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COMMONWEALTH PENNSYLVANIA v. BOARD CLAIMS (11/15/84)

decided: November 15, 1984.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, PETITIONER
v.
BOARD OF CLAIMS, RESPONDENT



Appeal from the Order of the Board of Claims in case of Harry D. Miller, III and A Potty On The Spot, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 865.

COUNSEL

Susan J. Forney, Deputy Attorney General, with her, Allen C. Warshaw, Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for petitioner.

Nicholas Panarella, Jr., for respondent.

Paul A. Logan, Waters, Gallagher & Trachtman, for intervening respondent.

Judges Doyle, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 86 Pa. Commw. Page 101]

The Commonwealth of Pennsylvania, Department of Environmental Resources (DER) has filed a petition for review in the nature of a writ of prohibition in which it seeks to prevent the Board of Claims (Board) from exercising jurisdiction over a complaint filed by Harry D. Miller, III and A Potty on the Spot, Inc. (Intervenors).

Intervenors' complaint before the Board sought damages in the amount of $464,380.25 resulting from DER's alleged erroneous revocation and subsequent reissuance of a permit which had been issued and exercised for the agricultural use of sewage sludge on Miller's Christmas tree farm. This permit allowed Miller to operate his land as a processing or disposal facility by collecting sewage sludge from his portable toilet and cesspool cleaning business and using it as fertilizer on his farm.

Intervenor Miller's permit was subsequently revoked by DER because the alleged condition of his property created a danger of pollution to the waters of the Commonwealth and the site constituted a "public nuisance", affecting the public health, safety and welfare.*fn1 Miller filed an appeal from DER's revocation of his permit with the Environmental Hearing Board (EHB). Prior to the disposition of Miller's appeal by the EHB, DER determined that Miller's permit should not have been revoked in the first instance and reinstated it.

[ 86 Pa. Commw. Page 102]

In the complaint before the Board, the Intervenors allege two alternative theories of recovery: first, that there was a breach of the contractual relationship which was created by the issuance of the permit; and second, that the revocation of the permit without just cause constitutes a claim authorized under The Fiscal Code (Code), Act of April 9, 1929, P.L. 343, as amended, 72 P.S. ยงยง 1-1827.10. By way of preliminary objections to Intervenors' complaint, DER challenged the Board's jurisdiction. In an opinion and order dated December 9, 1983, the Board concluded that while it lacked contract jurisdiction over Intervenors' complaint, it did have jurisdiction pursuant to the Code.*fn2

On July 5, 1984, DER filed the instant petition seeking a writ of prohibition in which it asserts that the Board does not have jurisdiction to hear Intervenors' complaint under the Code.

Our Supreme Court in Carpentertown Coal and Coke Co. v. Laird, 360 Pa. 94, 102, 61 A.2d 426, 430 (1948) reviewed the circumstances under ...


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