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decided: April 30, 1980.


No. 161 March Term, 1978, Appeal from Decree of the Commonwealth Court of Pennsylvania, Dated September 22, 1978, at No. 1801 Commonwealth Docket 1978, Granting Preliminary Injunction.


Richard H. Galloway, Ackerman & Galloway, Greensburg, for appellants.

Howard J. Wein, Asst. Atty. Gen., Dept. of Environmental Resources, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Nix

[ 489 Pa. Page 329]


This is an appeal from a preliminary injunction granted by the Commonwealth Court at the behest of the Department of Environmental Resources of the Commonwealth of Pennsylvania (DER), enjoining appellants, Delmar Coward and the Coward Contracting Company from operating a landfill in Westmoreland County, and requiring appellants to remedy the pollution discharged from that landfill. For the reasons below, we affirm the decree of the Commonwealth Court.

For our purposes, this case began on August 16, 1976, when the DER issued the first of two administrative orders directing appellants to submit within 45 days an updated and revised solid waste application and design plan concerning the Westmoreland County landfill, and to submit an application for a revised and modified Industrial Waste

[ 489 Pa. Page 330]

    permit in order to comply with the Clean Streams Law*fn1 and the Industrial Waste permit already issued to Delmar Coward. This order was issued pursuant to the Clean Streams Law, the Solid Waste Management Act,*fn2 and § 1917-A of

[ 489 Pa. Page 331]

    the Administrative Code.*fn3 It was made necessary by the continual generation of leachate from the landfill and its

[ 489 Pa. Page 332]

    discharge into a tributary with the Clean Streams Law and its attendant rules and regulations. Appellant failed to appeal this order and failed to comply with its directives. Consequently the DER issued a second order, dated March 24, 1977, directing the closure of the landfill. The DER is given authority to issue orders to abate such nuisances by § 1917-A of the Administrative Code. Orders issued by the DER do not become final until the party adversely affected has been given the opportunity to appeal to the Environmental Hearing Board (EHB). Administrative Code § 1921-A.*fn4 While the August 16, 1976 order was never appealed

[ 489 Pa. Page 333]

    and thus became final, the 1977 order was appealed to the EHB which affirmed the order. Without enforcement power of its own, the DER then filed an equity action invoking the original jurisdiction of the Commonwealth Court*fn5 requesting an injunction to abate the nuisance. Appellants filed an independent appeal of the EHB determination to the Commonwealth Court per 42 Pa.C.S.A. § 763,*fn6 subsequent to the filing of the equity action by the DER. The Commonwealth Court chose to dispose of the original equity action first, and granted the relief sought by the DER. (filed September 22, 1978). Although the Commonwealth

[ 489 Pa. Page 334]

Court later affirmed the order of the EHB closing the landfill, 46 Pa. Commw. 416, 406 A.2d 587 (1979), the cause currently before our Court is the appeal of the preliminary injunction issued by the Commonwealth Court.*fn7

The first issue raised by appellant is an attack upon the jurisdiction of the Commonwealth Court to entertain and decide the original equity action when the EHB appeal also was before that court. Appellants contend that the filing of an appeal with the Commonwealth Court from an adjudication by the EHB precludes the Commonwealth Court from exercising its original jurisdiction in an equity

[ 489 Pa. Page 335]

    action between the same parties arising out of the same incident. We disagree.

A court's discretion in handling its own docket has long been recognized. See In Re Road in McCandless Township, 110 Pa. 605, 612, 1 A. 594 (1885). The policy of bringing "each pending matter to a final conclusion as promptly as possible" as is evidenced by Pa.R.J.A. No. 1901(a), further suggests that the Commonwealth Court could properly decide to hear the equity matter first. In fact, since it was docketed first, that policy may require such a disposition. There appear only two possible ways for the Commonwealth Court's jurisdiction to have been postponed: (1) if a petition for a stay of the equity action pending the appeal of the EHB adjudication had been filed by the appellant; or (2) if the filing of the appeal is deemed an automatic stay of the equity action.

