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decided: August 3, 1989.


Appeal from Common Pleas Court, Tioga County, Honorable Robert M. Kemp, Judge.


Steven L. Friedman and James J. Greenfield, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, for appellant.

Allen E. Ertel, Allen E. Ertel & Assoc., Williamsport, for appellee.

Colins and Palladino JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 128 Pa. Commw. Page 33]

Ronald H. Clark, Inc. (Clark) appeals the order of the Tioga County Court of Common Pleas which sustained the preliminary objections of the Township of Hamilton (Township) to Clark's declaratory judgment complaint seeking a determination that Ordinances passed by the Township restricting Clark from operating a landfill were invalid.

The facts surrounding the appeal are that in November of 1984, Clark obtained long term leases on 400 acres in Hamilton Township for the purpose of operating a "natural renovation landfill." On November 9, 1984, Clark applied to the Department of Environmental Resources (DER) for a landfill permit which was denied on September 13, 1985. Clark re-applied for a permit to operate a state-of-the-art landfill with a protective liner. This permit application had not yet been acted upon at the time of the decision and opinion of the trial court.*fn1

[ 128 Pa. Commw. Page 34]

In November of 1985, the Township passed four Ordinances that purported to regulate the use of landfills in the Township. Ordinance No. 14 regulates landfills by creating location restrictions and states no landfill may operate without written permission by the Board of Supervisors. Ordinance No. 16 prohibits vehicles weighing more that 30,000 pounds from using a described portion of a Township road. Ordinance No. 17 governs operation of solid waste landfills and establishes location restrictions and assesses a 10% tax on the landfill's gross yearly revenues, increasing by 1% annually. Ordinance No. 19 basically regulates activities involving deep mines and prohibits excavations more than ten feet deep without a Township permit.

On June 6, 1988, Clark filed an action under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, seeking a determination that these Ordinances were invalid because landfill operation has been pre-empted by the Solid Waste Management Act, 35 Pa.C.S. §§ 6018.101-6018.1003. Clark also alleged that the Ordinances represented spot zoning,*fn2 and that the Township is barred by the pending ordinance doctrine from enforcing them against Clark. Clark further contends that Ordinance No. 16 imposing a weight restriction is pre-empted by the Motor Vehicle Code, 75 Pa.C.S. §§ 4941-4947, and Ordinance No. 19 imposing an excavation prohibition is pre-empted by the Bituminous Mine Subsidence and Land Conservation Act, 52 Pa.S. § 1406.7(b). Clark also argued that none of the Ordinances were properly advertised and noticed.

The Township filed preliminary objections to Clark's action for declaratory judgment, several of which the trial court sustained.*fn3 The trial court held that since Clark had

[ 128 Pa. Commw. Page 35]

    been denied one landfill permit by DER and the reapplication had not yet been acted upon by DER, no actual case or controversy existed and the case was not ripe for declaratory decision. The trial court also concluded that the pending ordinance doctrine did not apply*fn4 and Clark had not stated a claim that the Ordinances were improperly advertised or noticed. Because we conclude that this matter does not present an actual case or controversy, we do not reach the pending Ordinance or notice issues and must affirm the trial court.

Petitions for declaratory judgments are governed by the provisions of the Declaratory Judgments Act (DJA), 42 Pa.C.S. §§ 7531-7541. The Declaratory Judgments Act is broad in scope and is to be liberally construed and administered, but is not without its limitations. Cloonan v. Thornburgh, 103 Pa. Commonwealth Ct. 1, 519 A.2d 1040 (1986), appeal dismissed sub nom. Pennsylvania Liquor Control Bd. v. Casey, 516 Pa. 52, 531 A.2d 1391 (1987). For instance, declaratory relief is appropriate only where there is an actual controversy. South Whitehall Township v. Department of Transportation, 82 Pa. Commonwealth Ct. 217,

[ 128 Pa. Commw. Page 36475]

A.2d 166 (1984). In the instant case, Clark seeks declaratory relief on the theory the Ordinances in question would cause irreparable harm*fn5 by interfering with Clark's "vested rights in the enjoyment of its leasehold interest by making it impossible for Clark to operate a landfill on the property in the event that Clark is granted a permit to do so by DER." (Amended Complaint in Equity at p. 5; R.R. at 30a).

