No. 550 April Term 1978, Appeal from Order of January 9, 1978, of the Court of Common Pleas of Allegheny County, Civil Div., at Execution No. G.D. 75-16232 and No. 786 July Term 1971, in Equity.
John Daley, Pittsburgh, for appellant.
David H. Ehrenwerth, Pittsburgh, for appellees.
Van der Voort, Spaeth and Lipez, JJ.
[ 265 Pa. Super. Page 358]
This is an appeal from an order directing that execution upon a judgment may proceed only against a supersedeas bond.
The origins of the present case lie in an action in equity brought by appellant to require appellees to remove certain sanitary and storm sewer lines from appellant's property. The decree entered in that case directed the removal of the lines and awarded appellants damages of $7,500 per year, starting August 1970 and continuing until such time as the
[ 265 Pa. Super. Page 359]
lines were removed, plus the additional sum of $245 for expenditures on repairs. Appellees appealed the decree and posted a bond of $75,000, so that the appeal would act as a supersedeas. In April 1975 the Supreme Court affirmed the decree. 461 Pa. 447, 336 A.2d 871 (1975). Appellees petitioned the lower court to modify the decree as affirmed, and to stay execution, but the lower court denied the petition, and on June 10, 1976, by per curiam order, we affirmed. 241 Pa. Super. 564, 358 A.2d 64 (1976).
Thus, it cannot be questioned that appellees were subject to a final decree requiring them to remove the sanitary and storm sewer lines from appellant's property. However, on November 19, 1976, before appellees had removed the lines, the Department of Environmental Resources issued an order stating that if the appellees removed the sanitary sewer lines there would be a "discharge of sewage onto the surface of the ground and into the waters of the Commonwealth." Record at 30a. The order went on to say that this would be a "nuisance" under Section 202 of the Clean Streams Act, 35 P.S. § 691.202 (Purdon's 1977), since appellees did not possess a discharge permit. Record at 31a. Accordingly, the order directed appellees to "take no steps to comply with [the final decree in this case] as to any sewers covered by Sewerage Permit 464S37, which steps would cause or permit a violation of the Clean Streams Law, supra, to occur in Wilkins Township." Record at 32a.
Wilkins Township has appealed this order to the Pennsylvania Environmental Hearing Board. In the meantime, however, in early 1977, appellant caused a writ of execution to be issued against appellees in the amount of $57,306.20 and instructed the sheriff of Allegheny County to post appellees' residence for sale. Appellees petitioned to strike or stay the execution. On June 30, 1977, the lower court did stay the execution "until further order of this Court." On January 9, 1978, the court entered the order that is the subject of this appeal. This order precluded appellant from recovering any damages incurred after November 19, 1976, that is, after the order issued by the Department of Environmental
[ 265 Pa. Super. Page 360]
Resources. The order further provided that in recovering damages incurred before November 19, 1976, that is, damages of $7,500 per year starting August 1970, appellant could proceed only against appellees' ...