Com. v. Derry Tp., Westmoreland County
| Citation | 466 Pa. 31,351 A.2d 606 |
| Parties | COMMONWEALTH of Pennsylvania v. DERRY TOWNSHIP, WESTMORELAND COUNTY, et al. (two cases), Appeal of YOUNGSTOWN BOROUGH. Appeal of DERRY TOWNSHIP. |
| Decision Date | 29 January 1976 |
| Court | United States State Supreme Court of Pennsylvania |
Jon M. Lewis, Mahady & Mahady, Greensburg, for appellant Youngstown borough.
Clarence F. McBride, Greensburg, for appellant Derry Tp.
Robert J. Shostak, Sp. Asst. Atty. Gen., Clarence F. McBride, William C. Stillwagon, Greensburg, George M. Lynch, Latrobe, for appellees, Derry Tp. and others.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
This is an appeal 1 from orders of the Commonwealth Court affirming both a finding that appellant Derry Township (Derry) was in contempt of an administrative order and an order denying appellant Youngstown Borough (Youngstown) representation on the Latrobe Municipal Authority (Authority).
In September 1971, the Department of Environmental Resources (DER) issued administrative orders to Youngstown, Derry and Unity Township (Unity) requiring, inter alia, negotiation and agreement with Latrobe Borough (Latrobe) and Authority for the regionalization of Authority's sewage treatment plant. An explanation of the right to and procedure for appealing the order was attached to the above administrative orders. No appeal was taken by Derry, Youngstown or Unity from these administrative orders.
For the next nine months, negotiations were held among Youngtown, Derry, Unity, Latrobe and Authority, but no final agreement was executed. During these negotiations representation of Derry, Unity and Youngstown on Authority's board emerged as a major bar to an agreement. In June 1972 DER issued administrative orders to Latrobe and Authority to negotiate and agree with Derry, Youngstown and Unity on a plan for the regionalization of Authority's sewage treatment plant. Authority and Latrobe have appealed this administrative order to the Environmental Hearing Board. Both appeals are still pending.
On July 10, 1972, DER filed a petition in Commonwealth Court seeking to have Derry, Youngstown, Unity, Latrobe and Authority held in contempt for failing to comply with the regionalization orders issued September 10, 1971, and June 19, 1972.
On July 25, 1972, an evidentiary hearing on the contempt petition was held before Judge Kramer of the Commonwealth Court. 2 On July 31, 1972, Judge Kramer entered an order which found Derry in contempt for failure to comply with the order of September 10, 1971, which required an agreement, and not merely negotiations, for the regionalization of Authority's sewage plant, and further ordered Derry to negotiate such an agreement within ten days. If these negotiations failed, a master was to mediate the talks for seven days. If mediation failed, the Commonwealth Court would issue an order directing the parties to join an agreement to be prepared by the court. The order further tenatively accepted an agreement between Youngstown, Unity, Latrobe and Authority. No agreement between Derry and Authority has yet been reached.
On August 9, 1972, Derry filed exceptions to Judge Kramer's order. On November 21, 1973, Commonwealth Court issued two orders with opinions. The first mandated compliance with the administrative orders calling for a regionalization agreement, and also accepted a representation formula which provided for the expansion of the Authority Board to seven members, with one member each for Derry, Youngstown, and Unity. The second order dismissed the exceptions of Derry.
On January 25, 1974, Judge Kramer in a memorandum opinion and order accepted an agreement which changed the representation requirements for the Authority Board from the November 21, 1973, order of the Commonwealth Court. The agreement involved all of the parties except Derry. Youngstown and Derry have appealed the above orders.
Since these appeals are complex, we shall discuss each appeal separately.
Appellant Derry attacks (A) the authority of DER to issue the order of September 10, 1971; (B) the order's finality; and (C) the method by which DER sought a contempt order. We reject all three arguments and affirm the order of the Commonwealth Court.
A. Derry argues that DER lacks the statutory authority to order minicipalties to combine into regional sewage treatment systems, and that even if it has the authority to do so, the order in this case is procedurally defective. We do not agree with either contention.
