West View Fluoridation Fought Too Late

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PRIOR HISTORY:

 [***1] 
 

 

Appeal from the Order of the Court of Common Pleas of Allegheny County in the
case of Paul W. Aitkenhead, et al. v. Borough of West View, et al., No. GD
4585-78.

DISPOSITION: Reversed. Preliminary objections sustained.

COUNSEL:
Fred E. Baxter, Jr., with him
Jane D. Ressler, Gondelman, Baxter, Mansmann and McVerry, for appellants.

Samuel G. Weiss, Jr., Weiss, Weiss
& Weiss, for appellees.

JUDGES: President Judge Crumlish, Jr. and Judges Mencer, Rogers, Blatt and Williams,
Jr. Opinion by Judge Williams, Jr. Judge Palladino did not participate in the
decision in this case.

OPINIONBY: WILLIAMS, Jr.

OPINION:

 [*215] 

 [**365]  This case comes before the Court for a decision concerning preliminary
objections to the jurisdiction of the common pleas court over an equity action
challenging the addition of
fluoride to a public water system, in accordance with a permit properly issued by the
designated state agency.

In
January, 1978, the West View Water Authority (authority) announced its
intention to begin adding
fluoride to the public water supply, under the auspices of a permit granted by the
then-Pennsylvania Department of Health, whose functions are now performed by
the Department
 [***2]  of Environmental Resources (DER).

In response to that announcement, this
suit was filed on February 28, 1978, seeking preliminary and permanent
injunctive relief to block the fluoridation. The authority filed preliminary
objections asserting that equity could not take jurisdiction because there was
an adequate and alternative remedy before DER and the Environmental Hearing
Board. Fluoridation began, as scheduled, on March 1, 1978.

In November, 1978, the common pleas court granted the preliminary injunction.
The authority promptly filed a request for a supersedeas, in which it argued
that modification of an existing water supply could not legally be effected
without permission of DER, under the provisions of the Water Supply Law. n1 The
court denied the supersedeas request, and, in

 [*216]  response to the authority’s appeal to the Commonwealth Court, issued an
additional decree, in which it
“restored from automatic supersedeas” n2 its preliminary decree. It further ordered that the prohibition against
fluoridation should remain in effect until (1) the matter was submitted to, and
dealt with, by DER, or (2) a final hearing on the matter was held in the common pleas court.

 [***3] 

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n1 Act of April 22, 1905, P.L. 260, 35 P.S.
§ 711
et seq.

n2 Pa. R.A.P. 1736(b).

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

The authority applied to DER for
permission to discontinue the fluoridation, but its application was denied by
letter of January 8, 1979. Neither the authority nor the plaintiffs in the
equity action pending before the common pleas court appealed that decision to
the Environmental Hearing Board.

In the meantime, this Court, by order of the late President Judge
Bowman, had reinstated the automatic supersedeas. The case first came before
this Court, sitting en banc, on a Motion to Dismiss the preliminary injunction
appeal for mootness. The petitioners, plaintiffs below, and appellees in this
Court, contended that the authority’s appeal was moot because the
aforementioned decision of the DER dissolved the preliminary
injunction issued by the common pleas court. The appellants argued that the
appeal was not moot, because the issuance of the preliminary injunction was
premised on the usurpation of DER’s jurisdiction by
 [***4]  the common pleas court. We held, however, that the appeal was indeed moot,
disagreeing with
“appellants’ conclusion that the court has ruled on its jurisdiction.”
Aitkenhead v. Borough of West View, 40 Pa. Commonwealth Ct. 547, 550, 397 A.2d 878, 879 (1979). We observed that although the issuance of the preliminary injunction was an
implicit or explicit conclusion

 [**366]  that the court’s jurisdiction extended to the preliminary injunction, it was
not a

 [*217]  final determination of jurisdiction by that court. We therefore remanded the
case to the Common Pleas Court for a decision on the outstanding preliminary
objections prior to a final hearing on the permanent injunction.

On May 25, 1979, the lower court issued an order denying the preliminary
objections. Since no Opinion was filed in conjunction therewith, we do not
have the benefit of the court’s
reasoning. The authority appealed to this Court, and the appellees promptly
filed a Motion to Quash the appeal as being interlocutory. We determined that
the action was appealable because the provisions of the Act of March 5, 1925,
P.L. 23,
§ 1, 12 P.S.
§ 672, pursuant to which the appeal was filed, were in effect
 [***5]  until
June 27, 1980, and the appeal was not therefore barred. n3

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n3
See The Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, No. 53,
§ 2(a) [1069], 42 P.S.
§ 20002, which applies
§ 4(b) of JARA to the
repeal of the Act of March 5, 1925, P.L. 23, 12 P.S.
§ 672
et seq. Section 4(b) of JARA states that

Repeals contained in this act which make reference to this subsection shall
take effect two years after the general effective date of this act.

