# National Wood Preservers, Inc. v. Commonwealth Department of Environmental Resources

> Supreme Court of Pennsylvania · April 24, 1980 · 489 Pa. 221

URL: https://www.frixlaw.com/law-library/cases/9648720

## Case

- **Full name:** NATIONAL WOOD PRESERVERS, INC., Clifford Rogers and Virginia Rogers, Appellants, v. COMMONWEALTH of Pennsylvania DEPARTMENT OF ENVIRONMENTAL RESOURCES; COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Appellant, v. SHELL OIL COMPANY, Philadelphia Chewing Gum Company
- **Court:** Supreme Court of Pennsylvania
- **Decided:** April 24, 1980
- **Citations:** 489 Pa. 221; 414 A.2d 37; 10 Envtl. L. Rep. (Envtl. Law Inst.) 20724; 14 ERC (BNA) 1487; 1980 Pa. LEXIS 569
- **Precedential status:** Published
- **Opinion:** Concurrence by Flaherty
- **Judges:** Eagen, Flaherty, Larsen, Nix, O'Brien, Roberts
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FLAHERTY, Justice,
concurring.
At issue is the constitutionality of a portion of Section 316 of The Clean Streams Law, Act of July 31, 1970, P.L. 653, § 12, amending 35 P.S. § 691.316, which provides:
“Whenever the [Department of Environmental Resources] finds that pollution or a danger of pollution is resulting from a condition which exists on land in the Commonwealth the [Department] may order the landowner or occupier to correct the condition in a manner satisfactory to the [Department] . . . .”
A reading of the majority opinion might lead to the belief that we adopt the strict liability construction of Section 316 which would compel the expenditure of financial sums by an owner or occupancy of land based on no other factor but the *241 ownership or occupancy of the land. The learned late Judge Bowman, writing the opinion for the court below well set forth the law regarding this issue, and I quote that portion of the opinion:
“The police power of this Commonwealth may not be used to require a landowner ‘to abate a public nuisance existing on his land where such ownership is unrelated to the forces or conditions resulting in a public nuisance.’ Commonwealth v. Barnes & Tucker Co., 23 Pa.Cmwlth. 496, 509 , 353 A.2d 471, 478 (1976), aff’d 472 Pa. 115 , 371 A.2d 461 (1977); Commonwealth v. Wyeth Laboratories, 12 Pa.Cmwlth. 227 , 315 A.2d 648 (1974). The police power of the Commonwealth may be brought to bear upon a landowner, however, at least under the theory of common law public nuisance, notwithstanding ‘[t]he absence of facts supporting concepts of negligence, foreseeability or unlawful conduct.’ Barnes & Tucker I, supra, 455 Pa. at 414, 319 A.2d at 883.
Applying these legal principles to the facts of this case, we believe that requiring these appellants to spend the financial sums necessary to abate this condition, based solely upon their ownership or occupancy of land, would be to employee means unduly oppressive upon these individuals. We believe that such an exercise of police power would transcend ‘the parameters of reason’. We believe that EHB’s conclusion that Section 316 is a declaration of the strict liability of these appellants to correct the condition is erroneous as a matter of law because such a construction of Section 316 would permit the Commonwealth to engage in regulation which constitutes the taking of property without compensation, and hence, would be an unconstitutional exercise of police power. (emphasis supplied)
It is the duty of a court, when faced with a construction of a statute involving serious constitutional difficulties, to reject that interpretation in favor of another construction which will save its constitutionality. 2A J. Sutherland, Statutes and Statutory Construction § 45.11 (4th ed. C. *242 Sands 1973). ‘Where a statute can be given two constructions, one of which will render it constitutional and the other unconstitutional, the former construction must be invoked. Dolan v. Linton’s Lunch, 397 Pa. 114 , 152 A.2d 887 (1959); Evans v. West Norriton Two, Municipal Authority, 370 Pa. 150 , 87 A.2d 474 (1952); Fidelity Philadelphia Trust Co. v. Hines, 337 Pa. 48 , 10 A.2d 553 (1940).’ Pittsburgh Coal Co. v. Sanitary Water Board, 4 Pa. Cmwlth. 407, 424-25, 286 A.2d 459, 468 (1972), rev’d on other grounds, 452 Pa. 77 , 306 A.2d 308 (1973). See also Commonwealth v. MacDonald, supra [ 464 Pa. 435 ] at 447, 347 A.2d [290] at 297.
We believe that there is a construction of Section 316 which both comports with the law of public nuisance and renders that section constitutional as applied to the factual situation present in this case. Where the polluting condition is created by the conduct of an individual other than the owner or occupier, the owner or occupier of the land on which the condition exists cannot be liable to take corrective measures under Section 316 on the basis of the bare fact of ownership or occupancy. Such an owner or occupier can be ordered to take corrective measures, however, if he permitted or authorized the creation on his land. Such an owner or occupier can also be ordered to take corrective measures if he (1) knows or should know of the existence of the condition on the land; and (2) associates himself in some positive respect, beyond mere ownership or occupancy, with the condition after its creation. The key to imposing liability under Section 316 upon an owner or occupier for the correction of a condition which he did not create is that such an owner or occupier, after knowing of the condition, engages in some affirmative conduct indicating his adoption of the condition. Essentially, this theory of liability for owners or occupiers who do not create the condition is an application to Section 316 of the common law liability of owners or occupiers who ‘continue’ or ‘adopt’ a nuisance not created by them. See 66 C.J.S. Nuisances §§ 83-89 (1950); 58 Am.Jur.2d Nuisances §§ 48-56 (1971).”
*243 It has always been recognized that the “right” of property ownership carries with it a concurrent “obligation” which is inherent in the basic relationship of an “owner” of property to society. These “obligations, however, have always related to the use one puts to property, not mere ownership. The ancient maxim of the common law is, “Sic utere tuo ut alienum non laedus”, 9 Coke 59 — So use your own property as not to injure your neighbor. Where society requires, the property of another can be taken, but only with due compensation. To construe the subject Act as providing for strict liability, based on nothing more than the ownership or occupation of land, would be to impose on innocent individuals the burden which should be borne by society as a whole, thus, an unconstitutional taking.
I, thus, concur only in the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648720. Public record. Not legal advice.