Appeal from the Order of the Court of Common Pleas of Cambria County in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Joseph Williams and Liefsta Development Corporation, No. 1977-4813.
Louis A. Naugle, Assistant Attorney General, for appellant.
Fremont J. McKenrick, with him, Bruce McKenrick, and S. R. DiFrancesco, Sr., for appellees.
Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
The Commonwealth of Pennsylvania, Department of Environmental Resources (DER) has filed this appeal from an order of the Court of Common Pleas of Cambria County that denied DER's motion for judgment on the pleadings in an equity action brought by DER to enforce administrative orders.
On August 15, 1977, DER, following an investigation by its field personnel, issued administrative orders*fn1 to Liefsta Development Corporation and Joseph Williams (Appellees). Appellees own an embankment known as Cresson Lake Dam, which spans Clearfield Creek in Allegheny and Cambria Counties. The administrative orders were issued pursuant to Section 5 of the Water Obstructions Act*fn2 and directed Appellees to submit a plan for breaching the dam which would be approved by DER prior to commencement of any work. The administrative orders were issued because DER found the Cresson Lake Dam to be in an unsafe condition and causing a present threat to the health and safety of property owners downstream.
DER's orders included clear notice that Appellees could file an appeal therefrom to the Environmental Hearing Board within thirty days of service of the orders. The administrative orders were served by
certified mail, return receipt requested, and the record clearly shows that Appellees received them.
Appellees neither complied with nor filed any appeal from the administrative orders. On December 2, 1977, therefore, DER filed a complaint in equity seeking judicial enforcement of the administrative orders. Appellees filed an Answer and New Matter to the Complaint in Equity challenging the content and validity of the orders. DER filed its Reply to New Matter on January 9, 1978 and filed a Motion for Judgment on the Pleadings on July 19, 1978. By order dated January 19, 1979, the lower court denied DER's motion and directed that testimony be presented on the merits.
DER claims a right to appeal this clearly interlocutory order pursuant to Section 1 of the Act of April 18, 1874, P.L. 64, 12 P.S. § 1097,*fn3 repealed by Section 2(a) of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202.*fn4 In Reading Company v. Development Company, 407 Pa. 469, 181 A.2d 288 (1962), however, our Supreme Court stated unequivocally that Section 1 of the Act of April 18, 1874 has no application to actions in equity. The instant appeal must, therefore, be dismissed as an appeal from an interlocutory order.
Nevertheless, we deem it necessary to discuss some of the issues raised in this appeal for the guidance of the trial ...