Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Paul W. Aitkenhead, et al. v. Borough of West View, et al., No. GD 4585-78.
Fred E. Baxter, Jr., with him Jane D. Ressler, Gondelman, Baxter, Mansmann and McVerry, for appellants.
Samuel G. Weiss, Jr., Weiss, Weiss & Weiss, for appellees.
President Judge Crumlish, Jr. and Judges Mencer, Rogers, Blatt and Williams, Jr. Opinion by Judge Williams, Jr. Judge Palladino did not participate in the decision in this case.
[ 65 Pa. Commw. Page 215]
This case comes before the Court for a decision concerning preliminary objections to the jurisdiction of the common pleas court over an equity action challenging the addition of fluoride to a public water system, in accordance with a permit properly issued by the designated state agency.
In January, 1978, the West View Water Authority (authority) announced its intention to begin adding fluoride to the public water supply, under the auspices of a permit granted by the then-Pennsylvania Department of Health, whose functions are now performed by the Department of Environmental Resources (DER).
In response to that announcement, this suit was filed on February 28, 1978, seeking preliminary and permanent injunctive relief to block the fluoridation. The authority filed preliminary objections asserting that equity could not take jurisdiction because there was an adequate and alternative remedy before DER and the Environmental Hearing Board. Fluoridation began, as scheduled, on March 1, 1978.
In November, 1978, the common pleas court granted the preliminary injunction. The authority promptly filed a request for a supersedeas, in which it argued that modification of an existing water supply could not legally be effected without permission of DER, under the provisions of the Water Supply Law.*fn1 The court denied the supersedeas request, and, in
[ 65 Pa. Commw. Page 216]
response to the authority's appeal to the Commonwealth Court, issued an additional decree, in which it "restored from automatic supersedeas"*fn2 its preliminary decree. It further ordered that the prohibition against fluoridation should remain in effect until (1) the matter was submitted to, and dealt with, by DER, or (2) a final hearing on the matter was held in the common pleas court.
The authority applied to DER for permission to discontinue the fluoridation, but its application was denied by letter of January 8, 1979. Neither the authority nor the plaintiffs in the equity action pending before the common pleas court appealed that decision to the Environmental Hearing Board.
In the meantime, this Court, by order of the late President Judge Bowman, had reinstated the automatic supersedeas. The case first came before this Court, sitting en banc, on a Motion to Dismiss the preliminary injunction appeal for mootness. The petitioners, plaintiffs below, and appellees in this Court, contended that the authority's appeal was moot because the aforementioned decision of the DER dissolved the preliminary injunction issued by the common pleas court. The appellants argued that the appeal was not moot, because the issuance of the preliminary injunction was premised on the usurpation of DER's jurisdiction by the common pleas court. We held, however, that the appeal was indeed moot, disagreeing with "appellants' conclusion that the court has ruled on its jurisdiction." Aitkenhead v. Borough of West View, 40 Pa. Commonwealth Ct. 547, 550, ...