Harris-Walsh, Inc. v. Borough of Dickson City

Decision Date17 January 1966
Citation216 A.2d 329,420 Pa. 259
PartiesHARRIS-WALSH, INC. and Parmoff Corporation and Moffat Coal Company v. BOROUGH OF DICKSON CITY, Appellant.
CourtPennsylvania Supreme Court

John E. V. Pieski, Scranton, for appellant.

Morey M. Myers, Gelb, Carey & Myers, Scranton, for Harris-Walsh Inc.

William J. Oliver, Oliver, Price & Rhodes, Scranton for Parmoff Corp. and Moffat Coal Co., Inc.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN O'BRIEN and ROBERTS, JJ.

JONES, Justice.

This appeal involves a challenge, successful in the court below, to the validity of a borough ordinance which seeks to regulate, within the territorial limits of the borough, the future mining of anthracite coal by the strip mine method.

Since 1950, Harris-Walsh, Inc., [Harris-Walsh], has been engaged in the removal of anthracite coal [1] by strip mining within the limits of the Borough of Dickson City, [Borough], Lackawanna County. On June 28, 1963, the Borough adopted an ordinance, later amended on December 17, 1963, regulating future strip mining operations within the Borough limits. In accordance with the provisions of Section 5 of this ordinance, the Borough, by resolution on February 10, 1964, required that Harris-Walsh furnish a bond in the amount of $80,666 on or before February 17, 1964. [2]

On February 18, 1964, Harris-Walsh, averring that the ordinance was 'illegal, unlawful and unconstitutional' for seventeen stated reasons and that it had been advised that, if the required bond was not posted, the Borough would invoke the ordinanceprovided criminal penalties, instituted an equity action in the Court of Common Pleas of Lackawanna County against the Borough and requested a preliminary injunction. The court preliminarily restrained the Borough from enforcing the ordinance against Harris-Walsh. Thereafter, various hearings were held and, on October 5, 1964, the court entered a decree nisi which held the ordinance invalid and permanently enjoined the Borough from its enforcement. Thereafter, the Commonwealth of Pennsylvania was permitted to intervene. [3] On March 10, 1965, the court dismissed exceptions to its decree nisi and entered a final decree from which the Borough now appeals.

Initially, we must consider whether the court below, sitting as a court of equity, had jurisdiction to entertain this action to restrain the enforcement of this ordinance. Although none of the parties to this action question equity's jurisdiction--in fact, the parties agree equity has jurisdiction--nevertheless, it is our duty to inquire into the existence of jurisdiction. We have recently said: 'Jurisdiction can be raised at any time, even at the appellate level and by the appellate court itself. [Citing authorities.]' (Emphasis supplied.) Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 185, 199 A.2d 430, 432.

If at law there exists a remedy, complete and adequate in nature, equity will not assume jurisdiction; absent such a remedy, equity may act. A remedy at law may be provided under the statute or the ordinance the validity of which is attacked, but, unless such statute or ordinance provides a remedy adequate 'to the task of resolving plaintiff's objections,' the mere existence of such remedy will not preclude the assumption of equitable jurisdiction. Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, 451, 452, 211 A.2d 532.

In the case at bar, does an adequate remedy at law exist? The only section of this ordinance which might be construed as remedy-providing is Section 8 which provides criminal penalties [4] for violation of the ordinance but such remedy, which would require subjection to a criminal prosecution, is not of such adequacy as to oust equity of jurisdiction. [5] No other remedy would be available to adequately meet this challenge to the validity of the ordinance. [6]

By way of contrast, recently in Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, 211 A.2d 532 supra, a group of strip mine operators instituted an action in equity which challenged the validity of a county zoning ordinance which, inter alia, purported to regulate strip mining within the territorial limits of the county. In Bliss, both the zoning ordinance and the enabling statute provided administrative and judicial procedures sufficient to adequately determine all possible questions raised by the strip mine operators; we, therefore, held equity lacked jurisdiction to entertain that action. Unlike Bliss, the instant ordinance provides no such adequate remedy; therefore, equity does have jurisdiction [7] to entertain this action.

