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MILLSTONE ENTERPRISES v. COMMONWEALTH PENNSYLVANIA (10/22/86)

decided: October 22, 1986.

MILLSTONE ENTERPRISES, INC., AND WILLIAM R. BIRDSEYE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, AND TOWNSHIP OF SOUTH HUNTINGDON, WESTMORELAND COUNTY, PA., RESPONDENTS. MILLSTONE ENTERPRISES, INC., AND WILLIAM R. BIRDSEYE, APPELLANTS V. TOWNSHIP OF SOUTH HUNTINGDON, WESTMORELAND COUNTY, PA., APPELLEE



Original Jurisdiction and Appeal from the Orders of the Court of Common Pleas of Westmoreland County, in cases of Township of South Huntingdon, Westmoreland County, Pennsylvania v. Millstone Enterprises, Inc. and William R. Birdseye, No. 5586 of 1983, dated February 4, 1985 and November 12, 1985.

COUNSEL

Thomas A. Crawford, Jr., for petitioners/appellants.

John W. Pollins, III, with him, Frank P. Anto, for respondent/appellee, Township of South Huntingdon.

Dennis W. Strain, Assistant Counsel, with him, Gary A. Peters, Assistant Counsel, for respondent, Department of Environmental Resources.

Judges MacPhail and Doyle, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 101 Pa. Commw. Page 410]

Millstone Enterprises, Inc. and William R. Birdseye (Millstone), in the case docketed at No. 3080 C.D. 1985, appeal a decision of the Westmoreland County Court of Common Pleas entered on November 12, 1985 which dismissed their exceptions and made final the February 4, 1985 order of that Court which granted an injunction requested by the Township of South Huntingdon. We will affirm that order. In the case docketed at No. 73 C.D. 1986,*fn1 Millstone has filed a "Petition for a Writ of Mandamus" against the Township and the Department of Environmental Resources (DER).*fn2 Both DER and the Township have filed preliminary objections to

[ 101 Pa. Commw. Page 411]

Millstone's petition. We find that at least some of those preliminary objections have merit and require that the petition be dismissed.

We will first address Millstone's appeal from the denial of its exceptions to the Common Pleas Court's order granting the Township's petition for an injunction.

Our scope of review in equity matters is limited to determining whether the Chancellor's findings are supported by substantial evidence, whether an error of law was committed, or whether the Chancellor abused his discretion. Babin v. City of Lancaster, 89 Pa. Commonwealth Ct. 527, 493 A.2d 141 (1985).

The pertinent findings of fact made by the Chancellor in his February 4, 1985 opinion which are supported by substantial evidence are as follows:

2. [Millstone is the owner] . . . of real estate in South Huntingdon Township, upon which a building has been constructed, which has been used, and is presently being used, as an 'adult book store.'

3. [Millstone] . . . installed a sanitary sewage holding tank on the subject property accompanying the erection of the building.

4. [Millstone] . . . did not apply for or receive a sewage permit for the sewage holding tank.

5. As of October 2, 1984, [Millstone's] . . . sanitary sewage holding tank was still connected to the flush toilet facilities in the building.

6. On or about October 2, 1984 [Millstone] . . . caused to be installed a portable toilet unit on the premises.

7. [Millstone] . . . does not have and has not applied for a sewage permit for the portable toilet.

[ 101 Pa. Commw. Page 4128]

. [The] . . . Township has not ennacted [sic] an ordinance allowing for the use of holding tanks.

9. After the [Township's] Sewage Enforcement Officer, in response to anonymous complaints, discovered that [Millstone] . . . had installed the holding tank without a permit, [Millstone] . . . requested of him an application for a permit. The Sewage Enforcement Officer advised him that the property was located in a flood plane [sic] area and that accordingly a permit could not be issued.

12. There is no municipal sewage disposal system in this area of South Huntingdon Township.

13. By a properly enacted resolution, the Commissioners of South Huntingdon Township designated Westmoreland County to develop a plan for sewage disposal in accordance with the ...


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