Com. ex rel. Allegheny County v. Toth

• Decision Date: 10 June 1959
• Citation: 189 Pa.Super. 552,152 A.2d 284
• Parties: COMMONWEALTH of Pennsylvania ex rel. COUNTY OF ALLEGHENY v. Edward J. TOTH, Appellant.
• Court: Pennsylvania Superior Court

Page 284

152 A.2d 284

189 Pa.Super. 552

COMMONWEALTH of Pennsylvania ex rel. COUNTY OF ALLEGHENY v. Edward J. TOTH, Appellant.

Superior Court of Pennsylvania.

June 10, 1959.

Rehearing Denied June 30, 1959.

Application for Allocatur Denied Aug. 5, 1959.

Kim Darragh, Pittsburgh, for appellant.

Maurice Louik, County Sol., John F. Murphy, Asst. County Sol., Pittsburgh, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

WOODSIDE, Judge.

Edward J. Toth was sentenced by an alderman to pay a fine of $100 and costs for violating the Smoke Control Ordinance of Allegheny County. After appeal to the County Court of Allegheny County and a hearing de novo by that court, it sustained the conviction and sentence.

Toth then appealed to this Court contending that the section of the ordinance under which he was prosecuted was unconstitutional and that the evidence was insufficient to sustain the conviction.

The court below set forth the facts as follows:

'From the testimony at said hearing it can be established that defendant leased, in 1952, a certain tract of land in North Fayette Township, Allegheny County for coal-stripping purposes; that the Bureau of Smoke Control, on complaint received, investigated a burning fire on the leased premises of defendant on August 25, 1954; that said fire is a gob pile, or coal refuse pile, irregular in shape, approximately 200 feet long and 100 feet at its widest depth; that said fire is above the surface of the ground, exposed to the air setting forth smoke; that at the time of investigation defendant had equipment on the subject tract of land near the burning refuse pile; that said burning refuse pile was in existence prior to defendant's entry on the leased premises; that the Bureau of Smoke Control, on August 25, 1954, advised defendant to abate and extinguish said fire; that considerable correspondence ensued between the Bureau and defendant about said fire and the manner of extinguishment; that defendant, on one occasion, did scoop refuse or dirt over the burning gob pile but without any success of abating the fire; that defendant has refused to abate said fire; and that said fire is still burning.'

Appellant 'is willing to accept the Court's resume of the facts.'

The authority to regulate the production or emission of smoke is given the County of Allegheny in the Second Class County Code of July 28, 1953, P.L. 723, § 2195 and § 2197, 16 P.S. §§ 5195, 5197. Prior thereto the authority was given to second class counties by the Act of May 28, 1946, P.L. 793 amended by the Act of May 9, 1947, P.L. 182.

The Smoke Control Ordinance adopted by the Board of County Commissioners of Allegheny County, May 17, 1949, as amended July 12, 1955, provides in section 704 B and B(1) as follows 'B. Open fires connected with the refuse from a coal mine, coal preparation plant, or other coal mining operation shall be governed as follows:

'(1) All persons responsible for areas and refuse in which open fires of this type still exist shall extinguish same by January 1, 1956, or show that due diligence is being exercised to accomplish such purpose.'

The appellant contends that the above provisions do not apply to him as a lessee 'who acquired his rights subsequent to the origin of the fire and who did not start the fire or contribute to it,' and that if the provision does apply to him it 'is unreasonable and confiscatory and a denial of due process.'

The ordinance imposes a duty upon the 'persons responsible for areas and refuse' to extinguish fires burning in the refuse. The 'person responsible for' means the person answerable, accountable, or liable for. It does not mean the person who produced the refuse or caused the fire. See Webster's New International Dictionary, Second Edition (1955). The ordinance attempts to reach the only person who can carry out its mandate to extinguish the fire--that is the person who has control of the refuse pile. The appellant leased the area in 1952. Since that time he has been responsible for the area and refuse in which the fire has been burning.

When the amendment of July 12, 1955, required the fire to be extinguished before January 1, 1956, by the person responsible for the area, it required the appellant to extinguish the fire by that date, and his failure to extinguish it or to show that diligence was being used to accomplish such purpose constitutes a violation of the ordinance. It is immaterial that he does not have fee-simple title to the area, or that he did not create the refuse pile or that he did not cause the fire. Certainly, if a person leased a house with a sidewalk containing a dangerous hole, it would become his duty to correct the dangerous condition within a reasonable time. Whether the hole was there before he leased the premises or was caused by another would be immaterial. There is sufficient evidence to sustain the finding that the appellant violated the ordinance.

The appellant does not challenge the legality of the Smoke Control Ordinance in its entirety. He recognizes the constitutional right of the legislature to regulate the production and emission of smoke into the atmosphere as a proper exercise of the police power in the field of public health. He does not question the statutory authority of the board of county commissioners to enact the ordinance. He does point out that the ordinance and its enforcement must be reasonable in relation to the goal to be obtained, and he contends that as applied to the circumstances of his case the ordinance becomes an unreasonable exercise of the police power in violation of his constitutional rights. See Abie State Bank v. Bryan, 1931, 282 U.S. 765, 51 S.Ct. 252, 75 L.Ed. 690.

If the ordinance imposed an absolute duty upon all persons responsible for areas to extinguish all open fires connected with refuse from coal mines, it would be unreasonable and confiscatory under some circumstances. It is common knowledge that these fires exist in both the anthracite and bituminous areas of the Commonwealth and...