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CHARLESTON TOWNSHIP MUNICIPAL AUTHORITY ET AL. v. DEPARTMENT ENVIRONMENTAL RESOURCES ET AL. (03/08/77)

decided: March 8, 1977.

CHARLESTON TOWNSHIP MUNICIPAL AUTHORITY ET AL., PLAINTIFFS
v.
DEPARTMENT OF ENVIRONMENTAL RESOURCES ET AL., DEFENDANTS



Original jurisdiction in case of Charleston Township Municipal Authority and the Supervisors of Charleston Township, Tioga County, Pennsylvania v. Department of Environmental Resources and Maurice K. Goddard, Secretary of the Department of Environmental Resources of the Commonwealth of Pennsylvania.

COUNSEL

George C. Williams, with him Lynn R. Mader, for plaintiffs.

John P. Krill, Jr., Assistant Attorney General, for defendants.

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

Author: Rogers

[ 29 Pa. Commw. Page 128]

Charleston Township Municipal Authority (Authority), created by Charleston Township, Tioga County, has sued the Department of Environmental Resources (DER) in equity seeking an order of this Court reinstating its funding priority status for federal sewerage construction grants, initially established by DER but subsequently revoked. The Authority commenced this lawsuit instead of appealing DER's action to the Environmental Hearing Board (EHB) as allowed by statute. DER has filed preliminary objections, including one asserting lack of equity jurisdiction by reason of the statutory remedy, which we sustain.

On June 4, 1971, DER ordered Charleston Township to construct a sewerage system and sewerage treatment facilities necessary to eliminate water pollution and public health hazards.*fn1 In compliance with the order an engineering firm was engaged to design a sewage collection system.

On November 14, 1972, DER issued an order modifying the June 4, 1971 order and directing the Township to negotiate an agreement with the Borough of Wellsboro (Borough) for the latter to expand its existing treatment facilities to serve both the proposed township collection system and its own requirements. A similar order to negotiate was concurrently issued to Wellsboro and a memorandum of agreement between the Township and Borough was in fact executed on March 19, 1973.

[ 29 Pa. Commw. Page 129]

During 1973 and 1974, DER held hearings to establish statewide project priorities to determine which projects were eligible for federally funded construction grants allocated to Pennsylvania. DER put both the Borough treatment project and the Authority's collection system on the priority list for 1976 funds.

Unhappily, the Borough lost interest in the program of expanded sewerage treatment facilities and in order to make funds available for other projects more likely to proceed, DER in May 1976 removed both the Borough's and the Authority's project from the priority list for federal funding. The Authority's response was this suit which challenges the procedural and substantive validity of DER's action.

DER's preliminary objections say that the Authority could have appealed DER's action to the EHB, and that the availability of this adequate statutory remedy precludes this original action in equity. We agree.

Where an adequate administrative remedy is provided by statute this Court lacks jurisdiction to entertain a suit either in law or equity. Department of Labor and Industry v. Altemose Construction Co., 28 Pa. Commonwealth Ct. 277, 370 A.2d 758 (1977); Retail Clerks Union Pennsylvania State Store Organizing Committee, AFL-CIO v. Commonwealth, 24 Pa. Commonwealth Ct. 450, 357 A.2d 244 (1976); St. Joe Minerals Corp. v. Goddard, 14 Pa. Commonwealth Ct. 624, 324 A.2d ...


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