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ROYAL INDEMNITY COMPANY v. COMMONWEALTH PENNSYLVANIA (12/19/78)

decided: December 19, 1978.

ROYAL INDEMNITY COMPANY, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES; THE TOWNSHIP OF WILKINS; TURNWAY CORPORATION; AND JOSEPH SOFFER AND VIOLET SOFFER, HIS WIFE, DEFENDANTS



Original jurisdiction in case of Royal Indemnity Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, the Township of Wilkins, Turnway Corporation and Joseph Soffer and Violet Soffer, his wife.

COUNSEL

James F. Manley, with him Burns, Manley & Little, for petitioner.

Richard S. Ehmann, Assistant Attorney General, and John Daley, with them, Stanley R. Geary, Legal Assistant, and Brennan, Robins & Daley, for respondents.

Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 39 Pa. Commw. Page 323]

The Department of Environmental Resources (DER) and Turnway Corporation (Turnway) have

[ 39 Pa. Commw. Page 324]

    filed preliminary objections to a petition for declaratory judgment filed by Royal Indemnity Company (Royal) in this Court.

Joseph and Violet Soffer constructed a sanitary sewer line to serve their properties located in Wilkins Township, Allegheny County, Pennsylvania. Wilkins Township sought and obtained a permit for this line from the DER. Turnway sued the Soffers in the Court of Common Pleas of Allegheny County contending that the sewer was on its land. The chancellor, Judge Loran L. Lewis, held for Turnway and ordered the Soffers to remove the sewer from Turnway property and to pay money damages to Turnway for the trespass until the sewer was removed. The Soffers appealed this order to the Supreme Court of Pennsylvania and Royal acted as surety on the appeal bond. The Soffers' appeal was unsuccessful. Turnway Corporation v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975).

DER, fearful of the consequences of the removal of a sanitary sewer without other provision for disposal of the effluent, issued an order directing the parties not to comply with the court's order in a manner which would violate The Clean Streams Law*fn1 by polluting the waters of the Commonwealth.

Turnway demanded compliance with the court order from the surety, Royal, and the Soffers seem to have directed Royal not to comply based on the DER order. Royal, believing itself to be the subject of conflicting demands of the parties and incompatible orders of the court and DER, filed the petition for declaratory judgment before us and, we understand, a similar petition in the Court of Common Pleas of Allegheny County.

[ 39 Pa. Commw. Page 325]

One of a number of preliminary objections to Royal's petition interposed by DER and Turnway raises the matter of this Court's jurisdiction over the subject matter, based on the assertion that DER is not an indispensable party. We agree that DER is not an indispensable party and will sustain the ...


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