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HomeMy WebLinkAbout99-3121 equityCOMMONWEALTH OF PA., DEPT. OF TRANSPORTATION, Plaintiff TROY BEAM, Defendant ' IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION-LAW · · NO. 99-3121 · IN EQUITY IN RE: PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION BEFORE HESS, J_. ORDER AND NOW, this I~' day of August, 1999, the request of the plaintiff, Pennsylvania Department of Transportation, for a preliminary injunction is DENIED. BY THE COURT: Steven I. Roth, Esquire For the Plaintiff Lee Alan Stivale, Esquire For the Defendant K,e~n/ A. Hess, J. :rlm COMMONWEALTH OF PA., DEPT. OF TRANSPORTATION, Plaintiff TROY BEAM, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·CIVIL ACTION-LAW · NO. 99-3121 · 1N EQUITY IN RE' PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION BEFORE HESS, J_. OPINION AND ORDER Plaintiff, the Pennsylvania Department of Transportation (hereinafter "PennDOT") has filed a suit in equity to enjoin defendant, Troy Beam, from taking off and landing his private airplane on his property in Hopewell Township, Cumberland County. Pending before the court is the plaintiff' s request for a preliminary injunction. Plaintiff alleges that defendant has continually violated the Pennsylvania Aviation Code by taking off from and landing at said property without procuring a license to maintain and operate an airport from the Bureau of Aviation of PennDOT. While defendant admits that he does frequently take off and land at the Hopewell Township property, defendant takes the position that no statutory violation has occurred, because the property is not an "airport" for purposes of the definition set forth in 74 Pa.C.S.A. 5102. Furthermore, defendant contends that plaintiff' s right to relief is not clear because PennDOT lacks authority to enforce the licensing requirement through petition for a preliminary injunction. 99-3121 EQUITY Section 5301 (a) of the Aviation Code gives PennDOT authority to "promulgate and enforce regulations" in order to "execute... laws relating to aviation, airports and air safety within this Commonwealth." 74 Pa.C.S.A. 5301(a). Further, section 5301(b)(1) expressly grants authority to PennDOT to "provide for the examination, rating and licensing of airports." 74 Pa.C.S.A. 5301(b)(1). Pursuant to the authority granted by the General Assembly, PennDOT enacted a regulation for the licensing of airports that provides in pertinent part: "No person may establish, maintain or operate an airport, nor conduct flight operations at an airport, "~ 67 Pa. Code Section 471.3(a). unless authorized to do so by the Bureau. The Aviation Code defines "airport" as' any area of land or water which is used, or intended to be used, for the landing and takeoff of aircraft and any appurtenant areas which are used, or intended to be used, for airport buildings or air navigation facilities or rights-of-way, together with all airport buildings and facilities thereon. Unless indicated otherwise, airport shall include heliports and public airports. 74 Pa.C.S.A. 5102. In determining if injunctive relief is proper, this court must, of course, decide the issue of whether the Hopewell Township property from which defendant takes off and lands satisfies the statutory definition of "airport" as set forth by the General Assembly. The defendant's contention is that the last sentence in the definition excludes private airports not open to the public unless the legislature indicates otherwise. We cannot accept such an interpretation. ~ With the exception of emergency conditions, authority to establish, maintain or operate an airport, or conduct flight operations at an airport comes in the form of written authorization from the Bureau of Aviation of PennDOT. 67 Pa. Code § 471.3(b). 99-3121 EQUITY The Statutory Construction Act provides that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S.A. 1921 (a). In doing so, courts may presume "[t]hat the General Assembly does not intend a result that is absurd..." 1 Pa.C.S.A. 1922(1). By defining "airport" as "[a]ny area of land or water which is used, or intended to be used, for the landing and takeoff of aircraft...," the General Assembly has made its intent quite clear that an "airport" exists for purposes of the definition if any area of land or water is being used for the landing or takeoff of aircraft. 74 Pa.C.S.A. 5102. It is equally clear that the final sentence was added merely to clarify and emphasize the General Assembly's intent to include public airports and heliports in the definition of "airport." The defendant in this case takes off and lands from property that is neither a public airport nor a heliport. It is, however, an "area of land or water which is used... for the landing and takeoff of aircraft..." 