A declaratory judgment to decide future rights will not issue in a case where the alleged breach of the petitioner's rights is merely an anticipated event which may never happen and a petition for declaratory judgment is properly dismissed where the proceeding may prove to be merely academic. McCandless Township v. Wylie, 375 Pa. 378, 381-82, 100 A.2d 590, 592 (1953), citing Eureka Casualty Co. v. Henderson, 371 Pa. 587, 92 A.2d 551 (1952). While the subject matter of the dispute giving rise to a request for declaratory relief need not have erupted into a full-fledged battle, petitioner must at least allege facts demonstrating the existence of an active controversy relating to the invasion or threatened invasion of the petitioner's legal rights; there must emerge the "ripening seeds" of a controversy. In re Cryan's Estate, 301 Pa. 386, 152 A. 675 (1930).

Here, any potential interference with Clark's landfill operations, by necessary implication, is contingent on the granting of a permit by DER. Clark cannot lawfully operate a landfill without a DER permit and, therefore, may not

[ 128 Pa. Commw. Page 37]

    claim to be hindered until such a permit is granted. Thus, Clark has not established a causal connection between the action complained of (enacting the Ordinances) and a present injury to its legal interests. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). It must be conceded that if Clark possessed a valid operating permit from DER, there could*fn6 arise "antagonistic claims indicating imminent and inevitable litigation." Chester Upland School Dist. v. Commonwealth, 90 Pa. Commonwealth Ct. 464, 468, 495 A.2d 981, 983 (1985). However, that is not the case here. Clark has failed to plead the existence of a valid permit or that one is even reasonably forthcoming.*fn7 Indeed, DER may never grant Clark a permit to operate a landfill. Should it turn out that Clark is never granted a permit by DER, the Township Ordinances will never be imposed on Clark, and this Court will not render a decision under such circumstances.*fn8 See Page 38} Singer v. Sheppard, 33 Pa Commonwealth Ct. 276, 381 A.2d 1007 (1987).

Clark raises Joint Bargaining Comm. of the Pennsylvania Social Servs. Union v. Commonwealth, 109 Pa. Commonwealth Ct. 11, 530 A.2d 962 (1987), to argue that legal injury is not necessary to confer standing under DJA. Joint Bargaining was a case arising under our original jurisdiction and we granted jurisdiction to hear the case to decide important questions of law. The issue before us today, however, is not whether a party does, or does not, have standing to bring a declaratory judgment action. The issue here, rather, is whether a court exercising sound discretion may decline to take jurisdiction over a petition for declaratory judgment. We reaffirm the long-standing rule that declaratory judgments are not obtainable as a matter of right. Whether the lower court should exercise jurisdiction over a declaratory judgment proceeding is a matter of sound judicial discretion, State Farm Mut. Ins. Co. v. Semple, 407 Pa. 572, 180 A.2d 925 (1962); Smith v. County of York, 37 Pa. Commonwealth Ct. 47, 388 A.2d 1149 (1978), cert. denied, 441 U.S. 908, 99 S.Ct. 1999, 60 L.Ed.2d 377 (1979); Presbyterian-University of Pennsylvania Medical Center v. Keystone Ins. Co., 251 Pa. Super 71, 380 A.2d 381 (1977). We see no abuse of discretion in the case at bar, especially where the facts present no actual, existing case or controversy as between Clark and the limitations in the regulatory ordinances as applied to Clark.

Accordingly, we affirm the decision of the trial court.


NOW, August 3, 1989, the order of the Court of Common Pleas of Tioga County at No. 310 Civil Division 1988, dated January 26, 1989, is hereby affirmed.

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