Lutz
v.
Dept. of Health

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of PennsylvaniaJun 27, 1931
304 Pa. 572 (Pa. 1931)
304 Pa. 572156 A. 235

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May 27, 1931.

June 27, 1931.

Equity — Practice — Failure to comply with Equity Rule 67 — Decree — Appeals — Review — Practice.

1. Where a chancellor fails to comply with Equity Rule 67, in not filing findings of fact and conclusions of law as required by the rule, but thereafter and before final hearing files proper findings and conclusions, a decree entered thereon will be considered by the Supreme Court on appeal. [576]

Equity — Nuisance — Piggery — State department of health — Quasi judicial authority — Presumption — Act of 1929.

2. The department of public health is vested with quasi judicial authority to decide what constitutes a nuisance, and all presumptions favor its action. A strong abuse of authority must be shown to induce a court to interfere with the decision, of the board of health, entered under power conferred by the Act of 1929, P. L. 179. [577]

3. An injunction to restrain the department of public health from interfering with the maintainance of a piggery and abating it as a nuisance will not be granted where the court below finds on sufficient evidence that the piggery was filthy, that it polluted a source of water supply, gave forth offensive odors, bred flies and pestilence, was operated in violation of the rules of the state department of public health and was in fact a flagrant nuisance. [577]

Argued May 27, 1931.

Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.

Appeal, No. 26, Jan. T., 1932, by plaintiff, from decree of C. P. Montgomery Co., June T., 1929, No. 27, refusing injunction, in case of Ralph S. Lutz v. Department of Health of the Commonwealth of Pennsylvania, Theodore B. Appel, M.D., commissioner and secretary of health, and the agents and employees of said department, James Duffy, inspector. Affirmed.

Bill for injunction. Before WILLIAMS, J.

The opinion of the Supreme Court states the facts.

Injunction refused. Plaintiff appealed.

Error assigned was decree, quoting record.

Dennis O'Neill for appellants. — The procedure was wrong and nugatory: Murphy v. Murphy, 85 Pa. Super. 169.

Proper disposition should be made of requests for findings of fact and conclusions of law that are properly excepted to: Ioska Tribe v. Great Council of Red Men, 98 Pa. Super. 390; Piper v. Queeney, 282 Pa. 135; Stone v. B. L. Assn., 293 Pa. 161.

The piggery is not a common or public nuisance: Hamilton v. Fay, 283 Pa. 175; Crick v. Paull, 287 Pa. 431; Lawrence v. King, 299 Pa. 568; Fidelity-Phila. Trust Co. v. Coal Co., 294 Pa. 47; Com. v. Armstrong, 24 Pa. C. C. R. 442; Com. v. Soboleski, 303 Pa. 53.

Russell J. Brownback, with him Henry M. Brownback, Harris C. Arnold, Assistant Deputy Attorney General, A. L. Edwards, Deputy Attorney General, and Wm. A. Schnader, Attorney General, for appellee. — Plaintiffs seek to interfere with discretionary acts of executive officers: Hibbs v. Arensberg, 276 Pa. 24; Paris v. Phila. 63 Pa. Super. 41; Adams v. Ford, 3 Pa. Super. 239.

The plaintiff's piggery is a public nuisance: Com. v. Soboleski, 303 Pa. 53; Com. v. Kennedy, 240 Pa. 214; Penna. R. R. Co. v. Coal Co., 281 Pa. 233; Brinton's App., 24 Pa. Dist. 584; Evans v. Fertilizer Co., 160 Pa. 209; Rodenhausen v. Craven, 141 Pa. 546; Paris v. Phila., 63 Pa. Super. 41; Blue v. Beach, 155 Ind. 122; Lee v. March, 230 Pa. 351.

The decree of the court below was properly entered: Swope v. Snyder, 209 Pa. 352; Schwartz v. Wesoky, 281 Pa. 388; Beatty v. Harris, 205 Pa. 377; Perry v. Sims, 279 Pa. 165.


This appeal by plaintiff, Ralph S. Lutz, is from a decree refusing to restrain the secretary of the state department of health, his servants, agents and employees from abating a health nuisance maintained by plaintiff, and assessing the latter with costs.

