Harold R. Schmidt, Rose, Schmidt & Dixon, Pittsburgh, for appellant.
Burton D. Morris, Deputy Atty. Gen., Dept. Justice, Marvin A. Fein, Sp. Asst. Atty. Gen., Dept. of Environmental Resources, Harrisburg, for appellees.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., filed a dissenting opinion in which Eagen and O'Brien, JJ., joined.
This is an appeal from an order of the Commonwealth Court dismissing Bethlehem Mines Corporation's petition for a writ of prohibition against appellees, the Commonwealth of Pennsylvania, Maurice K. Goddard, Secretary of the Department of Environmental Resources, Commonwealth of Pennsylvania, and Robert Broughton, Paul E. Waters, and Gerald H. Goldberg, individually, and as members of the Environmental Hearing Board, Department of Environmental Resources, Commonwealth of Pennsylvania. The appellant's petition in the Commonwealth Court requested that a writ of prohibition issue to prevent the Environmental Hearing Board from proceeding with a scheduled reargument of a matter involving the appellant. In dismissing appellant's petition, the Commonwealth Court held that it did not have statutory authority to issue the writ. The Commonwealth Court therefore did not reach the merits of the controversy. This appeal followed.
We agree with the Commonwealth Court that it may issue a writ of prohibition only if authority to do so
has been statutorily granted. Akron Borough v. Penna. P. U. C., 453 Pa. 554, 310 A.2d 271 (1973); Carbon County v. Leibensperger, 439 Pa. 138, 266 A.2d 632 (1970); Pennsylvania Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963). We conclude, however, that the order of the Commonwealth Court dismissing appellant's writ of prohibition must be reversed because the Commonwealth Court is authorized by statute to issue writs of prohibition.
The Commonwealth Court Act, Act of January 6, 1970, P.L. (1969) 434, § 8(g), 17 P.S. § 211.8(g), authorizes the issuance of writs necessary or suitable for the exercise of the Commonwealth Court's jurisdiction:
"The court shall have power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of the jurisdiction given by this act . . . ."
There is no dispute that the Commonwealth Court has jurisdiction to hear appeals from the Environmental Hearing Board, the tribunal against which the writ of prohibition is sought. See Act of July 31, 1970, P.L. 673, No. 223, art. IV, § 401, 17 P.S. § 211.401. Since the Commonwealth Court has jurisdiction over appeals from the Environmental Hearing Board, and since it is authorized to issue every lawful writ necessary or suitable for the exercise of its jurisdiction, we conclude that the Commonwealth Court has the authority to issue a writ of prohibition.
Were there any doubt about the statutory authority granted in subsection 8(g) of the Commonwealth Court Act, that doubt vanishes after a reading of subsection 8(h) of that Act. Subsection 8(h), not referred to in the Commonwealth Court's opinion provides that the Commonwealth Court shall have "all powers necessary or appropriate in aid of its appellate jurisdiction which are agreeable to the ...