*1 he had been brief, assuming sole appellant’s remedy, notice, to seek an award would have been adequate given Authority part The failure on just compensation. conferring upon notice is not remedied grant adequate rights when the right, especially appellant greater developed and purchased parties, subsequently innocent who Thus, in accord- irreparably. would be harmed property, of the Commonwealth ance with the the order foregoing, reinstated, the de- reversed, and complaint Court is cree, banc, is affirmed. Case the court en as modified pro- Pleas further remanded to the Court of Common consistent herewith.7 ceedings costs. party pay Each own MANDERINO, EAGEN, J., J., participate did not C. . this case. decision of in the consideration or A.2d Pennsylvania, DEPT. OF COMMONWEALTH Carroll ENVIRONMENTAL RESOURCES al., Appellants, E. Ditzler et cases). (two CITY OF LEBANON Pennsylvania. Supreme Argued Nov. 5, 1978.

Decided Oct. damages in domain statutory eminent measure of 7. The established proceedings follows: is as compensation between consist of difference Just shall property interest entire condemnee’s fair market value immediately thereby as unaffected the condemnation and before remaining property imme- interest his and the fair market value of diately thereby, and as affected such condemnation after provided damages code. as are other 1978-79). 1-602(a) (Supp. 26 P.S. *2 Feeman, Reilly, James T. Egli, Reilly, Wolfson & *3 at appellants for No. 403. for Gen., Harrisburg, ap- Alushin, Atty. Asst.

Michael S. at No. 409. pellant Weiss, Lebanon, City of Leba- Jr., appellee, G.

Samuel non. ROBERTS, EAGEN, J., O’BRIEN, POM- and

Before C. PACKEL, and JJ. EROY, NIX, MANDERINO OPINION POMEROY, Justice. to Lebanon, began which fluori- Pennsylvania, City

The 1972, of the sought permission its water in supply date to cease (DER), Resources of Environmental Department fluoridation; By was denied. request has the legal whether the DER we are asked to determine continue with of Lebanon to City to authority compel and, if such supply its water treatment of the fluoride DER exercised exists, this case the whether in authority its We conclude abusing discretion. authority without DER statute by is vested authority that sufficient deci- agency’s and that the continued prescribe modification regard proposed permit sion with to Lebanon’s depart- of the justifiable was a reasonable and exercise ment’s statutory authority. permit of Lebanon was issued a of a operation

19701 which authorized construction for the the one then plant city replace water treatment that the water to be distribut- permit specified service. The Novem- By ed from new would be fluoridated.2 plant new On ber, plant. 1972 fluoridation was in at the practice 8, passed 1973 the Council of Lebanon January a revision approve resolution the DER to requesting as to fluoride as Lebanon’s water so eliminate to citizens of the water to be furnished component to the end that fluoridation could be discontinued. request, When DER denied the one Daemon C. Strickler to the Environ- appealed certain other citizens of the City Board,3 inter- mental and the of Lebanon Department under the 1. The was issued of Health 1, 1905, 260, Law, 22, Supply April P.L. § terms of the Act of Water Department many powers 35 P.S. 711 In 1971 Department Health of Environmental were transferred to the new Code Resources created amendment to The Administrative 1901-A, 9, 1929, A, April XIX added § 1929. Act of P.L. art. (Supp. 510-1 December P.L. No. 71 P.S. § 1978). power duty Specifically the DER was vested with Law, Supply supra, waterworks administer the Water and to issue permits. 510-1(6-7). 71 P.S. § naturally which is not Fluoride is an ion of the element fluorine form, with other found in an isolated elements, but rather in association accomplished by commonly most calcium. Fluoridation is *4 supply compound so as to the addition of a fluoride to the water part approximately one achieve a concentration of the fluoride ion of per purpose protect teeth of million. The of fluoridation is to the developing dental caries. those who drink fluoridated water from Board, Hearing same act 3. The Environmental authorized the alia, DER, with, following which is vested inter the created the functions: “(a) Hearing power and The Environmental Board shall have the adjudications hearings under its duties shall be to hold and issue (P.L. 1388), provisions the known as the of the act of June order, Law,’ any permit, Agency license or on ‘Administrative Department Resources. decision of the of Environmental Board, the dissenting, vened.4 The one member sustained as to refusing action of the DER in to alter the so of allow discontinuance fluoridation. to Court appealed