Plaintiff occupies a tract of about 181/2 acres in Jarrettown, Montgomery County, on which he maintains a piggery where between 1,000 and 1,200 swine are kept and fed on garbage procured from the City of Philadelphia and environs. Sandy Run Creek, which flows into Wissahickon Creek, a tributary of the Schuylkill River, an important source of Philadelphia's water supply, drains the land upon which the hogpens rest and flows within two hundred feet of the nearest swineshelter maintained by Lutz. On July 11, 1929, the secretary of health, acting through the local health officer for Montgomery County, served notice upon the plaintiff ordering him "to abate and remove within thirty (30) days a certain nuisance on the above described premises arising from insanitary piggery, garbage and manure _____ which constitutes a violation of rules and regulations of the department of health, as approved April 4, 1923." The notice provided that "Failure to comply with this order will render you liable to a fine, or imprisonment, or to a lien against said premises for the expense of abatement by the secretary of health, his agents or employees, in accordance with the provisions of the Act of Assembly approved April 27, 1905, and its amendments." The court below found that plaintiff, in the operation of his hog ranch, violates the rules and regulations duly promulgated by the department of health, in that, "He deposits upon the surface of his land in and around the swineshelters and upon the adjacent ground of his ranch and allows to remain exposed there unconsumed garbage, manure, decaying matter and organic waste substances; he places and permits to stay upon his lands such substances in close proximity to waters of the State, whereby they may become affected prejudicially and, in all likelihood, will be polluted; he has failed to construct the floors of his swineshelters of concrete or other impervious material and he lets the lower floors of the enclosures continue in such [unimpervious] conditions; he has built his piggery upon marshy land, on ground subject to overflow and where the piggery can affect prejudicially a water supply; he throws upon his soil in, about and adjacent to the hogpens and upon his adjoining land and sanctions the protracted existence upon the ground of unconsumed garbage and manure unburied and not sufficiently treated with lime or other disinfectant, whereby the organic waste becomes a potent source of excessive fly breeding; and he neglects to remove daily and dispose of, by burial or incineration, his unconsumed garbage."

Notwithstanding receipt of the order, plaintiff continued his violations, and on August 14, 1929, officers and employees of the department of health entered upon plaintiff's tract and proceeded to abate the nuisance. At this point, Lutz, by his agent, entered into a written agreement with the representative of the health department, whereby he promised to remove sources of the nuisance within 48 hours and bear the costs of such removal. Instead of so doing, plaintiff, two days later, filed this bill to restrain the department from further proceeding against him. The court found that since July 11, 1929, plaintiff has made no effort to improve the conditions of his premises; that the piggery is a menace to public health and is a common nuisance and that the department of health is vested with power to abate the nuisance. The injunction was refused and plaintiff was assessed with the costs. This appeal followed.

Although the present bill, from its very nature, calls for a decision upon the merits rather than upon technical ground, a question of procedure is involved which we will treat briefly. The chancellor at first failed to follow the provision of our Equity Rule 67, which requires that an equity adjudication shall consist of definite and prescribed elements, viz., the pleadings, findings of fact, conclusions of law, a discussion thereof, and a decree nisi. Instead, there was filed what was termed a "decree nisi" on May 16, 1930, unaccompanied by findings of facts or conclusions of law. On May 29, 1930, "findings of fact," were filed and on June 20, 1930, "conclusions of law." The lack of conformity of this procedure to the clear specifications of our Equity Rule 67 rendered these papers less than an adjudication, and accordingly nugatory. Exceptions sustained to these irregular proceedings, accordingly, were also without legal effect. However, on July 11, 1930, the chancellor filed a complete adjudication conforming to Equity Rule 67, and these findings and conclusions alone were considered and made the basis of the decree rendered by the court in banc. This later valid adjudication, as affirmed by the court in banc, is the sole subject for our consideration on this appeal.

Plaintiff contends the action taken by the department of health to abate the nuisance was arbitrary and should consequently be enjoined; no evidence however appears to show an abuse of discretion on the part of defendants. The power of the department of health to act in cases of this character was conferred by the Administrative Code of 1929, P. L. 177, article XXI, section 2102. In this connection we quote with approval what was recently said by the Superior Court in Paris v. Phila., 63 Pa. Super. 41, 47, 48, a case involving summary abatement of a piggery by a local board of health: "They are vested with quasi-judicial authority to decide upon what constitutes a nuisance, and all presumptions favor their action _____ A strong abuse of authority must be shown to induce a court to interfere with the decisions of the board of health." No such abuse appears on the record now before us.

We call attention to the fact that the exchange of places on the present record, occasioned by the injunctive proceedings instituted against the department by Lutz, making him plaintiff and the department defendant, does not alter the merits of the case. On the merits, our recent decision in Commonwealth v. Soboleski, 303 Pa. 53, by analogy to the facts of the present case, rules it in law. There, as here, the findings of the court below show "the piggery as maintained by defendants to be in violation of the regulations of the department of health," and since these findings are amply supported by the evidence, the piggery is subject to abatement as a public nuisance. The evidence conclusively shows plaintiff's piggery is filthy. It pollutes a source of public water supply, gives forth offensive odors that disturb the surrounding neighborhood, and breeds flies and pestilence. It is operated in violation of the rules of the state department of health, which are promulgated by statutory authority. It is a menace to the public health and an annoyance to the neighborhood, and consequently a flagrant nuisance that should be abated.

The further arguments advanced by appellant are inconsiderable and call for no discussion.

The decree of the court below refusing the injunction prayed to issue against the state board of health is affirmed; costs to be paid by appellant.