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12/04/97 COMMONWEALTH PENNSYLVANIA v. DELTA

COMMONWEALTH COURT OF PENNSYLVANIA


December 4, 1997

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF
v.
DELTA CHEMICALS, INC., GEORGE CHADA, HYDROCARBON REFINING CORP., BESSEMER & LAKE ERIE RAILROAD, BETHLEHEM STEEL, CARBORUNDUM COMPANY, CASTLE RUBBER CORPORATION, CHICAGO RIVET AND MACHINE COMPANY, CONTRAVES-GOERZ, COOPER INDUSTRIES/MCGRAW-EDISON, FBC CHEMICAL CORPORATION, GENCORP, INCORPORATED, GENERAL MOTORS CORPORATION, GLOBE DATA SYSTEM, INC. D/B/A GLOBE TICKET COMPANY, LEYBOLD VACUUM PRODUCTS, PPG INDUSTRIES, QUALITY CHEMICALS, INC., RESERVE ENVIRONMENTAL SERVICE, INC., ROBERTSHAW CONTROLS, ROCKWELL INTERNATIONAL CORPORATION, SPANG AND COMPANY, A. STUCKI COMPANY, TRACO/THREE RIVERS ALUMINUM, UNION RAILROAD, VOLKSWAGEN OF AMERICA, WESTINGHOUSE ELECTRIC AND BAKERSTOWN CONTAINER CORPORATION, DEFENDANTS

Before: Honorable Joseph T. Doyle, Judge, Honorable Jim Flaherty, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri. Dissenting Opinion BY Judge Doyle.

The opinion of the court was delivered by: Silvestri

ORIGINAL JURISDICTION

OPINION BY SENIOR JUDGE SILVESTRI

Filed: December 4, 1997

In November of 1995, the Department of Environmental Protection (Department) filed a two Count Complaint in our original jurisdiction against defendants, Delta Chemicals (Delta), Hydrocarbon Refining Corporation (HRC), and the President and owner of both, George Chada. *fn1

Count I of the Complaint is a complaint in equity wherein the Department sought recovery of hazardous waste cleanup costs pursuant to the Hazardous Sites Cleanup Act (HSCA). *fn2 In Count II of the Complaint, the Department sought a Declaratory Judgment regarding liability for future cleanup costs. Before us now are the Department's Motion for Summary Judgment on Count I of the Complaint, and its request for Declaratory Relief under Count II.

Because we believe that the Department should have instituted this action before the Environmental Hearing Board (Board) pursuant to Section 507(a) of the HSCA, *fn3 and because we do not view the Department's Action for Declaratory Judgment as proper, we need not address the merits of the case.

Section 507(a) of the HSCA provides, in its entirety:

(a) General rule.-- A responsible person under section 701 or a person who causes a release or threat of a release of a hazardous substance or causes a public nuisance under this act or causes a release or a substantial threat of release of a contaminant which presents a substantial danger to the public health or safety or the environment, or causes a release or a substantial threat of release of a contaminant which presents a substantial threat of release of a contaminant which presents a substantial danger to the public health or safety or the environment, or causes a release of a nonhazardous substance pursuant to section 501(g) shall be liable for the response costs and for damages to natural resources. The department, a Commonwealth agency, or a municipality which undertakes to abate a public nuisance under this act or take a response action may recover those response costs and natural resource damages in an action in equity brought before a court of competent jurisdiction. In addition, the board is given jurisdiction over actions by the department to recover response costs and damages to natural resources.

As is clear from the foregoing Section, an action in equity in a court of competent jurisdiction may be brought by the Department. Moreover, the Board is specifically given jurisdiction over actions by the Department to recover response costs and damages.

In enacting Section 507(a), it must be assumed that the Legislature, in specifying that the Department could bring an equitable action in relation to its recovery of response costs, was aware of the many differences between legal and equitable actions and the separate Rules of Civil Procedure relating thereto (Pennsylvania Rules of Civil Procedure 1501-1591 relating specifically to Actions in Equity). For example, in equity, a litigant can request that a court prohibit or mandate some action by a particular party, in addition to seeking the recovery of monetary damages. Where, however, monetary damages are the only relief sought by a litigant, the remedy which they seek is a legal remedy.

With this in mind, here, because the Department is not seeking any specific equitable relief, as the only thing sought by the Department is its cleanup costs, i.e., monetary damages, we hold that jurisdiction of this matter is properly with the Board, rather than with this Court.

As noted, Section 507(a) gives the Department the option of bringing an equitable action; however, where, as here, there are no grounds for equitable relief, jurisdiction must be with the Board. Accordingly, since proper jurisdiction rests with the Board and not this Court, we will transfer the Department's action to the Board.

