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CARROLL E. DITZLER ET AL. v. CITY LEBANON AND NOFIE J. CATALANO (03/03/77)

decided: March 3, 1977.

CARROLL E. DITZLER ET AL.
v.
CITY OF LEBANON AND NOFIE J. CATALANO, COUNCILMAN, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Carroll E. Ditzler, George D. Charles, John R. Albert, Jay A. Felty, Dale M. Yocum, Samuel A. Hartman, II, Charletta K. Weyland, a/k/a Charletta K. Addison, Carl L. Sherk, William E. Checket, Byron L. Clark and Dennis F. Turner v. City of Lebanon and Nofie J. Catalano, Councilman, No. 34, 1975, Equity.

COUNSEL

Samuel G. Weiss, Jr., for appellants.

James T. Reilly, with him Egli, Reilly, Wolfson and Feeman, for appellees.

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

Author: Wilkinson

[ 29 Pa. Commw. Page 70]

Appellants appeal the order of the Lebanon County Court of Common Pleas requiring them to continue the fluoridation of the public water system under their control pending the final disposition of all allowable appeals. We affirm.

[ 29 Pa. Commw. Page 71]

Appellants were informed by the Department of Environmental Resources (DER) in September 1973 that a request to discontinue fluoridation of the public water system had been denied. In February 1974, a resolution for such discontinuation within 90 days was adopted by the city council. On March 22, 1974, appellees sought to enjoin appellants from interfering with the fluoridation program and a temporary injunction was granted on that date. On March 27, 1974, counsel for appellants, appellees and the DER agreed to a stipulation that allowed the appellant city to intervene in an appeal then pending before the Environmental Hearing Board (EHB) from the adverse ruling of the DER. In return, the city agreed not to discontinue fluoridation pending "the final disposition of all allowable appeals provided by the Administrative Code*fn1 and the Appellate Court Jurisdiction Act*fn2 or otherwise." The action in the court below was discontinued upon the allowance of the city to intervene in the appeal before the EHB.

In January 1975, the EHB upheld the DER and refused to permit the city to discontinue fluoridation. That order was reversed by this Court on December 2, 1975 in Department of Environmental Resources v. City of Lebanon, 22 Pa. Commonwealth Ct. 132, 348 A.2d 166 (1975). Appellees filed an appeal to the Supreme Court which was granted and is still pending.

On August 20, 1975, the tank which held the fluoride split and released all of its contents. Although there has been no contention nor evidence that any deliberate or intentional action caused the split, appellants have not fluoridated the water since that date. In November 1975, appellees brought an action for specific

[ 29 Pa. Commw. Page 72]

    performance in the Lebanon County Court of Common Pleas, alleging that the stipulation of March 27, 1974 obligated appellants to reintroduce fluoridation. The court upheld appellees' claim and ordered fluoridation. The court stated:

Plainly and simply put the City of Lebanon agreed to continue the fluoridation of its public water supply system until all allowable appeals are terminated. This event has yet to occur. The City may not take advantage of the unfortunate rupture of its fluoride holding tank to avoid its legal promise and obligation. As we said in the ...


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