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TOWNSHIP ELIZABETH v. POWER MAINTENANCE CORPORATION AND ALLEGHENY COUNTY AND MUNICIPAL INDUSTRIAL DISPOSAL COMPANY. POWER MAINTENANCE CORPORATION (07/28/80)

decided: July 28, 1980.

TOWNSHIP OF ELIZABETH
v.
POWER MAINTENANCE CORPORATION AND ALLEGHENY COUNTY AND MUNICIPAL INDUSTRIAL DISPOSAL COMPANY. POWER MAINTENANCE CORPORATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Township of Elizabeth v. Power Maintenance Corporation, Allegheny County and Municipal Industrial Disposal Company, No. GD 79-20171.

COUNSEL

Jack W. Plowman, Plowman & Spiegel, for appellant.

Timothy P. O'Reilly, Jacobs, Frobouck & Stabile, with him James Victor Voss, Meyer, Unkovic & Scott, and Francis J. Carey, Balzarini, Walsh & Maurizi, for appellees.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 53 Pa. Commw. Page 271]

Elizabeth Township (Township) filed a complaint in equity before the Court of Common Pleas of Allegheny County seeking to enjoin the hauling of flyash, a waste product from the Elrama Power Station of Duquesne Light Company, through a residential area to a landfill in the township. The hauling is done by Power Maintenance corporation (Power Maintenance), one of three defendants named in the complaint. A second defendant is Municipal Industrial

[ 53 Pa. Commw. Page 272]

Disposal Company, which operates the landfill to which the flyash is hauled. The third defendant, Allegheny County, owns and is responsible for the upkeep of Broadlawn Drive, the road over which the hauling is done.

The complaint alleges that the hauling of flyash through a residential neighborhood constitutes a public nuisance because great quantities of dust are created thereby and make it difficult for residents of the area to breathe. This is asserted as a danger to the health of these residents. Further, it is alleged that the extreme weight of the flyash hauled is causing damage to the road and causes mud and other debris to be deposited on the road. The complaint also alleges a "de facto rezoning" of the area in that the use by Power Maintenance has transformed a residential area into a commercial area.

All defendants filed preliminary objections to the complaint. The preliminary objection of Allegheny County in the nature of a demurrer was sustained by the lower court. Defendant Municipal Industrial Disposal Company's motion for a more specific pleading was granted. Both Municipal Industrial Disposal Company and Power Maintenance filed preliminary objections challenging the jurisdiction of the Court of Common Pleas and asserting the failure of the Township to exhaust a statutory remedy. These objections were overruled by the lower court. Power Maintenance has appealed to this Court from the order overruling its preliminary objection challenging jurisdiction.*fn1 We reverse.

[ 53 Pa. Commw. Page 273]

The learned trial judge addressed the issue of exhaustion of remedies,*fn2 but did not specifically deal with the jurisdiction issue in light of the Act of March 21, 1806, P.L. 558, formerly 46 P.S. § 156, repealed by the Act of December 6, 1972, P.L. 1339. A similar provision is now found in Section 1504 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1504 (Act of 1806) and provides that

In all cases where a remedy is provided or a duty is enjoined or anything is directed to be done by any statute, the directions of the statute shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect.

This Legislative pronouncement embodies the Pennsylvania version of the federal concept of primary jurisdiction. Primary jurisdiction is, in essence, a doctrine of judicial restraint and provides that, where a ...


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