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COMMONWEALTH PENNSYLVANIA v. LEE BOWMAN ASPHALT (09/25/80)

decided: September 25, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT
v.
LEE BOWMAN ASPHALT, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Clinton County in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Lee Bowman Asphalt, Inc., No. 43 October Term, 1978.

COUNSEL

Albert E. Vogel, Jr., Assistant Attorney General, with him John P. Krill, Jr., Assistant Attorney General, for appellant.

No appearance for appellee.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 54 Pa. Commw. Page 72]

The Pennsylvania Department of Environmental Resources (DER) has appealed to this Court from an order of the Court of Common Pleas of Clinton County, which quashed DER's appeal to the lower court from a summary proceeding before a district justice.

In September, 1978, DER filed summary charges against Lee Bowman Asphalt, Inc. (defendant), the instant appellee, for violations under the Air Pollution Control Act.*fn1 In November, 1978, the matter was heard before a district justice, who sustained the defendant's demurrer to DER's evidence. DER appealed that ruling to the Court of Common Pleas of Clinton County.

[ 54 Pa. Commw. Page 73]

On the defendant's motion the lower court quashed DER's appeal, concluding that the Commonwealth had no right of appeal from a summary proceeding. For that conclusion the lower court adopted as authority its own decision in the case of Commonwealth v. Culvey, 3 Pa. D. & C. 3rd 45 (1977). That case took the position that the right of appeal granted by Article V, Section 9, of the Pennsylvania Constitution*fn2 was not self-executing, and that no legislation had implemented that grant to give the Commonwealth a right of appeal from the summary proceeding.

The conclusion that Article V, Section 9, is not self-executing finds support in decisions of our appellate courts. That conclusion was reached by the Supreme Court in Smethport Area School District v. Bowers, 440 Pa. 310, 314, 269 A.2d 712, 715 (1970); and that conclusion was reiterated by this Court in Manheim Township School District v. State Board of Education, 1 Pa. Commonwealth Ct. 627, 634, 276 A.2d 561, 564 (1971). Both of these decisions held that the rights of appeal generally declared in Article V, Section 9, require statutory implementation.

However, even assuming that statutory implementation is required to give the Commonwealth a right of appeal from a summary proceeding, we conclude that such implementation had taken place and was in effect when the Commonwealth appealed to the court below. Section 5105(a) of the Judicial Code, 42 Pa. C.S. ยง 5105(a), provides in pertinent part as follows:

[ 54 Pa. Commw. Page 74]

There is a right of appeal under this subsection from the final order (including an order defined as a final ...


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