sewage treatment plant. Authority and Latrobe have appealed this administrative order to the Environmental Hearing Board. Both appeals are still pending.

On July 10, 1972, DER filed a petition in Commonwealth Court seeking to have Derry, Youngstown, Unity, Latrobe and Authority held in contempt for failing to comply with the regionalization orders issued September 10, 1971, and June 19, 1972.

On July 25, 1972, an evidentiary hearing on the contempt petition was held before Judge Kramer of the Commonwealth Court.*fn2 On July 31, 1972, Judge Kramer entered an order which found Derry in contempt for failure to comply with the order of September 10, 1971, which required an agreement, and not merely negotiations, for the regionalization of Authority's sewage plant, and further ordered Derry to negotiate such an agreement within ten days. If these negotiations failed, the master was to mediate the talks for seven days. If mediation failed, the Commonwealth Court would issue an order directing the parties to join an agreement to be prepared by the court. The order further tentatively accepted an agreement between Youngstown, Unity, Latrobe

[ 466 Pa. Page 36]

    and Authority. No agreement between Derry and Authority has yet been reached.

On August 9, 1972, Derry filed exceptions to Judge Kramer's order. On November 21, 1973, Commonwealth Court issued two orders with opinions. The first mandated compliance with the administrative orders calling for a regionalization agreement, and also accepted a representation formula which provided for the expansion of the Authority Board to seven members, with one member each for Derry, Youngstown, and Unity. The second order dismissed the exceptions of Derry.

On January 25, 1974, Judge Kramer in a memorandum opinion and order accepted an agreement which changed the representation requirements for the Authority Board from the November 21, 1973, order of the Commonwealth Court. The agreement involved all of the parties except Derry. Youngstown and Derry have appealed the above orders.

Since these appeals are complex, we shall discuss each ...


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