Commonwealth v. Cromwell Twp.

• Decision Date: 23 November 2011
• Citation: 32 A.3d 639
• Parties: COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee v. CROMWELL TOWNSHIP, HUNTINGDON COUNTY, Appellant.
• Court: Pennsylvania Supreme Court

32 A.3d 639

COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee

v.CROMWELL TOWNSHIP, HUNTINGDON COUNTY, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 15, 2010.Decided Nov. 23, 2011.

Lowell Rector Gates, Sarah Elaine McCarroll, Gates, Halbruner & Hatch, P.C., Clifton R. Guise, Gates, Halbruner, Hatch & Guise, P.C., Lemoyne, for Cromwell Township, Huntingdon County.

David Russell Getz, Wix, Wenger & Weidner, P.C., Harrisburg, for Appellant Amicus Curiae, PA State Association of Township Supervisors.

Martin R. Siegel, PA Department of Environmental Protection, Harrisburg, Susan P. Shinkman, Pittsburgh, Dennis A. Whitaker, Harrisburg, for Department of Environmental Protection.BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN JJ.

OPINION

Justice ORIE MELVIN.

This is an appeal by Cromwell Township (“Township”) from a July 8, 2009 Commonwealth Court order implementing a March 9, 2009 order sentencing Cromwell Township supervisors to three to six months imprisonment for contempt.

I.

The procedural history of this case is as follows. Section five of the Pennsylvania Sewage Facilities Act,¹ 35 P.S. § 750.5, requires municipalities to submit an officially-adopted, comprehensive plan for sewage services to the Pennsylvania Department of Environmental Protection ² (“DEP”). In general, the plan must describe “existing sewage disposal methods, take into consideration existing plans for population growth and land development, [and] provide for future needs by specifying plans for sewage treatment facilities that will adequately prevent the discharge of untreated or inadequately treated sewage or other waste into any waters.” Delaware Riverkeeper v. Dept. of Environmental Protection, 879 A.2d 351, 352 n. 2 (Pa.Cmwlth.2005) (citation omitted).

In August 2000, DEP approved Township's Act 537 Sewage Facilities Plan (“Plan”). The Plan provided for public sewers to be constructed from the Village of Pogue to Rockhill Furnace Borough and for construction of a treatment facility. Implementation of the Township sewage collection and treatment system involved the: 1) acquisition of several million dollars of financing; 2) creation of numerous easements; 3) passage of multiple ordinances; and 4) advertising, opening, and awarding of construction bids. Although various sewage disposal problems existed, Township concluded the Plan was too expensive to implement. Thus, despite requesting several extensions that DEP granted, Township failed to implement the Plan. On May 24, 2002, DEP ordered Township to implement its August 2000 Act 537 Plan. This order was not appealed.

Cromwell Township surrounds Orbisonia and Rockhill Boroughs, which are adjoining boroughs in Huntingdon County, Pennsylvania. In January 2005, the Orbisonia Rockhill Joint Municipal Authority (“ORJMA”), an authority organized pursuant to the Municipalities Authorities Act, 53 Pa.C.S. § 5601 et seq. , operated the public sewage system for residents of both boroughs. At that time, ORJMA was experiencing an overload in its wastewater treatment plant; concurrently, Township was endeavoring to execute its Plan because DEP was threatening to impose a daily penalty for failure to do so. Township Board of Supervisors (“Board”) Chairman Ted Whitsel approached ORJMA and proposed a joint venture that would increase the capacity of ORJMA's plant and, simultaneously, decrease the anticipated cost to Township residents for their sewage treatment.

ORJMA pursued a feasibility study in August 2005. Following public meetings in the ensuing weeks, Township executed a sewage treatment agreement (“Agreement”) with ORJMA on November 15, 2005. One month later, Township amended the Plan to implement that Agreement, which it then submitted to DEP. On January 12, 2006, DEP approved the Plan's amendment. Concurrently, however, membership of the Township's Board changed when David Booher, who openly opposed the Plan, was elected to a six-year term and Lewis Fleck, who was appointed to fill a vacancy, joined the Board. Chairman Whitsel resigned as a supervisor in December 2005, and it appears he was replaced by Howard Clark.

The reconstituted Board thus repealed the ordinances required under the Agreement. Township then appealed DEP's January 12, 2006 approval of the Plan's amendment regarding the ORJMA Agreement to the Environmental Hearing Board (“EHB”),³ and ORJMA and Township stopped cooperating. DEP withdrew its January 12, 2006 approval of the Plan's amendment, thereby placing the Township once again under the obligations imposed by DEP's May 24, 2002 order to implement Township's August 2000 Act 537 Plan. The EHB dismissed Township's appeal as moot.