The Act of June 22, 1937, P.L. 1987, as amended August 23, 1965, P.L. 372, July 31, 1970, P.L. 653, § 1 et seq., 35 P.S. §§ 691.1 et seq. (Supp.1975) (Clean Streams Law), lists the rights, duties and obligations of the department in dealing with discharges of sewage into the waters of the Commonwealth. Section 203(b) of the Clean Streams Law reads in relevant part:
Id. § 203(b), 35 P.S. § 691.203(b).
The section invests DER with the authority to order municipalities to take the steps necessary to eliminate sewage pollution in our streams, lakes and rivers. To permit DER to order municipalities to construct a plant sufficient to serve an appropriate region, but to deny it the authority to order negotiations and agreement concerning use of the plant so ordered to be built would be a narrow and unwarranted construction of the statute. Further, the section is inclusive not exclusive, 'such orders may include, but shall not be limited to' the enumerated list. Id. We, therefore, find that the Legislature has given DER the statutory authority to issue the September 10, 1971, order requiring agreement concerning the regionalization of Authority's sewage treatment plant.
Derry also attacks the procedure by which the September 10, 1971, order was promulgated by DER. It claims that DER was, under the administrative code, required to hold hearings before the order could be issued. The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, art. XIX--A, § 1921--A(c), added Dec. 3, 1970, P.L. 834, § 20(c), 71 P.S. § 510--21(c) (Supp.1975), refutes this contention:
'(c) Anything in any law to the contrary notwithstanding, any action of the Department of Environmental Resources may be taken initially without regard to the Administrative Agency Law, but no such action . . . shall be final . . . until (a person affected by the action) has had an opportunity to appeal such action to the Environmental Hearing Board; provided, however, that any such action shall be final as to any person who has not perfected his appeal in the manner hereinafter specified.'
DER possesses the initial authority to issue orders without prior hearing. Such orders are not final until the aggrieved persons have had a right to appeal. This procedure was followed in this case, Derry did not appeal, and the order became final without the necessity of holding hearings.
B. Derry argues extensively and under several guises that it was denied due process of law because it was prohibited from attacking the validity of the administrative order in the enforcement proceeding before the Commonwealth Court. It contends: (1) that Derry never received notice of (a) its right to appeal the order or (b) the effort of its failure to appeal on the order's finality, and (2) that its failure to appeal should not be a bar to its attacks on the order before the Commonwealth Court. We reject both arguments.
The record in this case shows that attached to the September 10, 1971, order to Derry was a cover letter which indicated that Derry had right to appeal the order. The letter also included a copy of the DER rules of practice and procedure for appeals. These rules detail when and how to perfect appeals, and state clearly that failure to perfect an appeal within the period allowed results in the order becoming final. This was adequate notice to Derry of its appeal rights. No appeal was taken by Derry to the Environmental Hearing Board. The failure to appeal made that order final and foreclosed any attack on its content or validity in the enforcement proceeding.
C. Finally, Derry argues that the pleading filed by DER which led to the contempt finding was legally inadequate to vest jurisdiction in the Commonwealth Court. We do not agree.
Section 210 of the Clean Streams Law provides in relevant part:
'(A)pplication may be made by the Attorney General to the . . . Commonwealth Court (for the enforcement of a DER order through the court's contempt power) . . ..'
Appellant maintains that because of the enforcement nature of the relief sought, the 'application' must conform to Rule 1007 of the Pennsylvania Rules of Civil Procedure. 3 We do not agree.
Section 210 of the Clean Streams Law authorizes the attorney general to make 'application' to courts for the enforcement of the administrative order. In the instant case, the Commonwealth made 'application' through a petition to adjudge respondents in contempt and attached a rule to show cause to the petition. This is a proper procedure in such a situation. See Commonwealth v. Washington Township, --- Pa. ---, 344 A.2d 456 (1975); Pennsylvania Crime Commission Petitions, 446 Pa. 152, 285 A.2d 494 (1971).
On November 21, 1973, the Commonwealth Court entered an order requiring Latrobe, Youngstown,...
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