64 Pa. Commw. 160 | Pa. Commw. Ct. | 1982
Opinion bt
Highway Auto Service (Highway Auto) appeals from an order of the Environmental Hearing Board (EHB) dismissing as moot its appeal from an order of the Department of Environmental Resources (DER).
Employees of the DER on July 29, 1979 detected a continuing discharge of an oily substance into the Susquehanna River from a portal known as the Butler
On August 3, 1979, pursuant to Section 610 of the Clean Streams Act,
During a supersedeas hearing before the EHB, the parties agreed to a stipulation which permitted Highway Auto to reopen if: (1) an interim sewage system were installed; (2) an application for an acceptable sewage system were submitted to the DER; (3) oil waste products were disposed of properly; and (4) the subsurface pipes leading to the borehole were sealed. Highway Auto complied with the terms of this agreement and reopened for business on August 16,1979.
A hearing on the merits of the DER order was held before the EHB on October 18, 1979. On Janu
In its appeal to the EHB, Highway Auto attacked the part of the DER order which required Highway Auto to cease doing business until a permanent sewage system were installed as illegal because it was arbitrary and capricious in that it orders Highway Auto to take action beyond what is necessary to correct the alleged violation. Highway Auto also attacked the DER order as being vague. Highway Auto does not here attack that part of the DER order which requires the installation of a permanent sewage system. It contends that its appeal was not moot because it still faces the possibility of a DER imposed shutdown of its business prior to the completion of a permanent sewage system.
It is the settled law of this Commonwwealth that if at any stage of the judicial process a case is rendered moot it will be dismissed. Glen Alden Coal Co. v. Anthracite Miners of Pennsylvania, 319 Pa. 192, 179 A. 446 (1935), Temple University v. Pennsylvania Department of Public Welfare, 30 Pa. Commonwealth Ct. 595, 374 A.2d 991 (1977). A case wall not be dismissed as moot merely because the allegedly illegal conduct has been stopped voluntarily. In determining whether the cessation of such activity compels a finding of mootness, we consider (1) the good faith of the defendant’s announced intention to discontinue the challenged activity, (2) the effectiveness of the discontinuance, and (3) the character of the past violation. Allen v. Colautti, 53 Pa. Commonwealth Ct.
Here the alleged illegal activity was DEE’s order closing Highway Auto’s business premises. In the course of the ensuing litigation the parties stipulated a settlement and Highway Auto reopened. Highway Auto alleges no- breach of the terms of settlement by DEE, nor any threat on DEE’s part again to close the business. Indeed, we are told that Highway Auto’s plans for a permanent sewage system have been approved and that as of some months ago the system was under construction. We agree with EHB that there was nothing Highway Auto required at the hands of EHB.
Order affirmed.
Order
And Now, this 19th day of January, 1982, the order of the Environmental Hearing Board is affirmed.
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §691.1 et seq., 35 P.S. §691.610.
Highway Auto contends that EHB was without the power to dismiss an appeal as moot. This is contrary to existing case law. See Silver Spring Township v. Department of Environmental Resources, 28 Pa. Commonwealth Ct. 302, 386 A.2d 866 (1977).