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APPEAL KEN W. HOGE TO AN ORDER TO VACATE PREMISES ENTERED BY DEPARTMENT LABOR AND INDUSTRY (01/22/80)

decided: January 22, 1980.

IN RE: APPEAL OF KEN W. HOGE TO AN ORDER TO VACATE PREMISES ENTERED BY THE DEPARTMENT OF LABOR AND INDUSTRY


Appeal from the Order of the Department of Labor and Industry in case of In Re: Premises: Superior Pools; Ken W. Hoge, Owner; Violation of Fire and Panic Act and Failure to Correct Deficiencies Noted in Departmental Orders Dated October 15, 1976, No. ID 195751.

COUNSEL

Submitted on briefs:

C. Donald Gates, Jr., for petitioner.

Susan Shinkman, Assistant Attorney General, for respondent.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Craig

[ 48 Pa. Commw. Page 643]

This petition for review has been filed by petitioner Hoge (owner) as an appeal from an order of the Department of Labor and Industry (DLI) requiring the owner to vacate and place out of service his commercial building in the Town of McCandless, Allegheny County, Pennsylvania because of alleged violations of the Fire and Panic Act, Act of April 27, 1927, P.L. 465, as amended, 35 P.S. § 1221 et seq., violations cited by DLI in an earlier notice. The authority to require vacation of the premises is found in Section 12 of the Fire and Panic Act, 35 P.S. § 1232.

In a brief submitted without oral argument, the owner has argued only that (1) the condition of the building is not in violation of the cited regulations under the Fire and Panic Act, and (2) the original notice of violations failed to lay a basis for building vacation because it did not identify those violations which "constitute an imminent threat of harm," in the language of 34 Pa. Code § 37.703.

DLI has responded with a motion to dismiss the petition on the ground that the owner, having not appealed the vacation order to the Industrial Board, has failed to exhaust his administrative remedy. Delaware Valley Convalescent Center, Inc. v. Beal, 34 Pa. Commonwealth Ct. 177, 382 A.2d 1290 (1978).

We agree with DLI, although not on the basis of the authority cited in DLI's brief. The governing procedure here is clearly prescribed in 34 Pa. Code

[ 48 Pa. Commw. Page 644]

§§ 37.701-37.710, regulations which DLI has been expressly empowered to promulgate by Section 1 of the Fire and Panic Act, 35 P.S. § 1221. We have held that those regulations bind the department and others. See In Re: Bentleyville Plaza, Inc., 38 Pa. Commonwealth Ct. 235, 392 A.2d 899 (1978).

Those regulations prescribe the procedure for enforcement in a case of this nature. First, they call for issuance of a notice of alleged violations, under the above-cited section 34 Pa. Code § 37.703. In a fair reading of that regulation, we find that its essential requirement is an identification of the violations, but that an express recitation of the ...


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