Township of Elizabeth v. Power Maintenance Corp.

417 A.2d 1285, 53 Pa. Commw. 270, 1980 Pa. Commw. LEXIS 1667
CourtCommonwealth Court of Pennsylvania
DecidedJuly 28, 1980
DocketAppeal, No. 1946 C.D. 1979
StatusPublished
Cited by1 cases

This text of 417 A.2d 1285 (Township of Elizabeth v. Power Maintenance Corp.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Township of Elizabeth v. Power Maintenance Corp., 417 A.2d 1285, 53 Pa. Commw. 270, 1980 Pa. Commw. LEXIS 1667 (Pa. Ct. App. 1980).

Opinion

Opinion by

Judge MacPhail,

Elizabeth Township (Township) filed a complaint in equity before the Court of Common Pleas of Allegheny County seeking to enjoin the hauling of flyash, a waste product from the Elrama Power Station of Duquesne Light Company, through a residential area to a landfill in the township. The hauling is done by Power Maintenance corporation (Power Maintenance), one of three defendants named in the eomplaint. A second defendant is Municipal Industrial [272]*272Disposal Company, which operates the landfill to which the flyash is hauled. The third defendant, Allegheny County, owns and is responsible for the upkeep of Broadlawn Drive, the road over which the hauling is done.

The complaint alleges that the hauling of flyash through a residential neighborhood constitutes a public nuisance because great quantities of dust are created thereby and make it difficult for residents of the area to breathe. This is asserted as a danger to the health of these residents. Further, it is alleged that the extreme weight of the flyash hauled is causing damage to the road and causes mud and other debris to be deposited on the road. The complaint also alleges a “de facto rezoning” of the area in that the use by Power Maintenance has transformed a residential area into a commercial area.

All defendants filed preliminary objections to the complaint. The preliminary objection of Allegheny County in the nature of a demurrer was sustained by the lower court. Defendant Municipal Industrial Disposal Company’s motion for a more specific pleading was granted. Both Municipal Industrial Disposal Company and Power Maintenance filed preliminary objections challenging the jurisdiction of the Court of Common Pleas and asserting the failure of the Township to exhaust a statutory remedy. These objections were overruled by the lower court. Power Maintenance has appealed to this Court from the order overruling its preliminary objection challenging jurisdiction.1 We reverse.

[273]*273The learned trial judge addressed the issue of exhaustion of remedies,2 but did not specifically deal with the jurisdiction issue in light of the Act of March 21, 1806, P.L. 558, formerly 46 P.S. §156, repealed by the Act of December 6, 1972, P.L. 1339. A similar provision is now found in Section 1504 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1504 (Act of 1806) and provides that

In all cases where a remedy is provided or a duty is enjoined or anything is directed to be done by any statute, the directions of the statute shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect.

This Legislative pronouncement embodies the Pennsylvania version of the federal concept of primary jurisdiction. Primary jurisdiction is, in essence, a doctrine of judicial restraint and provides that, where a court determines that an administrative agency should [274]*274make the initial determination in a case (i.e. has primary jurisdiction), the court will not decide the issues presented by the case, but will defer to the agency. 3K. Davis, Administrative Law Treatise §1901 (1958).

The Pennsylvania courts, pursuant to the clear Legislative intent expressed in the Act of 1806, have given a broad interpretation to that statute. Hence, the Supreme Court of Pennsylvania stated, in a factually similar if temporally remote case, “[t]he powers of control or regulation, or whatever authority the court may, in other days, have possessed over these concerns, are supplanted by the Public Service Commission.” Fogelsville & Trexlertown Electric Co. v. Pennsylvania Power & Light Co., 271 Pa. 237, 114 A. 822 (1921).

The wisdom of the Act of 1806 was recognized more recently in Commonwealth v. Glen Alden Corp., 418 Pa. 57, 210 A.2d 256 (1965), where the Secretary of Health sought an order in equity to compel removal of burning coal refuse piles, which were claimed to constitute a public nuisance.

The court held that the Air Pollution Control Act, Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. §4001 et seq., provided a statutory procedure to deal with the exact problem sought to be remedied in equity and, therefore, that the statutory remedy must be strictly pursued. The only exception to the rule that equity has no power to act where a statutory remedy is provided is where pursuit of the statutory remedy would cause irreparable harm. Id.3

Power Maintenance contends that because of the Act of 1806, equity lacks subject matter jurisdiction [275]*275over the instant controversy. Both Power Maintenance and Municipal Industrial Disposal Company operate pursuant to permits issued by the Department of Environmental Resources (DER) under the Pennsylvania Solid Waste Management Act (Act), Act of July 31, 1968, P.L. 788, 35 P.S. §6001 et seq. and, therefore, if the activity recited by the complaint constitutes a nuisance, DER has sole jurisdiction to enjoin the activity. On the basis of this argument, Power Maintenance brings this appeal pursuant to the Act of March 5, 1925,4 which provides that, where a preliminary objection challenges the jurisdiction of a court, the general rule that appeals from orders denying preliminary objections are interlocutory will not apply. Haddington Leadership Organization, Inc. v. Sherman, 8 Pa. Commonwealth Ct. 309, 302 A.2d 919 (1973). The sole issue before us is whether the court below had jurisdiction over the subject matter of the action. Sperry & Hutchinson Co. v. O’Connor, 488 Pa. 340, 412 A.2d 539 (1980).

The rule has developed in Pennsylvania jurisprudence that, where the Legislature has provided an exclusive method of resolving a controversy, the courts of common pleas have no power to enter into the inquiry and an issue appealable under the Act of 1925 is raised. Hoover v. Bucks County Tax Claim Bureau, 44 Pa. Commonwealth Ct. 529, 405 A.2d 562 (1979). We must analyze the Act, therefore, to determine whether the statutory remedy provided is meant to be exclusive.

Before we turn to the Act itself, we deem it useful to briefly trace the path taken by the Air Pollution [276]*276Control Act following the decision in Glen Alden, supra.

Section 11 of the Air Pollution Control Act was amended by Section 1 of the Act of January 24, 1966, P.L. (1965) 1520 to clarify the specific right of the Secretary of Health (now DER)5 to seek abatement of a public nuisance by an action in equity.

Section 12.1 was added to the Air Pollution Control Act by Section 8 of the Act of June 12, 1968, P.L. 163, was repealed by Section 11-1 of the Act of October 26, 1972, P.L. 989, and a similar provision is now found in Section 12.1 of the Air Pollution Control Act, added by Section 11.2 of the Act of October 26, 1972, P.L. 989, 35 P.S.

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417 A.2d 1285, 53 Pa. Commw. 270, 1980 Pa. Commw. LEXIS 1667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/township-of-elizabeth-v-power-maintenance-corp-pacommwct-1980.