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COMMONWEALTH PENNSYLVANIA v. PEGGS RUN COAL COMPANY AND PEGGS RUN COAL COMPANY (12/15/80)

decided: December 15, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, PLAINTIFF
v.
PEGGS RUN COAL COMPANY AND PEGGS RUN COAL COMPANY, DEBTOR IN POSSESSION, MICHAEL CIMBA, WARREN HINKS AND JACK S. COURTNEY, DEFENDANTS



Original jurisdiction in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Peggs Run Coal Company and Peggs Run Coal Company, Debtor in Possession, Michael Cimba, Warren Hinks and Jack S. Courtney.

COUNSEL

Howard J. Wein, with him Robert P. Ging, Jr., Assistant Attorney General, for plaintiff.

Kenneth P. Simon, Reed, Smith, Shaw & McClay, with him Franklyn E. Conflenti, and James S. Birsic, Cauley, Birsic & Conflenti, for defendant.

Judges Wilkinson, Jr., Craig and Palladino, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 55 Pa. Commw. Page 313]

Peggs Run Coal Company (Peggs Run) is the owner of a coal mine and cleaning plant on its premises in Beaver County and a coal refuse disposal area nearby. In October 1979 Peggs Run filed a petition for relief under Chapter XI of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. An Order for Relief was entered, and that proceeding has been pending since the filing date. Peggs Run is a debtor-in-possession under the Bankruptcy Code. In May 1980 the Department of Environmental Resources (Department) filed a complaint in equity against Peggs Run and the three principal shareholders as individuals for alleged maintenance of a public nuisance and numerous violations

[ 55 Pa. Commw. Page 314]

    of the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq., the Air Pollution Control Act, Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. § 4001 et seq., and the Rules and Regulations of the Environmental Quality Board, 25 Pa. Code § 1.1 et seq. The complaint requests injunctive relief and the posting of bonds to assure compliance with the orders. Presently before the Court are the preliminary objections of the corporate defendant and the individual defendants.

Peggs Run has filed a preliminary objection contesting the jurisdiction of this Court and a preliminary objection in the nature of a demurrer. In that first preliminary objection Peggs Run contends that the Department has in the past and is presently seeking imposition of criminal sanctions against Peggs Run and has thereby effected an election of remedies precluding the present action.

[W]e 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.

Department of Environmental Resources v. Fleetwood Borough Authority, 21 Pa. Commonwealth Ct. 349, 352-3, 346 A.2d 867, 869 (1975).

In the second preliminary objection Peggs Run contends that the Department's complaint is a civil action restrained by the Bankruptcy Code. The main thrust of Peggs Run's argument is that the Bankruptcy Code provides for an automatic stay preventing all creditors from pursuing normal legal processes against the debtor's estate. Section 362 of the Bankruptcy Code provides in pertinent part:

[ 55 Pa. Commw. Page 315]

§ 362. Automatic stay

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a ...


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