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EUREKA STONE QUARRY v. COMMONWEALTH PENNSYLVANIA (08/01/88)

decided: August 1, 1988.

EUREKA STONE QUARRY, INC., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of Commonwealth of Pennsylvania v. Eureka Stone Quarry, Inc., Nos. 198, 199, 200 Cr. 86.

COUNSEL

Marcus S. Saitschenko, with him, John A. VanLuvanee, Eastburn and Gray, for appellant.

Amil M. Minora, Assistant District Attorney, with him, Ernest D. Preate, Jr., District Attorney, for appellee.

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

Author: Doyle

[ 118 Pa. Commw. Page 301]

Before us is an appeal by Eureka Stone Quarry (Appellant) from an order of the Court of Common Pleas of Lackawanna County denying Appellant's motions for arrest of judgment and for a new trial.

This case involves three summary citations issued to Appellant in September and November of 1985 by the Department of Environmental Resources (DER). Two of these citations alleged that Appellant operated a stone quarry which is a stationary air contamination source, and permitted visible particulate matter to pass outside the stone quarry's property in violation of 25 Pa. Code § 123.1 and Section 8 of the Air Pollution Control Act (Act).*fn1 A third summary citation was issued against Appellant alleging that Appellant's operations at its

[ 118 Pa. Commw. Page 302]

    stone quarry plant were in violation of the operating permit issued by DER and in violation of Section 8 of the Act as well as 25 Pa. Code § 127.25. Regulation 127.25 prohibits, inter alia, permitting the operation of an air contamination source in a manner inconsistent with good operating practices.

On February 6, 1986, a hearing was held before a district justice and Appellant was found guilty on all charges. Thereafter, an appeal was taken and a de novo hearing was held before the common pleas court. Again, Appellant was found guilty on all three charges. Appellant then filed motions in arrest of judgment and for a new trial, which were denied. In its appeal to this court, Appellant asserts that the trial court abused its discretion in denying its motions. We cannot agree.*fn2

Appellant raises four issues on appeal. The first is whether there is adequate evidence on the record to support a conviction under 25 Pa. Code § 123.2. Section 123.2 provides:

[ 118 Pa. Commw. Page 303]

No person shall cause, suffer, or permit fugitive particulate matter to be emitted into the outdoor atmosphere from any source or sources specified in § 123.1(a)(1)-(9) (relating to prohibition of certain fugitive emissions) if such emissions Page 303} are visible, at any time, at the ...


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