A review of the record reveals no application for a stay by appellant. Further, the filing of the appeal to the Commonwealth Court cannot be seen as an automatic supersedeas. Commonwealth v. Bethlehem Steel Corp., 469 Pa. 578, 367 A.2d 222 (1976). There the Court rejected the contention that the Commonwealth Court lacked original jurisdiction to entertain a DER action because an appeal or modification proceedings of the consent order involved was pending before the EHB:

Bethlehem may ultimately prevail in its efforts to have the order modified, and thus could be subject to unnecessary expense if the present order is enforced. This possibility, however, would not justify the conclusion that the courts are without jurisdiction to enforce the order. Such a conclusion would leave the courts powerless to enforce the order -- even where it is highly unlikely that the order will be modified and where continued pollution in violation of the order presents a serious danger to the public. In effect, the mere application for an extension would operate as a stay; an applicant could continue to pollute for the period required to appeal to the EHB and the

[ 489 Pa. Page 336]

    courts. Such a result would be totally at odds with the strong legislative policy expressed in both the Air Pollution Control Act and the Clean Air Act. The modification proceedings must be carried out on the polluter's time, not at the expense of the general public.

Id., 469 Pa. at 591-592, 367 A.2d at 228-229.

The Court also wrote:

Similarly, we believe that DER orders must remain enforceable during the pendency of modification proceedings in order to comply with the spirit of the Clean Air Act Amendments of 1970. We should not adopt a system by which litigation could be used as a tool to delay enforcement of air quality standards.

Id., 469 Pa. at 591 n.22, 367 A.2d at 228 n.22.

While the interpretation goes to a different statute, the analysis is easily applicable to the Clean Streams Law and the Solid Waste Management Act, as the legislative objective is the same: to protect the public from the continuance of harmful pollutants, be it air or water.

Turning to the language of § 1921-A of the Administrative Code, 71 P.S. § 510-21(d) which expressly states that an appeal to the EHB of an DER order will not act as an automatic supersedeas,*fn8 and adopting the rationale of the Court in Bethlehem Steel, it is clear that where a policy exists in favor of enforceability of DER orders when they are not yet final, "an even stronger policy in favor of enforceability applies once an order becomes final." Commonwealth v. Bethlehem Steel Corp., 469 Pa. at 588 n.13, 367 A.2d at 227 n.13. As previously noted, a DER order becomes final once the opportunity to appeal to the EHB has been given to the party adversely affected by the order. We now hold that the pendency of a statutorily permitted appeal does not preclude the Commonwealth Court from enforcing final orders of the DER through the court's exercise of its equity jurisdiction.

[ 489 Pa. Page 337]

Appellants next claim that the doctrine of election of remedies precluded the DER from filing an independent equity action to enforce its prior orders. Appellants' misunderstanding of this doctrine has led them into fundamental error, because the DER has never chosen inconsistent remedial paths. The DER has the express authority to issue orders abating or preventing pollution. Clean Streams Law, § 610, as amended, 35 P.S. § 691.610. "The failure to comply with any such order is hereby declared to be a nuisance." Id. This same act authorizes the DER to file suit in equity on behalf of the Commonwealth and to seek an injunction to abate such nuisances. Id. at § 601, as amended, 35 P.S. § 691.601.*fn9 In the present case, the orders of the DER became final after the EHB affirmance. Accordingly, the DER had the right if not the pressing duty, to immediately seek enforcement of its order abating harmful pollution by appellants. This position is supported by the clear words of the act itself which allows the action taken by the DER:

The collection of any penalty under the provisions of this act shall not be construed as estopping the Commonwealth, or any district attorney or solicitor of a municipality, from proceeding in courts of law or equity to abate pollutions forbidden under this act, or abate nuisances

[ 489 Pa. Page 338]

    under existing law. It is hereby declared to be the purpose of this act to provide additional and cumulative remedies to abate the pollution of the waters of this Commonwealth, and nothing in this act contained shall in any way abridge or alter rights of action or remedies now or hereafter existing in equity, or under the common law or statutory law, criminal or civil, nor shall any provision in this act, or the granting of any permit under this act, or any act done by virtue of this act, be construed as estopping the Commonwealth, persons or municipalities, in the exercise of their rights under the common law or decisional law or in equity, from proceeding in courts of law or equity to suppress nuisances, or to abate any pollution now or hereafter existing, or enforce common law or statutory rights.

Clean Streams Law § 701, 35 P.S. § 691.701 (emphasis added).