74 Pa.C.S.A. 5102. Therefore, such property satisfies the statutory definition of"airport" in the Aviation Code. A preliminary injunction is proper when the moving party establishes the following' 1) that relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; 2) that greater injury will occur from refusing the injunction than from granting it; 3) that the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; 4) that the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and 5) that the plaintiff' s right to relief is clear..." Lewis v. City of Harrisburg, 158 Pa. Cmwlth. 318,631 A.2d 807, 810 (1993). 99-3121 EQUITY "Because the grant of a preliminary injunction is a harsh and extraordinary remedy, it is to be granted only when and if each criteria has been fully and completely established." _League of Women Voters of Pennsylvania v. Commonwealth, 683 A.2d 685,688 (Pa. Cmwlth. 1996) (emphasis added). We deal with the criteria seriatim. 1) Relief is necessary to prevent immediate and irreparable harm. When a certain activity is proscribed by statute, a court need only make a determination that the illegal activity occurred to find that immediate and irreparable harm has occurred. Commonwealth v. Coward., 489 Pa. 327, 341, 414 A.2d 91, 98 (1980). Defendant has violated 67 Pa. Code 471.3(a), a regulation promulgated through authority delegated to Penn DOT by the General Assembly, by maintaining an "airport" and conducting flight operations from that airport without authorization (through licensing) from the Bureau of Aviation. By virtue of these actions, the defendant has created immediate and irreparable harm per se. 2) Greater iniury will occur from refusing the injunction than from granting it. "When the Legislature declares certain conduct to be unlawful it is tantamount in law to calling it injurious to the public." Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 406, 52 A.2d 317, 321 (Pa. 1947). Moreover, [W]hen relevant, courts must consider the possibility of harm to other interested parties and the public interest in determining whether to grant requests for preliminary injunctions." Gueson v. Reed, 679 A.2d 284, 288 (Pa. Cmwlth 1996). 99-3121 EQUITY Again, in the case sub judice, defendant is maintaining an "airport" and conducting flight operations from the same without the requisite authorization. The failure of defendant to comply with PennDOT regulations made pursuant to section 5301 of the aviation code is "tantamount" to conduct by defendant that is injurious to the public.2 3) The injunction will return the parties to the status quo. In Pennsylvania, the status quo which is to be preserved by a preliminary injunction is the "last actual, peaceable [and we may add, lawful] noncontested status which preceded the pending controversy." Pennsylvania Public Utility Commission., 356 Pa. 400, 407, 52 A.2d 317, 321 (Pa. 1947) (quoting Commonwealth v. Cohen, 150 Pa. Super. 487, 489, 28 A.2d 723,724 (1942) ). Since we have determined that the defendant maintained and operated and continues to maintain and operate an airport in violation of PennDOT airport licensing regulations, the last lawful, noncontested status that the parties to this action enjoyed occurred when the defendant was not maintaining and operating an airport for the purposes of the definition set forth in Section 5102 of the Aviation Code. 4) The alleged wrong is manifest, and the iniunction is reasonably suited to abate it. A preliminary injunction will generally not be granted unless the wrong is manifest. Singzon v. Commonwealth, Department of Public Welfare, 496 Pa. 8, 11,436 2 We would be remiss, however, if we did not note the defendant's contention that there appears to be no actual physical danger to the public. The defendant is an experienced pilot. Many of his neighbors appeared and testified that the proximity of the airport has not harmed them in any way. 99-3121 EQUITY A.2d 125, 127 (Pa. 1981). Because the defendant in this case is operating and maintaining an airport without authorization from the Bureau of Aviation, he is clearly in violation of 67 Pa. Code 471.3(a). Thus, the wrong is manifest. Further, the wrong would be reasonably abated if defendant were enjoined from conducting flight operations on the property in Hopewell Township, Cumberland County. 5) Plaintiff must establish a clear right to relief. For a preliminary injunction to be granted, it is required that the plaintiff establish a clear right to relief. Lewis v. City of Harrisburg, 158 Pa. Cmwlth. 318, 324, 631 A.2d 807, 810 (1993). It goes without saying that this includes the question of whether or not the remedy sought by the plaintiff is proper. Surprisingly, or perhaps incredibly, neither the Aviation Code nor the regulations promulgated pursuant to it contain any enforcement mechanism against the operation of an airport without a license. There are some sanctions for regulatory violations which call for the suspension or revocation of licenses to operate airports. 