appellant's claims not waived as it cannot be presumed that appellant knew that he had to file exceptions to preserve his right to appeal where the trial court's adjudication neither comports with the requirements of Rule 1517(a) nor indicates that it is a decree nisi
How later courts described this case
- appellant's claims not waived as it cannot be presumed that appellant knew that he had to file exceptions to preserve his right to appeal where the trial court's adjudication neither comports with the requirements of Rule 1517(a) nor indicates that it is a decree nisi
- failure to appeal to EHB from a DER order requiring township participation in regional planning rendered that order final and foreclosed any attack on its validity or content in the enforcement proceeding
- where nothing on face of order would indicate that it is anything but a final order, failure to file exceptions will be excused
- Department of Environmental Resources’ petition seeking to have municipality held in contempt of administrative order under 45 P.S. § 691.210 found to be “proper procedure.”
Written by the judges who cited it.
The opinion
POMEROY, Justice
(concurring and dissenting).
I join in part II of the Opinion of the Court and in that portion of the mandate which vacates the order of the Commonwealth Court in Appeal No. 94 and remands the case for an evidentiary hearing. For the reasons which follow, however, I am of the opinion that the Commonwealth Court erred in adjudging appellant Derry Township [Derry] in contempt for failing to comply with an order of the Department of Environmental Resources [DER]. 1 Therefore, I dissent from the Court’s affirmance of the order of the Commonwealth Court in Appeal No. 97.
*43 The Court’s affirmance of the Derry contempt order is predicated on the notion that § 203(b) of the Clean Streams Law, Act of June 22, 1987, P.L. 1987, as amended, 35 P.S. § 691.203(b) [hereinafter “The Act”] invests “DER [with] the statutory authority to issue [an] order requiring agreement concerning the regionalization of Authority’s sewage treatment plant.” Opinion of the Court at 5 (emphasis added). In my view, § 203(b) will not bear such a construction.
Section 203(b) of the Act, 35 P.S. § 691.203(b) provides that DER may order municipalities, inter alia, “to negotiate with other municipalities for combined or joint sewer systems or treatment facilities.” It does not authorize an order such as was entered in this case, requiring municipalities actually to agree on such systems or facilities, and I fail to see how it could properly do so; by definition an agreement must be volitional. The orders of the Department dated September 10, 1971 and June 19, 1971 directing Derry Township to negotiate “and enter into agreement with” the Latrobe Municipal Authority and the other municipalities involved in these proceedings was, therefore, in my opinion, beyond the power of the Department to prescribe. 2 Such a mandate could mean, at most, that Derry must in good faith use its best efforts to reach agreement. There is no finding that the Township has not done so. 3 To hold it in con *44 tempt for failure to agree, therefore, was not justified on this record 4 and the order to that effect should be vacated. 5
MANDERINO, J., joins in this concurring and dissenting opinion.
. Derry had been ordered to negotiate and agree with surrounding municipalities for the regionalization of a sewage treatment plant. Derry was adjudged to be in contempt when it failed to acquiesce in a proposed agreement.
. In contrast, the order of the hearing judge entered July 31, 1972, initially finding Derry Township to be in contempt, requires only that Derry Township enter into “diligent negotiation” with the Authority “to reach the required agreement.” (R. 169a).
. The master’s report, filed September 7, 1972, observed (R. 181a) that “diligent negotiations” had failed to produce an agreement between Derry and the Authority. He also stated that “[t]he Court has no power to compel the execution of an agreement . ,” but recommended “that the Court exercise its contempt powers to implement the declared policy and objectives of the Clear Streams Law.” (Ibid.)
. The Court below in its opinion considered that the failure of Derry to appeal from the Department’s order of September 10, 1971, combined with the fact that no agreement was reached, placed it “automatically in contempt.” (R. 274a). In light of the nature of the problem I am unable to agree with this conclusion. An order which is ultra vires does not become viable for want of an appeal. It is to be noted, moreover, that the question of power to compel agreement was raised in the proceeding before the master held pursuant to the hearing judge’s order of July 31, 1972, see n. 2 supra. The instant appeal embraces that order, among others.
. In the instant case, application was made to the Commonwealth Court for the purpose oí seeking an adjudication of contempt. Accordingly, I agree with the Court that the action was properly initiated by application pursuant to § 210 of the Act, 35 P.S. § 691.210, and that, therefore compliance with Rule 1007 of our Rules of Civil Procedure was not necessary. See Pennsylvania Crime Commission Petitions, 446 Pa. 152 , 285 A.2d 494 (1971). I cannot agree, however, with the Court’s statement that § 210 similarly authorizes application to a court without compliance with Rule 1007 for the simple enforcement of an administrative order. By its express language § 210 only authorizes application to a court for the purpose of seeking a contempt citation against a noncomplying municipality: “If the corporate authorities fail to proceed diligently . . the corporate authorities shall be guilty of contempt and shall be punished by the court in an appropriate manner and, for this purpose, application may be made by the Attorney General to the Commonwealth Court.” 35 P.S. § 691.210 (emphasis added): Furthermore, to construe § 210 in such a fashion as to authorize the initiation of enforcement actions by application pursuant to § 210 is to ignore the Act’s express statutory enforcement scheme. § 610 of the Act, 35 P.S. § 691.610 declares any failure to comply with a DER enforcement order to be a nuisance. In turn, § 601, 35 P.S. § 691.601, provides that “[a]ny activity or condition declared by this act to be a nuisance, shall be abateable in the manner provided by law or equity for the abatement of public nuisances.” Reading these two sections together, it would seem that the Act contemplates that actions to enforce DER orders should be maintained as actions to abate a nuisance. As such they should be commenced by a praecipe for a writ of summons, a complaint, or an agreement for an amicable action as prescribed by Rule 1007 of our Rules of Civil Procedure.. But see Commonwealth v. Washington Township, Pa., 344 A.2d 457 (1975).