Appellants rely primarily upon DER v. Leechburg Mining Co., 9 Pa. Commw. 297, 305 A.2d 764 (1973), as support for their theory that the DER is barred by the doctrine of election of remedies from instituting the present complaint. Leechburg has been limited by a more recent Commonwealth Court decision, however. In DER v. Pa. Power Co., 34 Pa. Commw. 546, 384 A.2d 273 (1978), the DER had filed a contempt action in the court of common pleas calling for incarceration and fines, and had also filed a civil penalty action before the EHB*fn10 in order to force compliance with two court orders requiring Pa. Power to meet pollution emission standards. On appeal of the order imposing civil penalties, the Commonwealth Court found that the action for contempt did not bar the action for civil penalties before the EHB. In distinguishing this case from Leechburg the court wrote:

The case relied upon by PPC, Department of Environmental Resources v. Leechburg Mining Co., 9 Pa. Commw. 297,

[ 489 Pa. Page 339305]

A.2d 764 (1973), is inapposite. In that case, an administrative order was issued which required Leechburg Mining to take certain steps so that compliance with several pollution control acts could be obtained. The parties entered into a subsequent partial consent adjudication on that order from which no appeal was taken. Thereafter, a new action in equity was brought by DER to obtain abatement of the identical alleged violations for which the parties entered into the consent adjudication. In such an instance, it is entirely possible that inconsistent remedies may result. Where as here, however, the remedies actually obtained are supportive but not inconsistent or duplicative, it is inappropriate to invoke the doctrine of election of remedies. Nuside Metal Products, Inc. v. Eazor Express, Inc., 189 Pa. Super. 593, 152 A.2d 275 (1959). DER v. Pa. Power Co., 34 Pa. Commw. at 562, 384 A.2d at 281.

In DER v. Fleetwood Borough Authority, 21 Pa. Commw. 349, 352-353, 346 A.2d 867, 869 (1975), the court affirmed a common pleas court conviction and fine imposed upon the respective borough authority for violations of the Clean Streams Act:

Moreover, we have no difficulty in accepting the conclusion that both the criminal penalties as well as the abatement remedies may be applied against a violator of the Clean Streams Law. Section 701, 35 P.S. § 691.701, clearly declares it the purpose of the act to provide additional and cumulative remedies to abate the pollution of the waters of this Commonwealth.

In the present case, two of the three counts of the DER complaint filed with the Commonwealth Court consisted of an attempt by the DER to enforce its earlier orders. The third count requests additional equitable relief requiring appellants to clean up or collect all of the pollution discharged from their landfill, and is not included within either of the two administrative orders. This count is "supportive"

[ 489 Pa. Page 340]

    and "not inconsistent or duplicative" of the administrative orders. Hence its assertion is not barred by the doctrine of election of remedies. DER v. Pa. Power Co., supra. Furthermore, an application of the doctrine in the present case would be absurd: it would allow relief to be granted as to the first two counts closing the landfill, but the pollutant already discharged would be permitted to destroy the land and waterways. Such an approach is unduly harsh and ignores the essential remedial nature of the relief sought in each count.

Appellant argues that the Commonwealth Court abused its discretion in issuing the mandatory preliminary injunction at issue. The standard of appellate review of the grant of a preliminary injunction was recently set forth by this Court in New Castle Orthopedic Assoc. v. Burns, 481 Pa. 460, 463-64, 392 A.2d 1383, 1385 (1978):

The scope of our review on an appeal from a decree either granting or denying a preliminary injunction is to examine the record only to determine if there were any apparently reasonable grounds for the action of the court below . . . . Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A.2d 626, 627 (1956). (Emphasis supplied). Summit Township v. Fennell, 392 Pa. 313, 140 A.2d 789 (1958). Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 215, 189 A.2d 180, 181 (1963). And the essential prerequisites for the issuance of a preliminary injunction are: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., supra. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to

[ 489 Pa. Page 341]

    abate such activity. And unless the plaintiff's right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded; Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960), and Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958).

