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COMMONWEALTH PENNSYLVANIA v. DELMAR COWARD AND COWARD CONTRACTING COMPANY (04/30/80)

decided: April 30, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DELMAR COWARD AND COWARD CONTRACTING COMPANY, INC., APPELLANT



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.

COUNSEL

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]

OPINION

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 ...


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