Commonwealth v. Glen Alden Corp.

Decision Date03 May 1965
Citation210 A.2d 256,418 Pa. 57
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. GLEN ALDEN CORPORATION and Pennsupreme Coal Company.
CourtPennsylvania Supreme Court

William M. Gross and Joseph L. Cohen, Asst. Attys. Gen Harrisburg, Walter E. Alessandroni, Atty. Gen., and Edward Friedman, Deputy Atty. Gen., Department of Justice Harrisburg, for appellant.

Louis G. Feldmann, Anthony J. Ciotola, Hazleton, for Pennsupreme Coal Co.

Franklin B. Gelder, Wilkes-Barre, William E. Zeiter, Richard P. Brown Jr., Philadelphia, for Glen Alden Corp.


COHEN Justice.

This is an appeal by the plaintiff, Commonwealth of Pennsylvania, from a judgment for defendants, Glen Alden Corporation and Pennsupreme Coal Company, entered on the basis of the defendants' preliminary objections to the lower court's equity jurisdiction.

The Commonwealth seeks an order requiring defendants to extinguish or remove burning coal refuse piles, allegedly maintained by them. The Commonwealth asserts that they are public nuisances because they release noxious gases which adversely affect the health and well-being of the residents of Ashley and Hanover Townships in Luzerne County. In our opinion, equity has no jurisdiction to inquire into this controversy because of the existence of the Air Pollution Control Act, [1] and, accordingly, the complaint should have been dismissed.

It has been held that equity's jurisdiction to restrain a public nuisance rests upon Section 1 of the Act of Feb. 14, 1857, P.L. 39, 17 P.S. § 283, which extends to all the common pleas courts of the Commonwealth the equity jurisdiction expressly conferred on common pleas courts of Philadelphia County by the Act of June 16, 1836, P.L. 784, § 13, 17 P.S. § 282, to prevent or restrain 'the commission or continuance of acts contrary to law and prejudicial to the interests of the community * * *.' Commonwealth ex rel. Shumaker v. New York & Pennsylvania Company, Inc., 367 Pa. 40, 52, 79 A.2d 439, 446 (1951); Commonwealth ex rel. Woods v. Soboleski, 303 Pa. 53, 55, 153 A. 898, 899 (1931); Commonwealth v. Kennedy, 240 Pa. 214, 220-221, 87 A. 605, 606 (1913). But we have frequently decided that equity has no jurisdiction to inquire into a controversy where to do so would obviate a statutory procedure provided by the Legislature for its resolution. See, e. g., Taylor v. Moore, 303 Pa. 469, 154 A. 799 (1931). This salutory result is dictated by the Act of March 21, 1806, P.L. 558, 4 Sm.L. 326, § 13, 46 P.S. § 156, which provides that '[i]n all cases where a remedy is provided, * * * or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued * * *.' Accordingly, if the Air Pollution Act, supra, provides a framework for the resolution of the problem involved in Commonwealth's complaint equity may not inquire into the dispute, notwithstanding the fact that the complaint may state a cause of action in public nuisance, traditionally cognizable in equity. Cf. Collegeville Borough v. Philadelphia Suburban Water Company, 377 Pa. 636, 105 A.2d 722 (1956).

The Commonwealth, at the instance of the Secretary of Health, complains that the burning refuse piles maintained by defendants release noxious gases to the detriment of the health and well being of the surrounding residents. The Air Pollution Control Act is designed to regulate this very problem. It defines 'air pollution' as '[t]he presence in the outdoor atmosphere of one or more contaminants in sufficient quantity and of such characteristics and duration which is injurious to human * * * life * * * or which unreasonably interferes with the comfortable enjoyment of life and property * * * throughout such areas of the Commonwealth as shall be affected thereby.' [2] Summarizing, the Department of Health is empowered, inter alia, to '[r]eceive and initiate complaints of air pollution in alleged violation of law or any rule or regulation promulgated under this act' [3] and to refer such complaints to a regional association provided for by the Act. [4] If the latter is unable to amicably resolve the problem it refers the complaint to a commission comprised of government officers, industry representatives, and experts. [5] The commission is empowered to make rules and regulations, hear and determine complaints regarding their violation, and compel compliance by judicial process. [6] Hearings are required to be held before rules and regulations may be issued, [7] and action by the commission on a complaint must 'be in the form of an adjudication * * * subject to the provisions of the Administrative Agency Law * * *' [8] Aggrieved parties have a right of appeal from any order, decision or determination of the commission in the manner provided by the Administrative Agency Law, 71 P.S. § 1710.1 et seq. [9] From the foregoing we do not hesitate to conclude that the Legislature has provided a statutory method for resolution of the alleged problem set forth in the Commonwealth's complaint, and therefore, it must be strictly pursued.