Lebanon this decision Commonwealth of and Carroll E. Ditzler interested fluorida- proponents intervene, supra, see note 4 tion, thus were allowed to The Com- bringing parties. all of the interested together order the Environmental Court reversed the of monwealth to Hearing and directed the DER to allow Lebanon Board of its water Pa.Cmwlth. supply. discontinue fluoridation “(b) Hearing continue exercise The Environmental Board shall to any power hearings adjudications heretofore to hold and issue persons, departments, boards and commis- vested in the several g., Department of the sions set forth in section 1901-A this act [e. of in this Health instance]. any any “(c) Anything contrary notwithstanding, in to the law may Department be action of Environmental Resources of the Law, initially Agency regard taken without Administrative adversely affecting any department but no action such person person person had has shall be final as to such until such opportunity Board; appeal Hear- the ing to such action to the Environmental however, provided, any final action be shall any perfected person in manner as to who not his the 1921-A, specified.” 71 P.S. 510-21. § hereinafter Adm.Code proceeding, Notwithstanding pendency Leba- the the above unilaterally February to non on resolved Council City’s supply. action This discontinue fluoridation of the prompted filing equity in of Common Pleas of a the Court bill seeking County by E. Ditzler and others Lebanon one Carroll Lebanon, enjoin proposed v. discontinuance. Ditzler County, Equity, 1974. No. Pleas of Lebanon Common parties into intervened action entered DER this stipulation according City agreed petition inter- which appeal pending vention before Environmental in the (which petition granted) agreed it not that would Board was disposition fluoridation of its water until final terminate legal questions pleas was thereafter involved. The common action discontinued. controversy stage At a of this occurred breakdown later there City’s process, plant, including the water treatment pleas specific unrepaired. decreed which went The court common performance stipulation so that fluoridation referred to above litigation. pending decree affirmed would be by This was continued 29 Pa. Ditzler Commonwealth Court. Cmwlth.

71 allocatur,6 will (1975).5 granted We 348 A.2d reverse. DER,7 in the Administra-

In creating legislature the with, among things, other charged agency tive Code Law, note 1. duty administering Supply supra the Water its title: “An act purpose by of that law is indicated State, for the preserve purity of the waters Law protection Supply health.” The Water also DER use its as to whether empowers judgment prejudicial “the source of to be not proposed supply appears The Administrative public health.” 35 P.S. 713. § in- supply, Code also water provisions concerning contains be con- cluding the no waterworks requirement may of the DER. approval structed or extended without written “stipulate Waterworks issued the DER are to permits by supplied therein the conditions under which water bemay 1918.....A(l), 510-18(1). public.” Adm.Code P.S. § § discharge Supply of its functions under the Water rules Code, Law and the the DER has issued Administrative et The term regulations. seq. 25 Pa.Code 109.1 § “water “any is defined to include and all supply” treatment, storage, transmission and distribution facilities.” 25 Pa.Code 109.1. The stated of the waterworks purpose § regulations health protect through is “to sup- proper design, operation and maintenance of water plies.” 25 the DER approval by Pa.Code 109.2. Written § required change before a water make from supplier may any affecting the treatment previously approved specifications addition, process, including the alteration or discontinuance 109.22(a-b). of any protective measure. 25 Pa.Code § Judge 5. The decision was a divided court. Wilkinson filed dissenting opinion, joined by Judges Rogers and Blatt. Act, Appellate July No. 6. Court Jurisdiction P.L. Act II, 204(a), 211.204(a) super- (Supp.1978), art. 17 P.S. since § § Code, 724(a) 724(a) seded Section of the Judicial Pa.C.S. (effective 1978). June 510-18(1). 1901-A(7), 1918-A(1), 510-1(7), 71 P.S. §§ Adm.Code §§ use, Where for the concentra- fluoridation is in standard *6 tion of fluoride in the water is established in accordance with The drinking (at mg/1). federal water standards 1.0 of these challenge validity makes no direct the that in the regulations,8 including provision any change treatment must have process of water holder is, however, DER in approval. challenge implicit Such the City’s authority disap- contention that DER without its fluoride treat- prove contemplated discontinuance of the ment.

