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May 19, 1977

Dr. Maurice K. GODDARD, Kenneth Young, Edwin Manbeck, Ralph Matter, Dwight Ralph, Stephen Curran, Robert Stallbaum, William H. Williams, Robert Cochran, Marvin A. Fein, Richard S. Ehmann, Alan Welsh, Thomas Burke, Defendants

The opinion of the court was delivered by: MARSH

 This civil rights action was brought by plaintiff Environmental Aid (AID) pursuant to 42 U.S.C. § 1983 with jurisdiction invoked under 28 U.S.C. § 1343. AID contends that the 16 named defendants *fn1" under color of state law without due process have deprived it of "its constitutional property rights secured by the Constitution" and have caused it damages.

 The complaint in 29 paragraphs and numerous subparagraphs seems to assert that the defendants, acting jointly and severally within their official capacities as secretary of the Department of Environmental Resources (DER) of the Commonwealth of Pennsylvania and employees of DER, deprived AID of its industrial waste treatment plant. AID claims defendants' actions were "arbitrary, abusive and illegal acts" exercised in an "oppressive and discriminatory manner" without a "qualitative and quantative (sic) investigation." It is alleged in the complaint (para. 28) that these acts deprived AID of due process of law and due [just] compensation in violation of the Fifth and Fourteenth Amendments of the Constitution.

 The remaining 13 defendants moved to dismiss the action for the following reasons:

(1) Failure to state a claim. Rule 12(b)(6), Fed.R.Civ.P.
(2) All defendants are immune from suit.
(3) The court lacks or should not exercise jurisdiction over the subject matter.
(4) Plaintiff failed to join necessary or indispensable parties. Rule 12(b)(7) and Rule 19 Fed.R.Civ.P.

 The defendants submitted an affidavit setting forth legal actions brought by the Commonwealth of Pennsylvania against AID and legal actions brought by AID against the Commonwealth in the Common Pleas Court of Lawrence County. Two of these legal proceedings are pending. The facts and exhibits set forth in the affidavit were not denied by AID. No counter-affidavit was submitted by AID. *fn2" Hence, the defendants' motion to dismiss will be treated as a motion for summary judgment. Rule 12(b) Fed.R.Civ.P.

 For the reasons hereinafter set forth, it is the opinion of the court that summary judgment should be granted in favor of the defendants.

 It appears from the affidavit submitted by the defendants that the Commonwealth, after warning AID about polluting the water under and above ground, filed a Complaint in Equity against AID in May, 1972, in the Court of Common Pleas of Lawrence County requesting an injunction restraining AID from depositing industrial wastes in its impoundments which were polluting the water in the vicinity, and requiring AID to remove all such wastes pursuant to the Pennsylvania Clean Streams Law, 35 P.S. § 691.1 et seq. This law declares putting any substance into any waters of the Commonwealth resulting in pollution is a nuisance and criminal and civil penalties are specified. See §§ 691.401, 691.602, 691.605, 691.610.

 The following legal proceedings ensued. A Consent Decree was entered in June, 1972. *fn3" In December, 1973, an Amended Consent Decree was entered. *fn4"

 AID attempted to comply with the decrees but failed to eradicate the pollution.

 On July 20, 1973, a Petition for Contempt was filed by the Commonwealth against AID *fn5" which resulted in a third Consent Decree entered in October, 1973, called a stipulation. *fn6" On the day the third Consent Decree was entered, the President of AID, Mr. Hill, and its Secretary-Treasurer, Mr. Davidson, were present in court with the attorney for AID. This decree contained nine stipulations which were read by the judge and no objection was made. Declarations in open court carry a strong presumption of verity. Cf. Blackledge, Warden v. Allison, 431 U.S. 63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). It was agreed, inter alia, that the unlawful pollution of the water should be abated by the Commonwealth and that a Master should be appointed to liquidate the assets of AID, pay its debts, and reimburse the Commonwealth for the costs of abating the pollution. *fn7"

 In July, 1974, AID filed a "Petition for Opening Judgment" *fn8" seeking to set aside the October, 1973 Consent Decree. The Petition to Open averred, inter alia, that the Commonwealth through its agency DER, and the Environmental Pollution Strike Force, had deprived AID of its property without due process, without equal protection, in violation of the Federal and State Constitutions, pursuant to unlawful coercion and oral threats by agents of the Commonwealth. In addition, the petition requested that the Master appointed to liquidate the assets of AID should cease and desist from his duties and return to AID all assets and monies realized from the liquidation of AID which he held in escrow. It also requested restitution of monies paid by AID or ...

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