Original jurisdiction in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Morcoal Company and Robert Stefanon.
Robert P. Ging, Jr., Assistant Attorney General, for plaintiff.
James N. Falcon, for defendant, Morcoal Company.
Robert Stefanon, defendant, for himself.
Judges Mencer, Rogers and Blatt, sitting as a panel of three.
On July 23, 1979, the Department of Environmental Resources (Department) filed a complaint against Morcoal Company (Morcoal) and Robert Stefanon (Stefanon), pursuant to The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq., and the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945, as amended, P.L. 1198, 52 P.S. § 1396.1 et seq. On August 17, 1979, or 25 days after service of the complaint, a preliminary objection in the nature of a demurrer was filed by Stefanon and an answer with new matter was filed by Morcoal. The Department now moves to strike Stefanon's preliminary objection because it was not filed within 20 days of service of the complaint, as required by Pa. R.C.P. No. 1026. In addition, the Department requests the Court to strike Morcoal's new matter on the grounds that the new matter is actually a counterclaim improperly characterized as new matter or, in
the alternative, the new matter is not within this Court's jurisdiction because a statutory remedy was available to Morcoal.
And Now, this 26th day of September, 1980, having considered the Department's objections and the briefs in support of and contra to those objections, we order as follows:
1. The plaintiff's preliminary objection in the nature of a motion to strike defendant Robert Stefanon's preliminary objection in the nature of a demurrer is hereby sustained, defendant Stefanon's demurrer is dismissed as untimely filed, pursuant to Pa. R.C.P. No. 1026, and defendant Stefanon is ordered to answer the Department's complaint within 20 days after notice of this order.
2. The Department's preliminary objection in the nature of a motion to strike defendant Morcoal Company's new matter or, in the alternative, asserting a question of jurisdiction, is hereby ...