67 Pa. Code 471.8. No provision, however, appears to have been made for the failure to obtain a license. We have been unable to locate any other body of law wherein regulatory power has been delegated without a concomitant enforcement mechanism. Even a cursory review of the regulation of other activities reveals the unusual nature of this omission in the Aviation Code. The sale of liquor and malt beverages, for example, is regulated in the Commonwealth of Pennsylvania. The Liquor Code contains detailed penalties including fines for selling liquor without a license. 99-3121 EQUITY There are also bodies of law in which resort to the courts of equity is expressly permitted. Such is the case in zoning matters.3 In Board of Supervisors of West Brandywine Township v. Matlack, 38 Pa. Cmwlth. 366, 368, 394 A.2d 639, 641 (1978), for example, the court held that the Common Pleas court had equity jurisdiction over an action by a municipality to enjoin further expansion of a nonconforming use. As the court noted: "[I]t is clear appellant's challenge to the trial court's equity jurisdiction is without merit since Section 617 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 10617, expressly empowers municipalities to seek equitable relief to restrain violations of their zoning ordinances." (emphasis added) Id. at 641. Likewise, in Babin v. City of Lancaste..r., 89 Pa. Cmwlth. 527, 533,493 A.2d 141,144 (1985), the court held that a municipality may seek equitable relief to enforce the conditions of a special exception ordinance. The court stated that section 10617 of the Municipal Planning Code... "clearly empowers municipalities to seek equitable relief to restrain violations of their zoning ordinances ..." (emphasis added). Id__:. at 144. Indeed, Section 10617 expressly delegates authority to governing bodies or their officers with permission from the governing bodies to"... institute any appropriate action or proceeding..." to prevent violations of zoning ordinances enacted under the Municipal Planning Code Act or prior enabling laws. 53 Pa. C.S.A. 10617. 3 Other statutes which expressly authorize the intervention of courts of equity include intervention in teacher strikes pursuant to the Public Employee Relations Act, 43 P.S. 1101.1003. See Carrol v. Ringgold Education Association, 545 Pa. 192, 680 A.2d 1137 (Pa. 1996); enforcement of provisions of the Funeral Directors Law, 63 P.S. 479.12, Keystone Funeral Directors Assn. v. Calvary Cemetery Assn., 429 Pa. Super. 385,632 A.2d 909 (1993); limited equity power under the Labor Anti-Injunction Act, 43 P.S. 206(d). See Phar-mor Inc. v. United Food and Commercial Workers Union, 541 Pa. 49, 660 A.2d 583 (1995); Broad enforcement powers available to DER under 35 P.S. 6018.607 of the Solid Waste Management Act, see Commonwealth v. Parker While Metal Co..., 512 Pa. 74, 515 A.2d 1358 (1986). We could go on. 99-3121 EQUITY We are aware of the well-established principle that equity jurisdiction will attach where there is no remedy at law. Moreover, even if there exists a legal or statutory remedy, equity jurisdiction may, nonetheless, be invoked if the remedy is not adequate. Hill v. Nationwide Insurance Co., 391 Pa. Super. 184, 187-188, 570 A.2d 574, 575 (1990). We have found no case, however, which construes the term "remedy" to mean the enforcement, by a government agency, of its own regulations. The question then becomes whether the courts are entitled to infer an enforcement power from legislative silence on the matter. At least two cases have held that even where the legislature has expressly allowed for injunctive relief, a trial court errs when it attempts to grant relief which is beyond that authorized by statute. See Bums v. Consol Pa. Coal Co., 431 Pa. Super. 262, 636 A.2d 642 (1994); Carroll v. Ringgold Education Association.., 655 A.2d 613 (Pa. Cmwlth. 1995). We conclude that the right of PennDOT to resort to equity and specifically to obtain a preliminary injunction is far from clear. We realize that this issue must be resolved as part of our ultimate disposition of this case. We will wait, however, until that stage of the proceedings in order to do so, In the meantime, the factual record of this case can be completed in very short order. We use the vehicle of this opinion to frame for the parties what we believe to be the crucial issue in this case. In the meantime, the following order is entered. ORDER AND NOW, this day of August, 1999, the request of the plaintiff, . 99-3121 EQUITY Pennsylvania Department of Transportation, for a preliminary injunction is DENIED. BY THE COURT' Steven I. Roth, Esquire For the Plaintiff A. Hess, J. Lee Alan Stivale, Esquire For the Defendant :rlm