On December 19, 2007, DEP filed a “Petition for Enforcement of Administrative Order” in the Commonwealth Court to enforce the May 24, 2002 order directing Township to implement its Act 537 Sewage Facilities Plan. One month later, on January 22, 2008, the Commonwealth Court granted DEP's petition, ordered Township to comply with DEP's May 24, 2002 administrative order, and indicated that DEP “may seek a contempt citation through this Court and appropriate proceedings shall be scheduled.” Order, 1/22/08, at 1. Over the ensuing seven and one-half months, when Township failed to comply with the Commonwealth Court's January 22, 2008 order as well, DEP filed a petition for contempt on August 11, 2008. DEP requested that the Commonwealth Court 1) impose a daily $300 fine against Township and each supervisor until Township complied with the January 22, 2008 order, retroactive to June 1, 2008; 2) award DEP costs and attorneys' fees; and 3) set a timeline of conditions for Township to purge its contempt. DEP Contempt Petition, 8/11/08, at 6. Township filed an answer on September 12, 2008. Following a hearing on DEP's contempt petition on September 16, 2008, the Commonwealth Court found the members of the Board of Supervisors in contempt ⁴ and concluded that Township had failed to comply with its January 22, 2008 order. The Commonwealth Court directed all members of the Board to appear for sentencing on December 4, 2008. With regard to the ability of Board members to purge themselves of contempt, the Commonwealth Court instructed that it would “consider efforts to comply with the terms of the Court's order dated January 22, 2008.” Order, 9/16/08, at 1–2.

The Commonwealth Court held additional hearings on December 4, 2008 and March 9, 2009. Following the March 9 hearing, the court concluded that the three Board supervisors had not purged contempt. Despite the fact that DEP sought only the imposition of fines against Township and the supervisors, Commonwealth Court Judge Keith B. Quigley sentenced David Booher, Lewis Fleck, and Howard Clark to undergo three to six months imprisonment, but he delayed their incarceration. The Commonwealth Court further urged the supervisors to “purge themselves of contempt by complying with the conditions previously directed in earlier orders of this Court.” Order, 3/9/09, at 1.

Following a hearing on July 8, 2009, the Commonwealth Court ordered the implementation of its March 9, 2009 order imposing sentence against David Booher, Lewis Fleck, and Howard Clark. Sometime between the March 9, 2009 hearing, when sentence was imposed, and the July 8, 2009 hearing, when the Commonwealth Court implemented the imposition of sentence, however, Howard Clark had resigned. Judge Quigley concluded that Clark was beyond the power of the Court to offer purge conditions.

The court's comments on July 8, 2009, following the hearing, in their entirety, are as follows:

THE COURT: All right. I've heard what everybody has to say here, and I have a few conclusions based on my experience with the record in this case. And I had said many times that when it comes to the relationship between the government, in this case represented by Department of Environmental Protection, and municipalities, that that relationship can be sometimes strained, can be sometimes confused, can be sometimes and usually is ultimately satisfactory, sometimes even amicable. But I am certainly no stranger to seeing conflicts.

Now, if you know anything about where I come from, the central part of this state, nobody can be more sympathetic to the plight of municipalities than I from a philosophical point of view. I think I attempted to express that position on numerous occasions in dealing with this situation.

On the other hand, I prefaced our proceedings here today by indicating that the authority of the Court is extremely important to orderly government, a system of government under law. And the issue here today was a narrow issue as to whether or not the supervisors of the township had—had complied with—or sufficiently took efforts to purge civil contempt.

In civil contempt situations, the Court is always required to basically give the, quote/unquote, keys to the jailhouse by giving the persons who stand in contempt the ability to remedy the contemptuous or contumacious conducts or lack thereof, as the case may be.

In this case, I attempted to do that, specifically by my order of March 9, 2009. And inquiring into the efforts of the township and its representatives at this time to comply with reasonable purge conditions, what I've seen basically is what I've seen all along, that the last-minute efforts, quote/unquote efforts, that I think we permitted on occasions to put off a final day of reckoning by attempting to avoid this day are inadequate.

I don't think—I think that the efforts of the township are absolutely inadequate to address the issue of contempt as it exists today. I find that under no circumstances is this township going to implement anything over—other than an on-lot system, which basically is a system that exists today. I accordingly find no credible efforts at all to purge contempt.

Now we have one supervisor who has resigned. That supervisor is beyond the power of the Court to...