Philadelphia Electric Co. v. Commonwealth

529 A.2d 1137, 108 Pa. Commw. 7, 1987 Pa. Commw. LEXIS 2366
CourtCommonwealth Court of Pennsylvania
DecidedJuly 21, 1987
DocketNos. 1437 C.D. 1987 and 1438 C.D. 1987
StatusPublished
Cited by3 cases

This text of 529 A.2d 1137 (Philadelphia Electric Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Philadelphia Electric Co. v. Commonwealth, 529 A.2d 1137, 108 Pa. Commw. 7, 1987 Pa. Commw. LEXIS 2366 (Pa. Ct. App. 1987).

Opinion

Opinion by

President Judge Crumlish, Jr.,

Before this Court is another action in the continuing series of legal contests between those in favor of and those opposed to the Point Pleasant Water Diversion Project, commonly known as the Delaware River “Pump project.”

Herein, the Philadelphia Electric Company and North Penn and North Wales Water Authorities (peti[10]*10tioners) have filed petitions for review in our original jurisdiction 42 Pa. C. S. §761 and applications for prohibitory, injunctive relief seeking to enjoin the Commonwealth Department of Environmental Resources (DER) from suspending construction on certain portions of the project which were previously permitted by DER.1 North Penn and North Wales also seek a writ of mandamus to compel DER to transfer to them portions of those permits previously held by the Neshaminy Water Resources Authority (NWRA), as directed by the Bucks County Common Pleas Court order of February 24, 1985. DER and NWRA have filed preliminary objections to these petitions. Del-Aware Unlimited, Inc., and Bucks County request leave to intervene and have filed motion to dismiss petitioners’ petition.2

The factual background of this litigation is painfully familiar and does not warrant detailed recitation at this time. Suffice it to say that, on June 26, 1987, in response to the petitioners’ requests for extensions on water allocation and stream encroachment permits3 for [11]*11components of the diversion project, DER issued four letters extending those permits until December 31, 1987. However, DER reasserted its rights to revoke or suspend in the future and, in the case of encroachment permits, it ordered that “no further construction of facilities approved under th[e] permit[s] [are] authorized, during the period of this extension.”

Although water allocation and encroachment permits had been extended several times since they were originally granted (the water allocation permit was issued in 1978; the encroachment permits in 1982), never before had there been conditions imposed prohibiting construction. DER, under the guidance of its newly-appointed secretary, sua sponte ordered this halt to construction, having decided to review and re-evaluate the entire project.

In support of the preliminary objections, DER, NWRA and Bucks County argue that jurisdiction over this matter is in the Commonwealth Environmental Hearing Board (EHB) and not this Court, because petitioners have failed to exhaust their administrative remedies—specifically, they did not appeal DER’s decision to that body.

Petitioners argue that Deputy Secretary James Grace, author of the permit extension letters, lacked authority or at least exceeded it by prohibiting construction as a condition of extending the permits, since construction was properly authorized at their issuance. Thus, the gravamen of the petitioners’ complaints is a challenge to the scope of the Deputy Secretary’s legal authority, as delegated from the Secretary, to restrict the permit extensions.

Petitioners seek a prohibitive writ to restrain DER, in its adjudicatory function, from exceeding its es[12]*12tablished limits in the exercise of its jurisdiction. Such writs lie when an inferior tribunal either has no jurisdiction or exceeds its jurisdiction and are within the discretion of an appellate court, Capitol Cities Media v. Toole, 506 Pa. 12, 483 A.2d 1339 (1984). They will not lie unless there is a clear usurpation of power by the inferior tribunal and a lack of adequate alternate remedy. Yellow Cab Owners and Drivers Association v. Pennsylvania Public Utility Commission, 87 Pa. Commonwealth Ct. 626, 488 A.2d 369 (1985).

Petitioners contend that, due to the unique factual posture of this matter, the adequacy of administrative relief is unlikely if not non-existent. We agree. Construction on this multi-million dollar project has been halted for more than three weeks because of DER’s action. Noting the history of righteous litigation which encompasses this project and undeniable seasonal bureaucratic delays, and even assuming that the EHB would act promptly on a stay, the construction ban could continue well beyond this construction season because of further legal maneuvers. This Court cannot countenance procedural delays which would, under the guise of administrative review, have the same practical effect of allowing a government official to take steps which otherwise may not be within his authority. See Arsenal Coal Co. v. Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984) (equity jurisdiction properly invoked for pre-enforcement review of agency regulation when harm shown is “immediate and direct”). See also Lindy Homes v. Sabatini, 499 Pa. 478, 453 A.2d 972 (1982) (disallowing equitable action in mandamus in favor of protracted administrative appeals, where entitlement to permits is clear, would unduly burden permittee with an inadequate and inefficient remedy while facilitating abuse of licensing power). The evidence petitioners presented as to attendant shortfalls [13]*13in water supplies, which this Chancellor accepts as valid, leads us to conclude that they would suffer substantial irreparable harm if judicial inaction were to allow it.4

Moreover, petitioners have raised substantial constitutional challenges5 to DER’s permitting actions which warrant equitable intervention. Young J. Lee, Inc. v. Department of Revenue, 504 Pa. 367, 474 A.2d 266 (1983).

Thus we have concluded that the present status of the “pump project,” as it is now known to every reader, viewer and divergent environmental expert in the Delaware Valley, calls for an inspection and resolution of appropriate equitable principles.

While the usual and carefully preserved constaints this Court meticulously imposes upon itself are at risk, this Chancellor is compelled to reflect upon the historic [14]*14controversy which brings this action before him today. It is particularly compelling in light of the need to examine the equities involved.

A simple equation of the rights of the few and the rights of the many may serve as a stepstone. That there are present before us in Court advocates asserting private or special interests—political or economic or both—should not obscure the genuine interest of individuals, faceless and vocally remote, who are not “named parties” to this action.

This Chancellor believes it his duty as he presides in equitable disputes to look beyond the corporate, private or political interests and to recognize and accommodate the needs of those who otherwise would have no voice in this hall of chancery. Within this larger framework constitutional and statutory requirements must be recognized and applied.

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Related

Neshaminy Water Resources Authority v. 0.754 Acres of Land on Swauger Road
6 Pa. D. & C.4th 426 (Bucks County Court of Common Pleas, 1990)
Borough of Bellefonte v. Commonwealth
570 A.2d 129 (Commonwealth Court of Pennsylvania, 1990)
Del-AWARE Unlimited, Inc. v. Commonwealth
551 A.2d 1117 (Commonwealth Court of Pennsylvania, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
529 A.2d 1137, 108 Pa. Commw. 7, 1987 Pa. Commw. LEXIS 2366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philadelphia-electric-co-v-commonwealth-pacommwct-1987.