Appeal from that Order of the Court of Common Pleas of Allegheny County in case of Paul W. Aitkenhead et al. v. Borough of West View et al.
Jerome Mansmann; Fred E. Baxter, Jr.; McVerry, Baxter & Mansmann; John Remington Graham; Frank O. Walther; Floyd V. Winner, for appellants.
Michael S. Alushin, Assistant Attorney General, for Department of Environmental Resources.
Samuel G. Weiss, Jr., for Paul W. Aitkenhead.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Memorandum Opinion by President Judge Bowman.
[ 40 Pa. Commw. Page 548]
This is an appeal from an order of Judge John P. Flaherty, Jr. of the Court of Common Pleas of Allegheny County dated November 16, 1978 preliminarily enjoining the fluoridation of water treated at the West View Water Authority's Neville Island facility. The preliminary decree states in part ". . . Said prohibition shall remain in effect until this Court holds a final hearing upon this matter, or the matter is submitted to, considered by and dealt with by the Pennsylvania Department of Environmental Resources, taking into account the evidence submitted to this Court." By order of this Court dated November 29, 1978, the preliminary injunction was superseded pending disposition of the appeal.
Appellees have filed a motion to dismiss the appeal for mootness on the ground that on or about January 10, 1979, the Department of Environmental Resources denied appellants permission to discontinue fluoridation and ordered that fluoridation continue. Appellees, in their motion, "concede and specifically stipulate that the condition of the aforementioned decree
[ 40 Pa. Commw. Page 549]
dated November 16, 1978 requiring review by the Pennsylvania Department of Environmental Resources has been satisfied and the fluoridation prohibition ordered by Judge Flaherty is now of no effect i.e., appellants are free to continue fluoridation of the municipal water supply."
Appellants have filed an answer to the motion to dismiss which represents that "appellants join with appellees in stipulating that the conditional preliminary decree has been satisfied by the review and ruling of DER and is of no further effect."
While we question appellees' characterization of the order as "requiring" review by DER, we agree with the parties that the preliminary injunction has been dissolved by virtue of DER's action. By its own terms, the preliminary decree was to remain in effect until the occurrence of one of two conditions subsequent. As one of the conditions occurred, the preliminary injunction dissolved and is no longer "in effect."
As the order appealed from is no longer in effect, and the parties so concede, it would appear that this appeal should be dismissed for mootness. Unfortunately, the resolution of this facially simple question is immersed in complexity. Able counsel for appellants argue that we should not dismiss this appeal as moot because there is raised in this appeal a question of the lower court's jurisdiction to issue the preliminary injunction. Invoking the Act of March 5, 1925, P.L. 23, 12 P.S. § 672, appellants assert that the chancellor below has decided a question of jurisdiction and that without review of the question of the lower court's jurisdiction, appellants (defendants below) face the possibility of ...