Commonwealth v. Coward

• Decision Date: 30 April 1980
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Delmar COWARD and Coward Contracting Company, Inc., Appellant.
• Court: Pennsylvania Supreme Court

414 A.2d 91

489 Pa. 327

COMMONWEALTH of Pennsylvania, Appellee, v. Delmar COWARD and Coward Contracting Company, Inc., Appellant.

Supreme Court of Pennsylvania.

April 30, 1980

Argued Sept. 25, 1979.

Richard H. Galloway, Ackerman & Galloway Greensburg, for appellants.

Howard J. Wein, Asst. Atty. Gen., Dept. of Environmental Resources Pittsburgh, for appellee.

Before EAGEN C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.

OPINION

NIX, Justice.

This is an appeal from a preliminary injunction granted by the Commonwealth Court at the behest of the Department of Environmental Resources of the Commonwealth of Pennsylvania (DER), enjoining appellants, Delmar Coward and the Coward Contracting Company from operating a landfill in Westmoreland County, and requiring appellants to remedy the pollution discharged from that landfill. For the reasons below, we affirm the decree of the Commonwealth Court.

For our purposes, this case began on August 16, 1976, when the DER issued the first of two administrative orders directing appellants to submit within 45 days an updated and revised solid waste application and design plan concerning the Westmoreland County landfill, and to submit an application for a revised and modified Industrial Waste permit in order to comply with the Clean Streams Law ^[1] and the Industrial Waste permit already issued to Delmar Coward. This order was issued pursuant to the Clean Streams Law, the Solid Waste Management Act, ^[2] and § 1917-A of the Administrative Code. ^[3] It was made necessary by the continual generation of leachate from the landfill and its discharge into a tributary with the Clean Streams Law and its attendant rules and regulations. Appellant failed to appeal this order and failed to comply with its directives. Consequently the DER issued a second order, dated March 24, 1977, directing the closure of the landfill. The DER is given authority to issue orders to abate such nuisances by § 1917-A of the Administrative Code. Orders issued by the DER do not become final until the party adversely affected has been given the opportunity to appeal to the Environmental Hearing Board (EHB). Administrative Code § 1921-A. ^[4] While the August 16, 1976 order was never appealed and thus became final, the 1977 order was appealed to the EHB which affirmed the order. Without enforcement power of its own, the DER then filed an equity action invoking the original jurisdiction of the Commonwealth Court ^[5] requesting an injunction to abate the nuisance. Appellants filed an independent appeal of the EHB determination to the Commonwealth Court per 42 Pa.C.S.A. § 763, ^[6] subsequent to the filing of the equity action by the DER. The Commonwealth Court chose to dispose of the original equity action first, and granted the relief sought by the DER. (filed September 22, 1978). Although the Commonwealth Court later affirmed the order of the EHB closing the landfill, --- Pa.Cmwlth. ---, 406 A.2d 587 (1979), the cause currently before our Court is the appeal of the preliminary injunction issued by the Commonwealth Court. ^[7]

The first issue raised by appellant is an attack upon the jurisdiction of the Commonwealth Court to entertain and decide the original equity action when the EHB appeal also was before that court. Appellants contend that the filing of an appeal with the Commonwealth Court from an adjudication by the EHB precludes the Commonwealth Court from exercising its original jurisdiction in an equity action between the same parties arising out of the same incident. We disagree.

A court's discretion in handling its own docket has long been recognized. See In Re Road in McCandless Township, 110 Pa. 605, 612, 1 A. 594 (1885). The policy of bringing "each pending matter to a final conclusion as promptly as possible" as is evidenced by Pa.R.J.A. No. 1901(a), further suggests that the Commonwealth Court could properly decide to hear the equity matter first. In fact, since it was docketed first, that policy may require such a disposition. There appear only two possible ways for the Commonwealth Court's jurisdiction to have been postponed: (1) if a petition for a stay of the equity action pending the appeal of the EHB adjudication had been filed by the appellant; or (2) if the filing of the appeal is deemed an automatic stay of the equity action.