Two questions the Borough presents on this appeal: (1) has the Commonwealth of Pennsylvania preempted the field of regulation of strip mining of anthracite coal so as to prohibit the enactment by the Borough of this strip mine ordinance? (2) did the chancellor err in excluding evidence as to relative conditions relating to the backfill of stripping pits within and without the Borough?

Although the mining of anthracite coal by the strip mine method has been in progress for many years, it was not until 1947 that the legislature took steps to protect the public's interests by a regulation of such industry. In the meantime the strip mining of anthracite coal had created in the anthracite coal field in Northeastern Pennsylvania an intolerable situation. In disregard of the interests of the public, the strip mine operators scarred and defaced the region, removed the overburden from the coal and piled it in huge and unsightly refuse banks which constituted potential fire hazards, created holes, open pits and huge craters in the terrain which were left unfilled and in such condition as to constitute potentially dangerous traps for unwary children and adults, converted vast areas of scenic beauty into unsightly and ugly surroundings and even conducted their mining operations in close proximity to the yards and homes of the public: in short, these operators created a situation which adversely affected the properties, the safety and the general welfare of the public in the area. The complete indifference of government on the state level to the creation and existence of this intolerable situation up until 1947 is beyond understanding; even now, the condition remains but slightly alleviated.

Prior to 1947, the only legislative stop taken in connection with strip mining was the passage of a statute in 1941; the purpose of that statute was to protect 'the health and safety of persons employed' in stripping operations in both the anthracite and bituminous coal fields; this statute did not, nor did it purport to, regulare the operation of the industry. [8] On June 27, 1947, the 'Anthracite Strip Mining Law' was passed (Act of June 27, 1947, P.L. 1095, § 1 et seq., 52 P.S. § 681.1 et seq.). Its stated purpose was as 'an exercise of the police power to provide for the improvement and conservation of lands affected by the mining of anthracite coal by the open pit or strip mining method; to prevent the combustion of such coal and the pollution of rivers and streams and improve the use and enjoyment of such lands; to preserve the value of such lands for taxation to decrease and prevent soil erosion and aid in the protection of game and wild life; and generally to provide for the public safety, health and general welfare.' (Act of 1947, supra, § 1, 52 P.S. § 681.1). [9]

The 1947 statute included provisions providing for the issuance of permits to, and the filing of bonds by, strip mine operators, blasting, back-filling, fire prevention, drainage, replanting of stripped areas and the locations of operations in relation to highways, homes and public buildings and was applicable to all strip mining operations in the anthracite coal field.

On August 13, 1963, the legislature extensively revised and amended the 1947 statute and amendments thereto by a statute entitled the 'Anthracite Strip Mining and Conservation Act' (Act of August 13, 1963, P.L. 781, § 1, et seq., 52 P.S. § 681.1 et seq.). The stated purpose of this statute was 'the regulation of mining of anthracite coal by the open pit or strip mining method and for the conservation and improvement of lands affected directly or indirectly by such mining; requiring operators to be licensed, to pay license fees, to secure permits to engage in strip mining and to file bonds conditioned for compliance with this act; requiring backfilling of stripping pits and leveling and planting lands affected to prevent erosion and the pollution of waters and to protect public health, safety and welfare; conferring powers and imposing duties upon the Department of Mines and Mineral Industries; providing for appeals, and imposing penalties, and making appropriations.'

The thrust of the Borough's contention is that, even though it has enacted legislation dealing with the regulation of anthracite coal strip mining, the Commonwealth has not preempted the field to the exclusion of legislative action in such field by political subdivisions, such as the Borough. The court below held that the Commonwealth has preempted the field. The validity of that ruling must now be determined.

In a landmark case, Western Pennsylvania Restaurant Association v. City of Pittsburgh, 366 Pa. 374, 380, 381, 77 A.2d 616, 619 this Court, speaking through Mr. Justice (later Chief Justice) Stern, enunciated the appropriate criteria for determining whether the Commonwealth, to the exclusion of its political subdivisions, has preempted by legislation the regulation of certain activities: '(1) There are statutes which expressly provide that nothing contained therein should be construed as prohibiting municipalities from adopting appropriate ordinances, not inconsistent with the provisions of the act or the rules and...

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