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O'HARA SANITATION COMPANY v. COMMONWEALTH PENNSYLVANIA (04/26/89)

decided: April 26, 1989.

O'HARA SANITATION COMPANY, WILLIAM J. O'HARA, JR., PATRICK O'HARA, WILLIAM J. O'HARA, SR., AND BETTY E. O'HARA, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Original Jurisdiction Appeal in the case of O'Hara Sanitation Company, William J. O'Hara, Jr., Patrick O'Hara, William J. O'Hara, Sr., and Betty E. O'Hara v. Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

John M. Elliott, with him, James D. Morris, Mark J. Schwemler and Leslie E. Bowser; Of Counsel: Baskin, Flaherty, Elliott & Mannino, P.C., for petitioners.

Mary Young, Assistant Counsel, for respondent.

Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 125 Pa. Commw. Page 442]

The Commonwealth of Pennsylvania, Department of Environmental Resources (Department) has filed preliminary objections seeking dismissal of O'Hara Sanitation Company, William J. O'Hara, Jr., Patrick O'Hara, William J. O'Hara, Sr., and Betty E. O'Hara's (petitioners) petition for review in the nature of a complaint in equity. We will overrule the preliminary objections.

This litigation has its genesis in a complaint in equity and petition for preliminary and special relief filed by the Department on August 12, 1985, in the Court of Common Pleas of Montgomery County. The Department sought to enjoin the petitioners from disposing and processing solid waste without a permit. On August 19, 1985, the trial court preliminarily enjoined petitioners from conducting its waste removal operations. On March 14, 1986, a full hearing was held to determine whether petitioners' recycling activities constituted the processing of solid waste. On April 24, 1986, the trial court ruled that the petitioners' recycling activities did not amount to processing as defined by the Solid Waste Management Act (Act).*fn1

The Department appealed the April 24, 1986, order and this appeal was docketed at No. 1595 C.D. 1986. The Department and the petitioners entered into settlement negotiations which delayed the disposition of No. 1595 C.D. 1986. The Department has recently requested that a briefing schedule be established in No. 1595 C.D. 1986.

[ 125 Pa. Commw. Page 443]

While the settlement negotiations were taking place, the Environmental Quality Board promulgated new municipal waste regulations. The Department then notified the petitioners that the recycling activities they were conducting required a permit under these new regulations. On September 29, 1988, the Department ordered the petitioners to cease operations for failure to obtain the necessary permits under the Act.

On November 18, 1988, petitioners filed an application for preliminary and permanent injunction, as well as a complaint in equity in this Court's original jurisdiction seeking relief from the Department's September 29, 1988, order. A hearing was held on petitioners' application, which resulted in the issuance of a preliminary injunction on December 9, 1988, enjoining the Department from enforcing any part of its September 29, 1988, order. A January 6, 1989, conference to resolve this matter was unsuccessful, and now the Department's preliminary objections to petitioners' complaint in equity are before the Court.

In considering preliminary objections, a court must accept as true all factual averments in the pleading attacked. Yellow Cab Operators and Drivers Assoc. v. Pennsylvania Public Utility Commission, 87 Pa. Commonwealth Ct. 626, 488 A.2d 369 (1985). In determining the legal sufficiency of preliminary objections, this Court must accept as true all well pleaded facts and reasonable inferences which may be deduced therefrom. Benjamin Coal Company v. Department of Environmental Resources, 100 Pa. Commonwealth Ct. 1, 513 A.2d 1120 (1986).

The Department in its first preliminary objection argues that the Commonwealth Court does not have jurisdiction to hear the petition for review because petitioners failed to exhaust their administrative remedies. ...


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