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COMMONWEALTH PENNSYLVANIA EX REL. ALLEGHENY COUNTY HEALTH DEPARTMENT v. UNIVERSITY PITTSBURGH. ALLEGHENY COUNTY HEALTH DEPARTMENT (08/02/78)

decided: August 2, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. ALLEGHENY COUNTY HEALTH DEPARTMENT, BUREAU OF AIR POLLUTION CONTROL
v.
UNIVERSITY OF PITTSBURGH. ALLEGHENY COUNTY HEALTH DEPARTMENT, BUREAU OF AIR POLLUTION CONTROL, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. University of Pittsburgh, No. S.A. 1238 of 1975.

COUNSEL

Gene C. Bertsch, Special Assistant County Solicitor, with him Alexander J. Jaffurs, County Solicitor, and James D. Belliveau, Special Assistant County Solicitor, for appellant.

Frank J. Lucchino, with him Lucchino, Gaitens & Hough, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judges Crumlish, Jr.

Author: Crumlish

[ 37 Pa. Commw. Page 118]

The County of Allegheny (County) commenced this action by filing a summary complaint charging the University of Pittsburgh (University) with a violation of a provision of the Rules and Regulations (Regulations) of the Allegheny County Health Department, Bureau of Air Pollution Control (Department). The specific allegation charged that the University caused or allowed the emission of visible air contaminants from an incinerator located on the University Campus. After hearing, a justice of the peace found that the University had committed the violation in question

[ 37 Pa. Commw. Page 119]

    and imposed fines and costs totaling $211.00. From that adjudication, the University filed a timely appeal to the Court of Common Pleas. After a de novo hearing, that court held that the County had failed to show that the violation was caused either by improper operation of the incinerator by the University or by materials placed in it by the school and, therefore, reversed the justice of the peace. We affirm.

Preliminarily, the University raises for our consideration its contention that because the proceedings below were criminal in nature, and since those proceedings terminated with a finding in the University's favor, the County may not appeal that adjudication to this Court. The University relies upon the doctrine of double jeopardy to support its contention. We disagree.

Section 12(a) of the Air Pollution Control Act (Act), Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. § 4012(a), provides in part:

(a) Nothing in this act shall prevent counties, cities, towns, townships or boroughs from enacting ordinances with respect to air pollution which will not be less stringent than the provisions of this act or the rules and regulations promulgated pursuant to its provisions.

Section 9(a) of the Act, 35 P.S. § 4009(a), provides:

(a) Summary Offense. Any person as herein defined, except a department, board, bureau or agency of the Commonwealth, engaging in unlawful conduct as set forth in section 8 of this act, shall, for each offense, upon conviction thereof in a summary proceeding before a district justice, magistrate, alderman or justice of the peace, be sentenced to pay the costs of prosecution and a fine of not less than ...


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