Lead Opinion
Opinion by
On May 11, 1961, after hearing, the Sanitary Water Board of the Commonwealth ordered that: “(1) the Borough of Confluence, Somerset County, shall discontinue its discharge of untreated sewage to the Casselman River within 2 years; (2) the Borough of Confluence, Somerset County, shall take immediate steps for the construction of such sewage treatment works as may be necessary for the treatment of its sewage”.
On August 12, 1963, as a result of the apparent failure of the appellants to comply with the order, the Commonwealth on relation of the Attorney General at the instance of the Sanitary Water Board commenced
The Erie case is readily distinguishable from the present situation. In that case we were confronted with the problem of authorizing the allocation of money from a fund which was no longer in existence. Of course, under those сircumstances, a judgment in mandamus compelling the payment of moneys from a non
The appellants’ allegation that it is not financially feasible at this time for them to construct sewage treatment works is not a sufficient basis to sustain their contеntion that a judgment in mandamus would be a “futile act”. There is no indication in the pleadings that appellants have exhausted every possible avenue in an effort to find some way of financing this sewage construction. The problem of water pollution has dеeply troubled our federal and state governments for many years. In response to these problems there have been and will continue to be a number of governmental programs designed to alleviate these conditions. New methods of financing in this arеa are being developed constantly for those who heretofore have been unable to raise the necessary funds. Moreover, while we recognize that the procuring of suitable financing may be fraught with many difficulties, the appellants still have nоt demonstrated to our satisfaction that it would
The entry of a judgment in mandamus is a matter for the discretion of the court and we will not interfere with the lower court’s determination thereof in the absence of a clear abuse of discretion. Verratti v. Ridley Township,
Judgment affirmed.
Notes
The Sanitary Water Board’s order was rendered pursuant to the authority granted it under the Act of June 22, 1937, P. L. 1987, 35 P.S. §§691.201-691.210.
The failure of • appellants to comply with the order of the Board merited the intervention of the Attorney General. “The Glean Stream Law” clearly authorizes the Attorney General at the instance of the Sanitary Water Board to enforce the provisions of the Act by an action of mandamus. Act of June 22, 1937, P. L. 1987, 35 P.S. §691.210.
In the instant case appellants request us tо find an abuse of discretion by the lower court in issuing a writ of mandamus, citing the Erie case as authority for their position. On the contrary, it is sufficient to say that in Erie we merely held that the lower court did not abuse its discretion by refusing to issue a writ of mandamus. The Erie case only serves to determine what will not constitute an abuse of discretion and does not provide any authority, as appellants would have us believe, on what will constitute an abuse of discretion.
If we were to hold that financial inability is a defense to an action of mandamus, it would put our Court in the anomalous position of rendering “futile and ineffеctual” a clearly defined public policy as enunciated by the legislature in the Act of June 22, 1937, P. L. 1987, 35 P.S. §691.3. This section provides: “The discharge of sewage or industrial waste or any noxious and deleterious substances into the waters of this Commonwealth, which is or may beсome inimical and injurious to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, is hereby declared not to be a reasonable or natural use of such waters, tо be against public policy and to be a public nuisance”. Furthermore, such a result would render the courts of Pennsylvania powerless to implement this legislative determination and in effect would sanction the harmful discharge of sewage into the waters оf the Commonwealth.
Dissenting Opinion
Whether mandamus should eventually issue in this case is not the concern of this Court in the present appeal. We are asked to decide merely if granting of summary judgment was proper. The majority concludes that it was. I do not agree.
As the lower court opinion correctly notes: “Thе motion for summary judgment admits the allegations in the defendants’ answer to the complaint in mandamus and also the allegations in defendants’ answer to the motion for summary judgment. . . .” Thus, examining the allegations contained in appellants’ answer, allegations that must be аccepted as true, the following is clear. Although appellants admit that they have not yet complied with the Water Board’s order, they claim that this failure has resulted from their complete inability to raise the essential funds by any lawful means. Specifically, they aver (1) that they have no funds on hand; (2) that the Borough does not have sufficient borrowing capacity under law to raise this money; (3) that the only possible way to raise the money would be by the issuance of non-debt revenue bonds which can only be issued upon the request of the Water Board, which request has not been made; and (4) that therefore the ordered project cannot be financed at this time “in any manner.”
These allegations completely negate the majority’s statement that “[t]here is no indicatiоn in the pleadings that appellants have exhausted every possible avenue in an effort to find some way of financing this sewage construction.” Quite to the contrary, for purposes of summary judgment under these pleadings it must be assumed as true that appellants have “exhausted every possible avenue.” It thus logically follows that a sine qua non for the grant of summary judgment in this case would have to be a rule of law that complete financial inability to perform an other
Appellee frankly admits that “[i]f, in fact, the appellants are able to show beyond any doubt that . . . construction of a sewage treatment works and necеssary sewers is an absolute impossibility because they cannot borrow or obtain sufficient funds, this can be presented as a defense in a contempt proceeding to en
I realize that Commonwealth ex rel. McLaughlin v. Erie County,
It is therefore my opinion that the summary judgment below should be vacated, and that the lower court should hear this case on the merits.
I dissent.
Although, later in its opinion, the majority does declare that financial impossibility should not be a defense at all, this assertion is grounded upon the totally fallacious assumption, set out in footnote four of that opinion, that a financial impossibility defense would render the Court powerless to enforce the Act of June 22, 1937, P. D. 1987, §3, 35 P.S. §691.3, and would “sanction the harmful discharge of sewage into the waters of the Commonwealth.” (Emphasis supplied.) To allow a borough to escape the harshness of mandamus only upon a clear showing that it cannot possibly comрly with the order is certainly not a sanctioning of pollution. Somehow, the majority incorrectly assumes that as a result of this defense being available, every township, borough, city, etc., will be able to successfully assert it. Furthermore, when the majority, in this same footnоte, says that accepting appellants’ defense would “put our Court in the anomalous position of rendering ‘futile and ineffectual’ a clearly defined public policy as enunciated by the legislature. . . .” it obviously fails to realize that by calling “futile” the attempt of one borough to pay for something with funds it does not possess, no one is suggesting that it would be futile to enforce the public policy of beeping our waters clean.
The majority opinion contains similar language: “The inability of appellants tо obtain financing to plan and construct sewer facilities to abate the sewage discharge is not a defense to a mandamus action, but rather may be a factor to be considered and evaluated by the court in any proceeding by the Commonwealth to enforce the judgment.”