No. 452 January Term 1977, C.D. 1976 affirming the Order of the Court of Common Pleas of Cumberland County at 431 Criminal 1975.
Robert E. Yuhnke, Eugene E. Dice, Asst. Attys. Gen., Harrisburg, for appellant.
John M. Eakin, Mechanicsburg, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former J., did not participate in the consideration or decision of this case. O'Brien, J., did not participate in the decision of this case.
Appellee, Locust Point Quarries, Inc. (Quarry) was charged with four counts of violating 25 Pa.Code § 123.1,*fn1 a regulation of appellant, Commonwealth of Pennsylvania, Department of Environmental Resources. Section 4008 of the Air Pollution Control Act*fn2 provides that failure to comply with a regulation adopted pursuant to the Act shall be unlawful, and Section 4009(a) sets forth penalties for conviction of summary offenses which include offenses defined in Section 4008. After a hearing before a district justice in Hampden Township, Quarry was convicted on all four counts, and the court imposed a $2,000 fine and costs.*fn3 Quarry appealed from the decision pursuant to Pa.R.Crim.P. 67 and received a de novo hearing in the Court of Common Pleas of Cumberland County in July of 1975.
After the Commonwealth presented its testimony to the court, Quarry demurred to the evidence. The court sustained the demurrer, holding that, although the Commonwealth witnesses had observed and documented violations of the regulation in the nature of fugitive emissions, the Commonwealth failed to prove an essential element of the cause of action, namely that these emissions had caused or contributed to a condition of air pollution. Commonwealth v. Locust Point Quarries, Inc., 26 Cumb. 20, 72 Pa.D. & C.2d 700 (1975).
The Commonwealth appealed from the order of the Court of Common Pleas to the Commonwealth Court which held a violation of Section 123.1 had been proven. However, the court construed the Department of Environmental Resources regulations to require that Sections 123.1 and 123.13*fn4 be read together and, after finding a failure to prove a violation of Section 123.13, affirmed the order of the Court of Common Pleas. Commonwealth v. Locust Point Quarries, Inc., 27 Pa. Commw. 270, 367 A.2d 392 (1976).
The Commonwealth filed a petition for allowance of appeal to this Court. The petition was granted.
The factual background is as follows:
Robert M. Fink, an "environmental protection specialist" with the Department of Environmental Resources, Bureau of Air Quality and Noise Control, visited Quarry to evaluate air contaminant emissions on four separate days: August 21, 1974, August 26, 1974, August 28, 1974, and September 10, 1974. On each occasion, after ...