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decided: April 14, 1982.


Original Jurisdiction in the cases of James M. Burd et al. and Eugene F. Scanlon et al. v. Commonwealth of Pennsylvania, Department of Transportation et al.


Myrna P. Field, with her Joseph W. Marshall, III, for petitioners, James M. Burd et al.

Jack R. Heneks, Jr., Assistant Legal Counsel, with him Michael T. McCarthy, Chief Counsel to the Senate Democratic Floor Leader, for petitioners, Eugene F. Scanlon et al.

Allen C. Warshaw, Deputy Attorney General, with him Mary Ellen Krober, Deputy Attorney General, John Hrubovcak, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. and Judges Blatt, Williams, Jr., Craig and MacPhail. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case. Dissenting Opinion by Judge Craig. Judge Williams, Jr. joins this dissent.

Author: Macphail

[ 66 Pa. Commw. Page 131]

Petitioners Burd, Scanlon and other named members of the Pennsylvania General Assembly*fn1 have filed motions for summary judgment in two cases brought in our original jurisdiction for a declaratory judgment and injunctive relief seeking to prevent the Pennsylvania Department of Transportation (PennDOT) from implementing an automobile emission inspection and maintenance program (I/M Program) to control air pollution in the greater Pittsburgh and Philadelphia areas.*fn2

The program is the culmination of two federal suits brought against PennDOT and the Department of Environmental Resources (DER)*fn3 to enforce an inspection/maintenance provision of the state's air pollution implementation plan, required by the Clean Air Act and its 1970-1977 amendments.*fn4 Faced with a cut-off of federal grant funds, the parties entered into a consent decree approved by the Federal District Court on August 29, 1978 to implement the inspections either through a franchise system or a private garage system. PennDOT promulgated final regulations for the program on December 22, 1979,*fn5 and for the equipment standards on October 10, 1981,*fn6 although federal court

[ 66 Pa. Commw. Page 132]

    modification of the consent decree extended the final operational dead-line to May 1, 1982.

In October of 1981, the General Assembly overrode the governor's veto of House Bill No. 456*fn7 which prohibited PennDOT or any other executive agency from spending "any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission systems of motor vehicles."

On January 22, 1982 the Federal District Court held the Commonwealth in contempt of court for failure to implement the consent decree.

The Petitioners, in addition to filing comments in response to the modification of the consent decree and attempting to intervene in the federal suits*fn8 instituted these actions challenging PennDOT's authority under state law to establish and implement the program as well as its authority to expend what they claim are unappropriated state funds to effectuate the plan.

Based on the joint stipulation of facts filed by the parties, we find no genuine issues as to any material fact remaining, thus discharging the first requirement for summary judgment under Pa. R.C.P. No. 1035.*fn9

In support of their contention that they are entitled to judgment as a matter of law, the Petitioners maintain that PennDOT has no legislative authority to implement the I/M Program.

[ 66 Pa. Commw. Page 133]

While it has been argued to us that the status of the cases in the federal courts to which we have previously referred should have no bearing on the outcome of the matter now before us, we must observe that the posture of the case presents a classic confrontation between the federal and state judicial systems. The Commonwealth of Pennsylvania is under a contempt order from a federal court for failure to implement an I/M Program. Petitioners would have us rule as a matter of law under stipulated facts that PennDOT has no statutory authority to establish, implement and maintain an I/M Program and that PennDOT should be enjoined from any further implementation of that program including the expenditure of Commonwealth funds for that program. Were we to enter such a judgment we would be placing PennDOT in the unenviable, and indeed impossible, situation of being subject to an order of this court, the effect of which would be to prohibit PennDOT from implementing the I/M Program at the same time that PennDOT is under a contempt order from a federal court for failing to implement that same program. No agency or department of the Commonwealth should be put in such a dilemma by this Court.

With respect to that part of the motion for summary judgment which asks us to restrain PennDOT from expending Commonwealth funds for this program, we must note that since the General Assembly of which all Petitioners are members has enacted legislation which provides specifically that no public funds shall be so expended, there is little if any effect we can give by way of judicial order to what the legislature has already accomplished without judicial intervention. It seems obvious to us that PennDOT cannot spend money it does not have.

We agree with Petitioners' contention that the delineation of executive and legislative authority has

[ 66 Pa. Commw. Page 134]

    been set forth in Shapp v. Sloan, 480 Pa. 449, 469, 391 A.2d 595, 604-05 (1978) as follows:

It is the General Assembly, not the executive branch, which has been given the constitutional power to determine what programs will be adopted in our Commonwealth and how they will be financed. Although this may be done upon the recommendations of the executive branch, the final determinations are legislative in nature. The executive's function is to carry out those programs authorized by legislation.

Concerning PennDOT's statutory authority to implement any I/M Program, the parties before us call our attention to several provisions of the Vehicle Code (Code).*fn10 Section 4531 of the Code, 75 Pa. C.S. § 4531, provides as follows:

(a) Compliance with established maximum levels. -- No vehicle manufactured in compliance with the requirements of the Clean Air Act (77 Stat. 392, 42 U.S.C. § 1857), or any amendments or supplements thereto, shall have emissions exceeding the maximum permissible levels prescribed by law.

(b) Limitation on alteration of system. -- No person shall change or alter the emission control system of a vehicle in such a manner that it fails to comply with the prescribed emissions criteria. It is unlawful for the vehicle to be operated under its own power until a reinspection at an official inspection station establishes its full compliance.

It is difficult for this court to conceive of any clearer authority for an I/M Program than that set forth in the language just quoted. It seems clear to us that there is no ...

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