 

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The Pennsylvania Supreme Court affirmed our order, and the case is presently
before this Court on the question of whether equity can take jurisdiction in
the face of a statutory administrative remedy. We find nothing in the facts or
law of this case which would cause us to deviate from the general rule that equity will not
inquire into a controversy where to do so would obviate a constitutionally
valid statutory exclusive procedure enacted by the legislature.

City of Beaver Falls v. Samuels, 272 Pa. Superior Ct. 76, 79, 414
 [***6]  A.2d 676, 678 (1979).

Appellees contend that, at the time the suit was instituted, there was
no adequate remedy at law, since

 [*218]  the time for appeal from the issuance of the permit ten years before had long
since run. Therefore, equity had jurisdiction, and once exercised, that
jurisdiction would be retained, in spite of the alternate statutory remedy
which became available when DER denied the authority’s request to discontinue
fluoridation.
Gulbenkian v. Gulbenkian, 147 F.2d 173 (2d Cir. 1945), cited by appellees in support of their
“retained jurisdiction” argument, involved a completely distinguishable procedural matter. There,
plaintiffs apparently prayed for specific performance of a contract, but later
motioned to
amend their pleading to conform to the proof, so as to secure a judgment for
damages for breach of that contract. In directing the lower court to take
evidence on the issue of damages, the Second Circuit noted that legal and
equitable claims could be joined under the Federal Rules of Civil Procedure.
Implicit in this statement is the
understanding that the district court had the jurisdiction to hear and resolve
both the legal and equitable aspects
 [***7]  of the dispute. In the case
sub judice, the alternate legal remedy is not within the jurisdiction of the common pleas
court, because it is not empowered to review a decision of DER.

In this instance, where no action had been taken
by DER since the issuance of the permit ten years before, it is not unlikely
that there was no adequate remedy at law for those individuals who, perhaps,
labored under legal infirmities ten years before, or who, perhaps, had moved
into the municipalities during the intervening years, and were unaware of the
planned change in the water
supply. Under the limited facts of this case, taking into account the
extensive lapse of time between the permit issuance and the commencement of
fluoridation, we cannot find that the common pleas court improperly exercised
its equitable jurisdiction in ordering a temporary cessation

 [*219]  of a possibly harmful undertaking until the designated
agency exercised its statutorily vested discretion, n4 reviewed information
acquired during the intervening years, and refused to allow the authority to
discontinue the fluoridation. That DER decision,

 [**367]  however, is eventually reviewable by the Commonwealth Court,

 [***8]  under the provisions of the Administrative Agency Law, 2 Pa. C.S.
§ 501
et
seq. and Chapter 15 of the Rules of Appellate Procedure, and is not reviewable
within the jurisdiction of the common pleas court. What has occurred here is
simply a request to an inappropriate forum to resolve a dispute that it is not
authorized to examine. n5

 

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –

n4
Department of Environmental Resources v. Lebanon, 482 Pa. 66, 393 A.2d 381 (1978).

n5 The administrative system of this Commonwealth would be thrown into chaos if
we were to hold that agency decisions, reviewable by law by the Commonwealth
Court, are also susceptible to collateral attack in equity in the numerous
common pleas courts.
See also, 42 Pa. C.S.
§ 763.

 

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We therefore reverse the determination of the common pleas court, and sustain
the appellant’s preliminary objections to jurisdiction in that tribunal because
(1) the appellees failed to exhaust their administrative remedy in appealing
the adverse decision of DER to the Environmental Hearing Board,

 [***9]  and (2) DER is vested by statute with the
duty to administer the Water Supply Law, and any objections to the decisions
concomitant to that administration are reviewable by appeal to the
Environmental Hearing Board, the Commonwealth Court, and the Pennsylvania
Supreme Court, but not the common pleas courts of this state.

Order

And Now, this 9th day of March, 1982, the Order of the Court of Common
Pleas of Allegheny County,

 [*220]  dated May 25, 1979, filed to No. GD 4585-78 is hereby reversed, and the
preliminary objections to jurisdiction are sustained.

Judge Palladino did not participate in the decision in this case.

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