A review of the record reveals no application for a stay by appellant. Further, the filing of the appeal to the Commonwealth Court cannot be seen as an automatic supersedeas. Commonwealth v. Bethlehem Steel Corp., 469 Pa. 578, 367 A.2d 222 (1976). There the Court rejected the contention that the Commonwealth Court lacked original jurisdiction to entertain a DER action because an appeal or modification proceedings of the consent order involved was pending before the EHB:

Bethlehem may ultimately prevail in its efforts to have the order modified, and thus could be subject to unnecessary expense if the present order is enforced. This possibility, however, would not justify the conclusion that the courts are without jurisdiction to enforce the order. Such a conclusion would leave the courts powerless to enforce the order even where it is highly unlikely that the order will be modified and where continued pollution in violation of the order presents a serious danger to the public. In effect, the mere application for an extension would operate as a stay; an applicant could continue to pollute for the period required to appeal to the EHB and the courts. Such a result would be totally at odds with the strong legislative policy expressed in both the Air Pollution Control Act and the Clean Air Act. The modification proceedings must be carried out on the polluter's time, not at the expense of the general public.

Id. at 591-592, 367 A.2d at 228-229.

The Court also wrote:

Similarly, we believe that DER orders must remain enforceable during the pendency of modification proceedings in order to comply with the spirit of the Clean Air Act Amendments of 1970. We should not adopt a system by which litigation could be used as a tool to delay enforcement of air quality standards.

Id. at 591 n.22, 367 A.2d at 228 n.22.

While the interpretation goes to a different statute, the analysis is easily applicable to the Clean Streams Law and the Solid Waste Management Act, as the legislative objective is the same: to protect the public from the continuance of harmful pollutants, be it air or water.

Turning to the language of § 1921-A of the Administrative Code, 71 P.S. § 510-21(d) which expressly states that an appeal to the EHB of an DER order will not act as an automatic supersedeas, ^[8] and adopting the rationale of the Court in Bethlehem Steel, it is clear that where a policy exists in favor of enforceability of DER orders when they are not yet final, "an even stronger policy in favor of enforceability applies once an order becomes final." Commonwealth v. Bethlehem Steel Corp., at 588 n.13, 367 A.2d at 227 n.13. As previously noted, a DER order becomes final once the opportunity to appeal to the EHB has been given to the party adversely affected by the order. We now hold that the pendency of a statutorily permitted appeal does not preclude the Commonwealth Court from enforcing final orders of the DER through the court's exercise of its equity jurisdiction.

Appellants next claim that the doctrine of election of remedies precluded the DER from filing an independent equity action to enforce its prior orders. Appellants' misunderstanding of this doctrine has led them into fundamental error, because the DER has never chosen inconsistent remedial paths. The DER has the express authority to issue orders abating or preventing pollution. Clean Streams Law, § 610, as amended, 35 P.S. § 691.610. "The failure to comply with any such order is hereby declared to be a nuisance." Id. This same act authorizes the DER to file suit in equity on behalf of the Commonwealth and to seek an injunction to abate such nuisances. Id. at § 601, as amended, 35 P.S. § 691.601. ^[9] In the present case, the orders of the DER became final after the EHB affirmance. Accordingly, the DER had the right if not the pressing duty, to immediately seek enforcement of its order abating harmful pollution by appellants. This position is supported by the clear words of the act itself which allows the action taken by the DER:

The collection of any penalty under the provisions of this act shall not be construed as estopping the Commonwealth, or any district attorney or solicitor of a municipality, from proceeding in courts of law or equity to abate pollutions forbidden under this act, or abate nuisances under existing law. It is hereby declared to be the purpose of this act to provide additional and cumulative remedies to abate the pollution of the waters of this Commonwealth, and nothing in this act contained shall in any way abridge or alter rights of action or remedies now or hereafter existing in equity, or under the common law or statutory law, criminal or civil, nor shall any provision in this act, or the granting of any permit under this act, or any act done by virtue of this act, be construed as estopping the Commonwealth, persons or municipalities, in the exercise of their rights under the common law or decisional law or in equity, from proceeding in courts of law or equity to suppress nuisances, or to abate any pollution now or hereafter existing, or enforce common law or statutory rights.

Clean Streams Law § 701, 35 P.S. § 691.701 (emphasis added).

Appellants rely primarily upon DER v. Leechburg Mining Co., 9 Pa.Cmwlth. 297, 305 A.2d 764 (1973), as support for their theory that the DER is barred by the doctrine of election of remedies from instituting the present complaint. Leechburg...