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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Tinicum Township v. Delaware Valley Concrete, Inc. and Mario Diliberto, Appellants BEFORE: : : : No. 1119 C.D. 2002 : Argued: November 5, 2002 : : :

HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JIM FLAHERTY, Senior Judge FILED: December 13, 2002

OPINION BY JUDGE PELLEGRINI

Delaware Valley Concrete, Inc. and Mario Diliberto (collectively, DVC) appeal from an order of the Court of Common Pleas of Bucks County (trial court) granting Tinicum Township's (Township) request for a preliminary injunction to enjoin DVC from blasting in their quarrying operation.1 Mario Diliberto owns property in Tinicum Township that he leases to Delaware Valley Concrete for the purpose of operating a limestone quarry. In December 1996, DVC applied to the DEP for a permit to deepen the quarry. In 1997, Diliberto and the Township entered into an agreement regarding the development of a golf course on the quarry land which included a provision prohibiting blasting at the quarry (1997 contract).2 As of the date of trial, no golf course had been constructed at the quarry site.
The Department of Environmental Protection (DEP) submitted an amicus curiae brief in support of DVC's appeal and was permitted to argue.
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The agreement between the Township and Diliberto provides in relevant part: 3. All quarrying must cease, and all stockpiles on site are to be removed, within ninety (90) days after issuance of necessary building permits or

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In 1999, the Township adopted what is known as Ordinance 127 (Blasting Ordinance)3 pursuant to both the Pennsylvania Municipalities Planning Code, Act of (continued...)
their equivalent, except for that necessary to construct a golf course. There shall be no blasting. If this agreement becomes void, it is without prejudice to the owner to pursue all other remedies.
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Ordinance 127 provides in relevant part: Ordinance 127, "Regulating Blasting Activities" Pursuant to the provisions of the Pennsylvania Municipalities Planning Code and the Second Class Township Code, in order to protect the health, safety and welfare of the Township, Tinicum Township, Bucks County ordains as follows: Article I, "Purpose" It is against public policy to permit uncontrolled, unrestricted blasting. The purpose of this Ordinance is to prevent needless damage to life and property because of improper blasting and the nuisances caused by blasting. Article III, "General Limitations" A. It shall be unlawful to conduct blasting without complying with this Ordinance. B. It shall be unlawful to conduct blasting within 2,000 feet of a structure listed on the National Register of Historic Places, a National Heritage Corridor, a structure contributing to the National Register Historic District, or a public park unless it pertains to a residential use and is reviewed and approved by Tinicum Township. C. It shall be unlawful to conduct blasting that shall cause a peak particle velocity greater than one inch per second, measured at the immediate location of any non-owned dwelling unit, public building, public park, school, church, hospital, commercial building, industrial building, livestock shelter, barn, or other inhabited structures.

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July 31, 1968, P.L. 805, as amended, 53 P.S.

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