Township Officials Escape Jail for Failure to Implement Sewage Plan – Just Barely -- August, 2012
By: John R. Embick, Esq.
Co-Chair – Environmental Law Section
The Pennsylvania Supreme Court has reversed a Commonwealth Court decision which found several township supervisors in contempt for failing to implement the township’s official Sewage Facilities Plan (better known as a “537 Plan”), under the authority of the Pa Sewage Facilities Act, 35 P.S. 750.1, et seq. (also colloquially known as “Act 537”).
The challenged Commonwealth Court order required the incarceration of the recalcitrant township supervisors, and one remained in jail for over a month, until he resigned (the other supervisors resigned before they were incarcerated). The decision, Commonwealth, DEP v. Cromwell Township, Huntingdon County, 32 A.23d 639, 2011 Pa LEXIS 2822, issued on November 23, 2011, was authored by the now indicted and suspended Justice Orie Melvin, but her decision was joined by three justices and concurred with by three other of the jurists.
Act 537 requires municipalities to adopt and revise plans to provide sewage services to their residents. The plans must be approved by the PaDEP. The basic goal of the 537 Plan is to prevent the discharge of untreated or inadequately treated sewage into the Waters of the Commonwealth.
The procedural history of the Cromwell Township case is somewhat complicated, but can easily be summarized: Cromwell Township adopted a 537 Plan calling for the extension of a public sewer system, which the Department approved. Cromwell Township failed to implement the plan, concluding that the plan was too expensive. Cromwell Township received a number of extensions to implement the 537 Plan. Cromwell eventually reached agreement with a municipal authority to provide sewage services, and submitted a 537 Plan revision to PaDEP. The 537 Plan revision was approved by PaDEP. Cromwell Township failed to implement the plan. PaDEP ordered the Township to implement the approved plan, and the Township failed to appeal, and then refused to implement the plan (there was a municipal regime change along the way – I’m sure you understand). The Department filed an action to enforce the unappealed order before Commonwealth Court (this is where PaDEP goes to enforce its final, unappealed orders), and eventually sought fines against the township, the township supervisors, and a judgment of contempt, etc.
Here’s where the plot gets interesting. In a hearing before the Commonwealth Court, the judge, sua sponte, found the individual recalcitrant township supervisors in contempt and ordered their incarceration (PaDEP had not requested that the township supervisors be jailed; the Department only asked for fines and that a schedule be set by which the Township’s contempt could be purged).
On appeal, the Pennsylvania High Court found that Commonwealth Court had appropriate jurisdiction to receive the Department’s petition to enforce its order, and that Cromwell Township had failed to comply, and that the Department had moved appropriately for contempt sanctions in the face of continuing non-compliance.
However, the Court found that the Commonwealth Court did not use less onerous means prior to ordering the incarceration of township supervisors. Justice Orie stated:
“Our sole focus is on the propriety of the contempt sanctions imposed by Judge Quigley on the individual supervisors. “Courts possess an inherent power to enforce their orders by way of the power of contempt.” Commonwealth v. Bowden, 838 A.2d 740, 760 (Pa.2003) (quoting Brocker v. Brocker, 241 A.2d 336, 338 (Pa.1968)). While it goes without saying that the courts possess the inherent power to enforce their orders for noncompliance through imposition of penalties and sanctions, Commonwealth ex rel. Beghian v. Beghian, 184 A.2d 270 (Pa.1962), we hold that the Commonwealth Court's failure herein to utilize less restrictive means prior to imposing sentences of incarceration compels reversal.” Slip Op. at 11.
The Pennsylvania Supreme Court reversed the Commonwealth Court's order sentencing Township Board members to imprisonment, and remanded the case for further proceedings.
Given the length of the proceedings and the number of opportunities provided to the Township to achieve compliance, I conclude that Commonwealth Court Judge Quigley had reached the end of his patience after the township steadfastly refused to comply with the Department’s orders. However, the Pa Supreme Court said the township deserved one or possibly more chances before its supervisors had to go to jail. Municipal solicitors, take heed of this decision.