The finding of irreparable harm usually is made by the court. Where a statute proscribes certain activity, all that need be done is for the court to make a finding that the illegal activity occurred. In Pa. P. U. C. v. Israel, 356 Pa. 400, 406, 52 A.2d 317, 321 (1947), where a preliminary injunction was issued restraining a transportation company from operating taxicabs for compensation without the required certificates, this Court wrote:

At the hearing the Commonwealth has made a prima facie showing that the defendants are operating taxicabs in violation of law. The argument that a violation of law can be a benefit to the public is without merit. When the Legislature declares certain conduct to be unlawful it is tantamount in law to calling it injurious to the public. For one to continue such unlawful conduct constitutes irreparable injury.

The appellee, DER, issued two orders to which an appeal was taken to the EHB. The EHB affirmance of those orders made the orders final and yet as testimony presented at the preliminary injunction hearing showed, the appellant failed to comply with the orders. "The failure to comply with any such order is hereby declared to be a nuisance." 35 P.S. § 691.610 (Supp.1979-1980). Thus irreparable harm was shown in accordance with the rules enunciated in Israel.

Appellant argues that the public will suffer a greater harm from the closure of the landfill than if it was to remain in operation. It is difficult to see how the public will suffer by the closure of landfill which continuously pollutes the land and waters which it adjoins. Certainly other methods of waste disposal, less harmful to the public exist. No merit can be found in appellant's assertion.

[ 489 Pa. Page 342]

Finally, appellant contends that the preliminary injunction does not maintain the "status quo" as required, but rather orders closure and other affirmative actions and as such is improper.

In Pa. P. U. C. v. Israel, the same argument was made in an attempt to refute the order which stopped operation of the taxicabs.

The defendants further argue that the purpose of granting a preliminary injunction is to maintain the status quo and that since the defendants were operating before the bill was filed they should be allowed to continue to do so at least until final determination of the matter before us.

It is true that in general the object of a preliminary injunction is to maintain things as they are until the rights of the parties can be considered and determined after a full hearing, but it is now well settled that at times it is necessary to make even a preliminary injunction mandatory: Leisenring v. Pennsylvania Lighting Co., 59 Pa. Super. 202, 208 (1915).

In Commonwealth v. Cohen, 150 Pa. Super. 487, 489 [28 A.2d 723] (1942) the Court said: "The rule is 'that the status quo which will be preserved by preliminary injunction is the last actual, peaceable (and, we may add, lawful) noncontested status which preceded the pending controversy.'"

Id., 356 Pa. at 407, 52 A.2d at 321. See also Roberts v. School District of Scranton, 462 Pa. 464, 469, 341 A.2d 475 (1975).

The issuance of a preliminary injunction which is mandatory in nature, although more sparingly granted, may be ordered where the rights of the plaintiff are clear or "the defendant must change the status of the parties while the result is pending." McMullan v. Wohlgemuth, 444 Pa. 563, 573, 281 A.2d 836, 841 (1971). See also Township of South Fayette v. Commonwealth, 477 Pa. 574, 580, 385 A.2d 344, 347 (1978).

[ 489 Pa. Page 343]

The operation of the landfill produced and allowed pollutants to be discharged onto the land and into the waters of the Commonwealth in clear violation of the law. The continued operation of the landfill will allow such pollution to continue and as such the DER "must change the status of the parties while the result is pending" in order to safeguard the public interest. Accordingly, the mandatory preliminary injunction was warranted by the facts and circumstances of the present case.

Appellant's final contention is that the DER has engaged in multiple prosecutions of appellants to harass and punish appellants. In appellant's view, the DER comes to equity with unclean hands and should be denied the equitable relief it seeks. See Shapiro v. Shapiro, 415 Pa. 503, 204 A.2d 266 (1964). Appellant has waived this issue, however, by failing to raise it in their answer to the DER's equity complaint. In Luitweiller v. Northchester Corp., 456 Pa. 530, 533, 319 A.2d 899, 901-902 (1974) the proper way to raise the claim of unclean hands was discussed by this Court:

We note preliminarily that the objection that plaintiffs are guilty of unclean hands is not a proper matter for preliminary objections. . . . This is an affirmative defense, Shapiro v. Shapiro, 415 Pa. 503, 505, 204 A.2d 266 (1964), and should be raised as new matter under Pa.R.C.P. No. 1030.

Pa.R.C.P. 1032 states that defenses not raised in the proper manner are waived. Accordingly, we will not reach this final issue.

The decree of the Commonwealth Court issuing a preliminary injunction is affirmed. Each party to pay own costs.

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