An court’s review of an adminis appellate scope of trative kind here is narrow. agency’s challenged order of the See, e. g., Ramey Borough Pennsylvania Department Resources, Environmental 466 Pa. 351 A.2d 613 (1976); Health, 19 Crawford v. Pennsylvania Department 10, 15-17, hearings Pa.Cmwlth. Hearing City sought before the Environmental Board the establish that in water have a deleterious might fluoride effect health of the on the of the water or the potability fluoridation, consumer. on The DER and the advocates of hand, the other evidence treatment produced that fluoride decades, has been in this successfully practiced country among the incidence of dental caries significantly reducing From populace, any and without ill effects. producing our we are satisfied that examination of the record evidence the conclusion of the DER and the amply supports of do Environmental Board that the fluoridation preventing mestic water is an means of supplies important children, tooth decay, thereby protecting especially “for the power, health. the DER had Clearly, health,” regulation its protection promulgate prohibiting composition the alteration of the chemical warranted the water without its The evidence approval. required judicial 8. Courts are to take notice of the contents Code, Pennsylvania regulations published. where the referred to are 1978). (Special Pamphlet 45 Pa.C.S. concerning Board’s that actions elimination conclusion regulation.9 fluoridation fall within the of this scope the DER’s deter remaining question is whether mination that of water Lebanon should be continued was an abuse its administra suggested tive discretion. The Commonwealth Court water require by any order to continuation of fluoridation must holders, DER supply permit as sup require that all holders fluoridate their initiated plies, including municipalities which have never could, DER in the Assuming such treatment. *7 proper permit applicants exercise its all authority, require of of a water obtaining to undertake as a condition fluoridation and by not this record supply permit (a question presented regard our states have 9. We note in that the courts of sister this unanimously upheld public health as a fluoridation in the interest of police proper power. of A recent observation exercise of the states’ Supreme Jersey perspective the instant of New adds to Court dispute: clearly “Although been no harmful results from fluoridation have color, proven upon of water and it no effect taste or odor has derived, clearly proposals despite and the health benefits that are extraordinary oppo- drinking to fluoridate water have encountered generative hostility antagonism. are and forces of sition variety easily expression of not arguments. but have in a identified found contended, variously, a lack of It is that there is action; adequate statutory authority municipal if for the that even inferred, statutory authority an abusive can be fluoridation is offensive; police constitutionally power of and as exercise such is prohibits religion imposing medi- that it the free of exercise it; upon it otherwise cation those who would resist that through- personal deprivation constitutes a of liberties. The courts resisting virtually as these out the nation have been unanimous drinking arguments, upholding as other well fluoridation challenge public has water as a been health measure whenever a valid presented. unanimity appellate court . . The state holdings only by persistent regularity frequency is matched Supreme review.” with which the United States declined Somerville, Young v. Board of Health of [Citations omitted.] N.J. 293 A.2d Jersey opinion the New The decisions from other states cited in quoted among twenty from different above are included the cases appendix opin- upholding to this states fluoridation collected in the ion. not consider),10 the fact it has which we need not now render defective does not requirement such a enforced this beneficial to sanction abandonment refusal agency’s water holder whose a permit health measure elimina- fluoridation.11 Since already capable system it containing already in water component tion of the fluoride to health, refusal to arguably prejudicial would be the DER’s to be within clearly action seems such an approve discretion, to protection relative vested statutorily appellee as health, capricious, nor arbitrary and neither DER’s fluoridation sum, we conclude contends. authority over statutory of its is a exercise policy reasonable acted agency properly and that supply permits, water the formula of Lebanon to alter refusing to allow municipal fluoridating cease its water so as to supply. having presented, any argument, been none we consider

10. Nor do in this case regulations thereunder or its action that the DER’s or of the federal Equal Due Process clauses Protection or violate the state constitutions. think, is, a reasoning we pragmatic dissenters below 11. The approach justification this matter: valid of the DER’s refusing require to obtain policy “DER’s previously modify issued to and the refusal is not after it is established of fluoridation allow discontinuance inconsistent. proof Indeed, of burden of on the basis it is sound *8 alone. instance, required obtain is not when fluoridation “In the first resisting the burden permit, applicant is fluoridation a approve an unfluoridated that to be on DER to establish would water public In the prejudicial health. to the would be fluoridation, instance, requires existing permit second where therefore, and, change permit seeking applicant is prejudicial convincing is not DER that it the burden of health to remove the requirement. addition, always proper expense consideration a . . “In setting requirements is not detrimental for what is or Certainly legislation. it is are used in health as those words exercising Under proper one is discretion. when consideration insisting circumstances, on between is a vast distinction there permitting its very expense to obtain a substantial a removal after 22 in existence.” have been it and the 137-38, at 168-69. at 348 A.2d Pa.Cmwlth.

