Original jurisdiction in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. William Fiore, d/b/a Municipal and Industrial Disposal Company, Inc.
Howard J. Wein, Assistant Counsel, with him, Barbara H. Brandon and James D. Morris, Assistant Counsels, for petitioner.
Robert P. Ging, Jr., with him, Harold Condelman, for respondent.
Francis A. Barry, Senior Judge. Opinion by Judge Barry.
[ 88 Pa. Commw. Page 419]
This matter comes before the Court upon application by the Department of Environmental Resources (DER) for a preliminary injunction to enjoin William Fiore, d/b/a Municipal and Industrial Disposal Company (Fiore), from refusing access to his property to DER employees who are seeking to conduct inspections and collect effluent and ground water samples. This Court's jurisdiction is invoked pursuant to Section
[ 88 Pa. Commw. Page 420761]
(a)(2) of the Judicial Code, as amended, 42 P.S. § 761(a)(2); Section 601 of the Clean Streams Law of Pennsylvania, Act of June 27, 1937, No. 394, P.L. 1987, as amended, 35 P.S. § 691.601; and Section 604 of the Pennsylvania Solid Waste Management Act, Act of July 7, 1980, P.L. 380, No. 97, 35 P.S. § 6018.604.
These same parties previously appeared before this Court on DER's request for enforcement of a consent order and a request for a contempt citation against Fiore. It was at that time established that Fiore owns and operates various solid waste disposal facilities in Elizabeth Township, Allegheny County, Pennsylvania.
At this first proceeding DER claimed Fiore entered into a consent order and agreement where he basically agreed to undertake a number of clean up operations in order to make his facility comply with the applicable requirements of the Solid Waste Management Act. DER alleged that Fiore had failed to comply with this agreement. This Court found that Fiore had voluntarily entered into a valid agreement and, on October 28, 1983, it issued a court order which found Fiore in civil contempt for violating various sections of the agreement and ordered, inter alia, immediate compliance with all of the provisions set forth in the agreement. This order is presently on appeal to the Supreme Court. No supersedeas has been granted.
The application for preliminary injunction which is now before this Court was filed by DER at the same docket number as the initial action just discussed. The facts which give rise to this action are not in dispute. On October 31, 1984, DER employees attempted to gain access to Fiore's property in order to conduct an inspection. Fiore admits that he refused them access to his property because they did not have a
[ 88 Pa. Commw. Page 421]
search warrant. DER is seeking an injunction which would essentially give its employees access to Fiore's property "on a continuing basis".
Fiore has filed a Motion to Dismiss where he argues that this Court has been divested of jurisdiction by the appeal to the Supreme Court. Pa. R.A.P. 1701(a). DER, on the other hand, submits that this Court has ...