An exception to this rule is provided where pursuit of the statutory procedure, in the particular case, would cause irreparable harm. See Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 339-342, 105 A.2d 287, 297-295 (1954), Wood v. Goldvarg, 365 Pa. 92, 74 A.2d 100 (1950). The Commonwealth attempts to bring its case within this exception solely on the grounds that the statutory procedure is 'cumbersome' and 'time consuming.' Granting, for the sake of argument only, that this is so the Commonwealth has not related such fact to the necessity for short circuiting the statutory procedure in this case. The fact would be relevant only in the event that the difference between the time required by equity processes to resolve the dispute and, if appropriate alleviate the problem and the time required by the statutory framework makes pursuit of the latter irreparably damaging in the particular case. Moreover, such irreparable damage would have to appear clearly, because to short circuit the statute is to obviate the expertise and procedures which the Legislature considered necessary for the proper resolution of the difficult problems of air pollution. We cannot lightly assume that a case by case, adversary procedure is more suited to the task of conserving and balancing the interests in air use, as envisaged by the Act, than the legislative prescribed framework.

The Commonwealth places great reliance on Commonwealth ex rel. Shumaker v. New York & Pennsylvania Company, supra. There we held that the Pure Streams Act, [10] as amended, did not prohibit equity's inquiry into a complaint of a public nuisance in the nature of water pollution. It is true that there is language in that opinion which might appear applicable to this case, [11] but in Collegeville Borough v. Philadelphia Suburban Water Company, supra, we properly refused to follow its implications and limited the holding of Shumaker to its statutory grounds, saying at p. 657 of 377 Pa. at p. 732 of 105 A.2d, '[w]e think it plain that the [Shumaker] decision is based upon the express preservation of equitable jurisdiction contained in the Pure Streams Act.' The provision of the Pure Streams Act referred to and upon which Shumaker was based provides:

'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 of equity to suppress nuisances, or to abate any pollution now or hereafter existing, or enforce common law or statutory rights.' Act of June 22, 1937, P.L.1987, § 701, 35 P.S. § 691.701.

No such provision appears in the Air Pollution Control Act. Accordingly, the Shumaker case is not apposite. Moreover, the absence of such a provision, in light of the similarity of the objects of the two statutes, is a further indication that the Legisalture did not desire a dual system of dealing with air pollution.

Nevertheless, the Commonwealth contends that Section 11 of said Act has the same effect here as the statutory provision relied upon in Shumaker and quoted above. It provides:

'Nothing in this act shall limit the powers conferred upon the Department [of Health] to control and abate nuisances detrimental to the public health as are provided in section 2101 of the Administrative Code of 1929, the Act of April 9, 1929 (P.L. 177), as amended.' Act of Jan. 8, P.L. (1959) 2119, § 11, 35 P.S. § 4011.

Section 2101 of the Administrative Code of 1929 provides:

'The Department of Health shall, subject to any inconsistent provisions of this act contained, continue to exercise the powers and perform the duties by law vested in and imposed upon the said department, the former bureaus thereof, the Commissioner of Health, and the Secretary of Health.' Act of April 9, 1929, P.L. 177, § 2101, 71 P.S. § 531.

The power 'to control and abate nuisances detrimental to the public health' referred to in Section 11 of the Air Pollution Control Act and preserved by the Section 2101 of the Administrative Code is found in Section 9 of Act of April 27 1905, P.L. 312, 71 P.S. § 1404. This gives the Secretary of Health the...

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