75 and the is reversed of the Commonwealth Court The order Board is reinstated. order of the Environmental NIX, in which MANDERINO, J., dissenting opinion filed J., joins. of decision

PACKEL, J., not in the participate former did this case.

APPENDIX of upholding states Decisions from other supra.) (See water. note 9 Brainerd, 308 Health v. of City

Minnesota Board of State 803, dismissed, 97 appeal 624, 429 U.S. 24, Minn. 241 N.W.2d of Health of (1976); Young v. Board 35, 50 L.Ed.2d 63 S.Ct. Somerville, 76, (1972); 293 A.2d 164 Borough of 61 N.J. McNevin, (Ky.1969); Opinion v. 439 323 Graybeal S.W.2d City Paduano v. Justices, (Del.1968); aff’d., 24 York, 531, New 718, 257 45 Misc.2d N.Y.S.2d aff’d., 17 1965), 437, (1st Dep’t 831 A.D.2d 260 N.Y.S.2d (1966), cert. 305, 875, 218 N.E.2d 339 N.Y.2d 271 N.Y.S.2d denied, 754, (1967); 674 1026, 87 17 L.Ed.2d 385 U.S. S.Ct. Gonzales, Attaya v. Town of (Ct.App.La.1966); 192 So.2d 188 v. (1966); Wilson Bates, Hall v. 511, 148 S.E.2d 345 247 S.C. Terrace, 148, 632 of Mountlake 417 P.2d City 69 Wash.2d Detroit, 408, 132 (1966); Rogowski City v. 374 Mich. Chicago, v. 30 I11.2d (1965); Schuringa City N.W.2d 16 denied, 964, (1964), cert. 85 504, 379 U.S. 198 N.E.2d 326 Eller, v. (1965); Stroupe 262 N.C. 655, L.Ed.2d 558 S.Ct. 13 of Fort Pierce City Commission 573, (1964); 138 240 S.E.2d Altenhoff, 143 v. ex rel. 879 (Ct.App.Fla.1962), State So.2d v. dismissed, (Ct.App.Fla.1963); Readey appeal 208 154 So.2d Co., County St. Louis Water (Mo.1961), 352 622 S.W.2d dismissed, 8, 20, (1962); 47 appeal 371 83 9 L.Ed.2d U.S. S.Ct. Bluffs, 162, 110 N.W.2d Wilson v. of Council 253 Iowa Fircrest, 53 Wash.2d 830, Birnel v. Town of (1961); 569 335 dismissed, 71, 4 L.Ed.2d P.2d 361 U.S. S.Ct. LaPorte, Ind. Municipal City Teeter v. (1959); Bend, Baer 206 Or. (1956); 139 N.E.2d 158 Cleveland, 163 Ohio St. Kraus v. (1956); P.2d 134 *9 76 dismissed, 935, 76 (1955), appeal

559, 351 U.S. 609 127 N.E.2d Chehalis, v. 45 Kaul 833, (1956); 100 1463 S.Ct. L.Ed. of Mil- Froncek v. 616, (1955); 277 P.2d 352 Wash.2d v. City Dowell waukee, 269 276, (1955); 69 242 N.W.2d Wis. cert. Tulsa, 273 859, (Okl.1954), 445 A.L.R.2d P.2d 43 (1955); 715 denied, 348 912, 292, 99 L.Ed. 75 U.S. S.Ct. 142, v. 859, La. 74 So.2d Shreveport, 225 Chapman 216, L.Ed. 701 dismissed, 348 892, 75 99 S.Ct. U.S. Butler, 119 Cal.App.2d 674, 260 P.2d De v. Aryan (1954); denied, 863, L.Ed. 1135 (1953) cert. , S.Ct. U.S. (1954) .

MANDERINO, Justice, dissenting. Resources of Environmental Department

I dissent. water is unsafe when drinking (DER) has never decided drinking it has ever decided it has been fluoridated nor not been fluoridated. If it had it when water is unsafe drinking water way ever decided the issue —either —all according to the or not to be treated state would have the DER did can it said that How then be DER’s decision. I would affirm Commonwealth not abuse its discretion? Court. dissenting

NIX, J., joins opinion. in this Pennsylvania COMMONWEALTH George STEVENSON. STANSHINE,

Appeal Esq. of Martin Supreme Pennsylvania.

Argued Jan. 1978.

Decided Oct. 1978.

Reargument Denied Nov.