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ELVIN C. SMITH AND FERN E. SMITH v. JAMES FULKROAD (10/08/82)

filed: October 8, 1982.

ELVIN C. SMITH AND FERN E. SMITH, APPELLANTS,
v.
JAMES FULKROAD, JACK FULKROAD AND LARRY FULKROAD, T/D/B/A THE FULKROAD SANITARY LANDFILL



No. 77 Harrisburg, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action Law, Dauphin County, No. 3928 Equity, 1979.

COUNSEL

Bruce D. Foreman, Harrisburg, for appellants.

Arthur L. Goldberg, Harrisburg, for appellees.

Brosky, Wieand and Montemuro, JJ. Wieand, J., concurs in the result.

Author: Montemuro

[ 305 Pa. Super. Page 460]

This case concerns an equity matter in which the appellants, owners of farm property, are contesting but a single principal issue:*fn1 may the appellees, operators of a sanitary landfill, continue to use what was formerly a country lane located near appellants' farmhouse as a heavily-used access road for a daily parade of trucks hauling sixty tons of refuse onto a neighboring property?

It is apparent upon review of the record that the appellants have abandoned the argument that the use of the property as a landfill is improper. The evidence that the appellees correctly advertised, and that the necessary preparations to protect the health and safety of the neighborhood were complied with is overwhelming. The closing of the

[ 305 Pa. Super. Page 461]

    landfill at the present time would indeed be expensive, inequitable, and monumentally inconvenient to the local municipalities who depend on it, as well as to appellees.

It is notable that this spectre of the harm that would be done by a reversal of that part of the decision of the lower court which concerns the use of the entire landfill site is kept alive only by the appellees. Their Brief spends six pages of its counterstatement of the case in discussing the value of the landfill and the care of preparation taken, but only a single page addresses the problem of the roadway. The expanded use of the road, however, presents a serious legal problem quite separate from the use of the landfill site as a whole. We affirm the lower court in its decision that the use of the former farm as a sanitary landfill is proper and may not be enjoined. However, as to the access road onto that property, we reverse the decision.

This action was taken in Equity and is therefore subject to the provisions of Pa.R.C.P. 1517, the pertinent terms of which are set forth below as follows:

Rule 1517. The Adjudication. Notice

(a) The court shall make an adjudication and may do so before the testimony has been transcribed. The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions ...


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