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COUNCIL PLYMOUTH TOWNSHIP v. MONTGOMERY COUNTY (10/01/87)

decided: October 1, 1987.

COUNCIL OF PLYMOUTH TOWNSHIP, APPELLANT
v.
MONTGOMERY COUNTY, PAUL B. BARTLE, ALLAN C. MYERS, RITA C. BANNING, COMMISSIONERS, APPELLEES. O'HARA SANITATION COMPANY INC. AND PATRICK O'HARA, APPELLANTS V. COUNTY OF MONTGOMERY, ALLAN MYERS, PAUL B. BARTLE AND RITA C. BANNING, APPELLEES



Appeals from the orders of the Court of Common Pleas of Montgomery County, in case of Council of Plymouth Township v. Montgomery County, Paul Baker Bartle, Allan C. Myers and Rita C. Banning, Commissioners, No. 84-12380, and in case of O'Hara Sanitation Company, Inc. v. County of Montgomery, et al., No. 84-16803.

COUNSEL

Arthur Lefkoe, with him, Howard Wishnoff, Wisler, Pearlstine, Talone, Craig & Garrity, for appellant, Council of Plymouth Township.

Robert J. Kerns, Landis, Williams & Kerns, for appellants, O'Hara Sanitation Company, Inc.

Bruce J. Eckel, Assistant County Solicitor, for appellee, County of Montgomery.

President Judge Crumlish, Jr., Judge Craig, MacPhail, Doyle and Colins. Opinion by Judge MacPhail.

Author: Macphail

[ 109 Pa. Commw. Page 618]

Appellants O'Hara Sanitation Company, Inc. (O'Hara) and Plymouth Township (Township) appeal orders of the Montgomery County Court of Common Pleas denying their motions for post-trial relief and rendering previous orders final which denied O'Hara's request for a permanent injunction and dismissed the Township's complaint in mandamus.*fn1 For the reasons set forth below, we affirm.

The present controversy arises from a decision of the Montgomery County Commissioners to close the Montgomery County Landfill as of August 20, 1984 to all entities which did not have written agreements with the County for solid waste disposal. Both Appellants have utilized the landfill without benefit of written contracts and are therefore affected by the County's decision.

As found by the trial court, the County in 1971 leased land in quarries located in Upper Merion and West Conshohocken Townships for use as landfills. The sites were prepared to comply with Department of Environmental Resources regulations so that a permit could be obtained for a disposal facility. See Section 201(a) of the Solid Waste Management Act (Act), Act of July 7, 1980, P.L. 380, as amended, 35 P.S. § 6018.201(a); 25 Pa. Code §§ 75.24-75.25. The trial court found that the cost of these preparations necessitated the charging of higher fees than other available landfills.

Regarding the subsequent operation of the landfill, the trial court made the following findings of fact:

14. The landfill was opened for the deposit of solid waste in late 1971.

[ 109 Pa. Commw. Page 61915]

. Initially, and throughout the 1970s it was difficult for the County to get municipalities and private haulers to dump at the County's facilities because the per-ton price was higher than that charged at other landfills in the area.

16. Curtis Campman, the Director of Public Facilities in the 1970s, made contact with municipalities and some private hauler associations to encourage them to enter into contracts with the County to commit all their solid waste to the County landfill, with an assurance of protection if they did so.

17. It was Mr. Campman's position that the County was not getting the trash stream because there were unregulated landfills (particularly Moyer's landfill) where the tipping fees were considerably less than the County's.

18. Until the capacity of the landfill became a documented problem, the County expressed its willingness to enter into long term contracts with those municipalities willing to commit their entire waste stream to the landfill.

19. During this period, none of the plaintiffs approached the County to ask for a long-term contract.

In 1984, the County received two reports from its consulting engineers, Gannett Fleming Environmental Engineers, Inc., regarding the projected remaining capacity of the landfill. The first report indicated that if the current rate of dumping continued, the landfill would not be able to accept any trash beyond March 31, 1984. According to a later report, the landfill could ...


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