In addition to the foregoing, we hold that Count II of the Department's Complaint seeking a Declaratory Judgment is improper. The HSCA, at Section 507(a), specifically sets forth the method by which the Department can seek its recovery costs, those being either through an equitable action in a court of competent jurisdiction (however, as concluded above, only where equitable relief is also sought) or before the Board. Nowhere in the HSCA is the Department authorized to seek a Declaratory Judgment regarding future costs. Accordingly, we will dismiss the Department's action in this regard.

SILVESTRI SILVESTRI, Senior Judge

ORDER

AND NOW, this 4th day of December, 1997, it is hereby ordered as follows:

1. The Department of Environmental Protection's Complaint is transferred to the Environmental Hearing Board.

2. The Department of Environmental Protection's action seeking a Declaratory Judgment is dismissed.

SILVESTRI SILVESTRI, Senior Judge

DISSENTING OPINION BY JUDGE DOYLE

FILED: December 4, 1997

Because I believe that Section 507(a) of the Hazardous Sites Cleanup Act (HSCA), Act of October 18, 1988, P.L. 756, 35 P.S. §§ 6020.101-6020.1305, grants jurisdiction to this Court in the instant matter, I respectfully Dissent. I disagree with the interpretation that Section 507(a) denies jurisdiction to this Court from hearing actions which seek only monetary damages.

The essential language of Section 507(a) is as follows:

The department . . . may recover response costs and natural resource damages in an action in equity brought before a court of competent jurisdiction. In addition, the board is given jurisdiction over actions by the department to recover response costs and damages to natural resources.

35 P.S. § 6020.507(a) (emphasis added).

The Commonwealth Court is a court of competent jurisdiction; and, the Department has filed an equity action with this Court to recover response costs. Those procedural/jurisdictional facts could not be more clear, nor the language of Section 507(a) more explicit. The HSCA giving this Court jurisdiction is a statutory response to a modern-day environmental problem and the jurisdiction it vests with this Court is completely foreign to traditional concepts of equity jurisdiction.

Likewise, the language in Section 507(a), "in addition," clearly signals an intent to grant concurrent jurisdiction to the Board and this Court when the Department is seeking monetary damages. In that sentence addressing the concurrent jurisdiction of both the Court and the Board, the statute speaks of exactly the same relief, that is, response costs and natural resource damages, neither of which are traditional equitable remedies; they are entirely statutory remedies. *fn1

Moreover, this Court has published opinions in which it has assumed jurisdiction over complaints filed by the Department that sought only the award of response costs. In Department of Environmental Protection v. Altoona City Authority, 689 A.2d 1009 (Pa. Commw.), petition for allowance of appeal denied, Pa. , 693 A.2d 583 (1997), we were presented with the issue of whether this Court has jurisdiction under Section 507(a) of the HSCA to decide claims filed against additional defendants by the original defendant. In concluding that this Court does not have jurisdiction over the additional defendants, Judge Samuel L. Rodgers stated the following:

It is apparent that this section [507(a)], together with Section 761(a)(2) of the Judicial Code, 42 Pa. C.S. § 761(a)(2), merely grants concurrent jurisdiction to the Commonwealth Court of an action brought by the Department against the original defendant, and does not authorize jurisdiction over additional defendants against whom the Department has asserted no claim.

Id. at 1011 (emphasis added). Additionally, Judge Rodgers explained that, in Department of General Services v. Frank Briscoe Co., Inc., 502 Pa. 449, 466 A.2d 1336 (1983), the Supreme Court of Pennsylvania "pointed out that the jurisdiction of the Commonwealth Court is unique in that it is predicated upon the identity of the parties and the capacity in which they sue or are sued rather than upon the nature of the cause of action asserted. . . ." Altoona City Authority, 689 A.2d at 1011 (emphasis added). Certainly, if the jurisdiction of this Court does not rest upon the nature of the cause of action asserted, it should not rest upon the nature of the relief requested.

Similarly, in Department of Environmental Resources v. Bryner (Bryner I), 149 Pa. Commw. 59, 613 A.2d 43 (Pa. Commw. 1992), this Court exercised jurisdiction by determining, on summary judgment, the liability issue of four defendants for response costs pursuant to Section 507(a) of the HSCA. In Bryner I, we granted summary judgment in favor of the Department. Subsequently, in Department of Environmental Resources v. Bryner (Bryner II), 161 Pa. Commw. 1, 636 A.2d 227 (Pa. Commw. 1997), the only issue before us for determination was the amount for which the defendants were liable, which we held to be $102,285.90, and we again exercised jurisdiction over that issue alone.

Although the decisions in Altoona City Authority, Bryner I and Bryner II were not adjudicated by a three-Judge panel of this Court, they are still persuasive authority, for if the Court had jurisdiction in those cases, it has jurisdiction in this case. Because this Court has jurisdiction under the HSCA, I would not raise, sua sponte, *fn2 the jurisdictional issue and would address the merits of the appeal.

JOSEPH T. DOYLE, Judge


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