decided: October 30, 1987.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT
MONARCH PALLET CORPORATION, APPELLEE
Appeal from the order of the Court of Common Pleas of Lackawanna County, in case of Commonwealth of Pennsylvania v. Monarch Pallet Corporation, No. 85 CR 988.
John R. Embick, Assistant Counsel, for appellant.
W. Boyd Hughes, Hughes & Nicholls, for appellee.
Judges MacPhail and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.
[ 110 Pa. Commw. Page 579]
This is an appeal by the Department of Environmental Resources (DER) from an order of the Court of Common Pleas of Lackawanna County granting the demurrer of Monarch Pallet Corporation, appellee. Appellee had appealed to the trial court from a decision of a district justice which found appellee guilty of four counts of violating the Air Pollution Control Act (Act), Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. §§ 4001-4015.
Appellee is the owner of a pallet manufacturing company. The testimony before the trial court shows that appellee sought to install an air contamination source which collected sawdust inside appellee's plant by means of a duct system and emitted the material through a flue. The construction and operation of such a system is governed by 35 P.S. 4006.1(a); 25 Pa. Code 127.11*fn1 and 35 P.S. 4006.1(b); 25 Pa. Code 127.21.*fn2
[ 110 Pa. Commw. Page 580]
Appellee was granted plan approval which authorized the construction and testing of the facility but began operation of the plant before a permit was issued. DER instituted four summary proceedings against appellee.
[ 110 Pa. Commw. Page 581]
Three counts charged appellee with unlawfully operating an air contamination source without a permit. The fourth count charged appellee with discharging visible fugitive emissions into the atmosphere in a manner which extended well beyond appellee's property line.*fn3 A district justice found appellee guilty on all four counts and imposed a fine of $100.00. Appellee appealed to the trial court which conducted a trial de novo. After taking testimony, the trial court granted appellee's demurrer on the basis that DER had previously unconditionally approved the plans for the flue system and that DER failed to complete the mandated monitoring and
[ 110 Pa. Commw. Page 582]
testing under 25 Pa. Code § 127.12.*fn4 The trial court concluded that DER's testimony was legally insufficient to show that appellee was guilty beyond a reasonable doubt. On appeal DER argues that the evidence adduced at trial easily establishes that appellee is guilty of operating without a permit and in discharging visible fugitive emissions into the atmosphere beyond its property line. It contends that the trial court confused plan approval with permit approval and further asserts that the trial court misinterpreted Section 127.12 as requiring DER to conduct the testing which the trial court found it failed to complete.
[ 110 Pa. Commw. Page 583]
Prior to its argument on the merits, DER points out that the grant of a demurrer by the trial court does not bar an appeal on the ground of double jeopardy. It cites Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985). This case is no longer the law in Pennsylvania. It has been reversed by the United States Supreme Court, in Smalis v. Pennsylvania, 476 U.S. 116 (1986).*fn5 According to Smalis, the grant of a demurrer is a functional equivalent of an acquittal. DER's appeal to this Court is thus barred because of the doctrine of double jeopardy.
Now, October 30, 1987, the order of the Lackawanna County Court of Common Pleas, dated March 4, 1986, sustaining appellee's appeal and granting its demurrer is affirmed.