No. 4 M.D. Appeal Dkt. 1983, Appeal from the Order of the Commonwealth Court of Pennsylvania, at No. 1762 C.D. 1981, Entered December 15, 1982. Opinion and Decree Nisi Filed November 18, 1982. Cite: Pa. , 443 A.2d 1197 (1982). No. 5 M.D. Appeal Dkt. 1983, Appeal from the Order of the Commonwealth Court of Pennsylvania, at No. 1506 C.D. 1981, Entered December 15, 1982. Opinion and Decree Nisi Filed November 18, 1982. Cite: Pa. , 443 A.2d 1197 (1982).
Michael T. McCarthy, Harrisburg, for appellants Scanlon, et al.
Allen C. Warshaw, Deputy Atty. Gen., for appellee Com.
John Hrubovack, Harrisburg, for appellee Penndot.
Joseph W. Marshall, III, Philadelphia, for appellants Burd, et al.
Roberts, C.j., Larsen,*fn* Flaherty, McDermott and Zappala, JJ. Roberts, C.j., and Zappala, J., file dissenting opinions. Nix and Hutchinson, JJ., did not participate in the consideration or decision of this case.
The record in this case reveals the following facts: On June 29, 1976, a lawsuit was filed against appellees, Pennsylvania Department of Transportation (Penndot), and Pennsylvania Department of Environmental Resources, et al., in the United States District Court for the Eastern District of Pennsylvania, by the Delaware Valley Citizens' Council for
Clean Air.*fn1 The action was brought to enforce the inspection/maintenance auto emission regulation (40 CFR 52.2038), under the authority of the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. Later, on February 18, 1977, a second lawsuit was brought against the appellees in the same court, by the United States of America,*fn2 to compel the implementation, maintenance and enforcement of an inspection/maintenance auto emission program in certain particular counties in Pennsylvania under authority of Federal Law.*fn3 Eventually, the two cases were consolidated.*fn4
On August 29, 1978, without adjudication of any of the issues raised, the actions were concluded by the entry of a consent decree agreed to by counsel for the parties to the lawsuits.*fn5 Under the terms and conditions of the consent decree, appellee Penndot was required to seek the enactment of enabling legislation for a franchise system of auto emission inspection and maintenance. In the event that such legislation was not obtained by July 1, 1979, or, if the parties agreed, by October 1, 1979, then appellee Penndot would immediately move toward implementation of a private garage system of inspection. The General Assembly failed to
provide legislation for a franchise system and Penndot proceeded to arrange for implementation of a private garage system as agreed. On December 22, 1979, pursuant to the consent decree, appellee Penndot adopted final regulations for an auto emission inspection program.*fn6
On March 7, 1981, the consent decree was modified to extend the time within which Penndot was to implement the private garage system. On May 21, 1981, the United States District Court refused Penndot's request for another extension of time and ordered that the inspection/maintenance program as set forth in the consent decree be established without further delay. On June 16, 1981, the District Court issued an additional order requiring appellees to have a fully operational program by May 1, 1982. Penndot proceeded to carry out the provisions of the consent decree which necessarily involved the expenditure of state monies. Final equipment standards were adopted and promulgated on October 10, 1981.*fn7
On October 5, 1981, the General Assembly overrode a gubenatorial veto and enacted into law H.B. 456 which provided as follows:
"Neither the department nor any other department or agency of the executive branch of state government shall expend any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission system of motor vehicles." (1929, April 9, P.L. 177, Art XX, § 2013, added 1981, Oct. 5, P.L. 289, No. 99, § 2; 71 P.S. § 523).
After the passage of H.B. 456, Penndot ceased to implement the terms of the consent decree. As a result, on January 22, 1982, the United States District Court entered an order holding the Commonwealth in contempt.
In June and July of 1981, the present actions were initiated by the two groups of appellant-legislators, each group filing a separate petition for review in the Commonwealth
Court.*fn8 Both suits allege that the appellee Penndot was not empowered by any legislation to enter into a consent decree committing the Commonwealth to the implementation of an auto emissions inspection/maintenance program. The actions aver that, without authorizing legislation, Penndot lacked the authority to: (1) establish and implement an auto emissions inspection system; (2) ensure enforcement of such a system; and (3) establish any subsidiary programs to a primary emissions program. In each lawsuit the appellants asked, inter alia, for a declaratory judgment ruling that Penndot did not have the power to establish, implement and maintain an inspection/maintenance auto emission program as contemplated by the consent decree; and further that an injunction issue, enjoining appellees from performing the terms and conditions of the consent decree without obtaining authorization from the legislature.
After the two cases were consolidated for trial, the Commonwealth Court entered a decree finding that the appellee Penndot had the authority to establish, implement and maintain an auto emissions inspection program as called for by the consent decree and denied appellants' prayer for relief. 66 Pa. Commw. 129, 443 A.2d 1197. Appeal to this Court followed.
The appellants argue that appellees lacked the authority to establish and implement an auto emissions inspection program at the time they entered into the consent decree calling for such a program.
The appellee Penndot, on the other hand, argues that indeed it had authority to commit to the implementation of an emissions inspection program by virtue of Sections 4701, 4702(a), 4521, 4531 and 6103 of the Motor Vehicle Code*fn9 which Sections provide, in the order set forth, as follows:
§ 4701. Duty to comply with inspection laws
No owner or driver shall refuse to submit a vehicle to any inspection and test that is authorized or required by the provisions of this chapter.
§ 4702. Requirement for periodic inspection of vehicles
(a) General rule. -- The department shall establish a system of semiannual inspection of vehicles registered in this Commonwealth.*fn10
§ 4521. Promulgation of regulations by department
The department shall promulgate regulations governing the number, size, color, type, construction, location and use of other equipment on vehicles consistent with but not limited by the provisions of this subchapter and taking into consideration ...