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AUTOMOBILE SERVICE COUNCILS PENNSYLVANIA ET AL. v. THOMAS D. LARSON (04/25/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 25, 1984.

AUTOMOBILE SERVICE COUNCILS OF PENNSYLVANIA ET AL., PETITIONERS
v.
THOMAS D. LARSON, SECRETARY OF DEPARTMENT OF TRANSPORTATION ET AL., RESPONDENTS

Original jurisdiction in the case of Automotive Service Councils of Pennsylvania et al. v. Thomas D. Larson, Secretary, Department of Transportation et al.

COUNSEL

Joel Weisberg, for petitioners.

Gregory R. Neuhauser, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 82 Pa. Commw. Page 48]

Automotive Service Councils of Pennsylvania, the Pennsylvania and Delaware Service Station Dealers Association and Gordon Lewis, trading and doing business as Gordie's Auto Service (Petitioners) and Thomas D. Larson, Secretary of the Department of Transportation and the Department of Transportation (DOT) file cross-motions for summary judgment.

[ 82 Pa. Commw. Page 49]

We grant petitioners' motion for summary judgment and deny respondents' motion for summary judgment.

On July 23, 1983, DOT published amendments to regulations governing the automobile emission inspection program.*fn1 Petitioners allege that the promulgation of these regulations did not comply with statutory requirements.

The issue before us is whether the regulations were properly promulgated under Section 204 of the Commonwealth Documents Law.*fn2

We have previously held that regulations not properly promulgated under this Act are a nullity. Burlington Homes, Inc. v. Kassab, 17 Pa. Commonwealth Ct. 329, 332 A.2d 575 (1975); Newport Homes, Inc. v. Kassab, 17 Pa. Commonwealth Ct. 317, 332 A.2d 568 (1975). Section 204, however, allows an agency to omit notice of proposed rule making when circumstances are such that notice would be "impracticable, unnecessary or contrary to the public interest."*fn3 DOT argues that this statutory exception is applicable. It contends that the comment period was omitted in order to comply with a federal court

[ 82 Pa. Commw. Page 50]

    order which stated that the regulation must be adopted by August 1, 1983. DOT asserts that, due to the court-imposed time constraints, the comment period was unnecessary.

Conversely, petitioners argue that DOT's lack of notice was not proper. They contend that DOT does not fall within the exception to the requisite thirty-day comment period.*fn4 We agree.

The regulations were in final form and submitted to the Department of Aging by June 2, 1983. DOT could have published the regulations for comment at this time, yet it waited until July 23, 1983. Since there was sufficient time and opportunity to submit the regulations for the prescribed thirty-day comment period, DOT cannot claim that the period was unnecessary due to time limitations set by the federal court.

DOT also argues that, even if the petitioners were allowed the comment period, it is doubtful they could present additional comments which would be successful in changing DOT's decision to use a particular type of equipment in the auto emission inspection program.*fn5 Yet the ultimate outcome of the equipment dispute is not of paramount importance. Our major concern is that state law has established certain required procedures for providing notice of proposed rule making. These procedures are designed to provide parties with a fair opportunity to present their position whether or not they will ultimately prevail. A bypass of the Commonwealth Documents Law's notice provisions would significantly limit the public's input as to future proposed regulations. We

[ 82 Pa. Commw. Page 51]

    therefore hold that this regulation, not being properly promulgated, is a nullity.

Petitioners' motion for summary judgment is granted. Respondents' motion for summary judgment is denied.

Order

Upon consideration of the cross-motions for summary judgment of petitioners and respondents, the petitioners' motion for summary judgment is granted and the respondents' motion for summary judgment is denied.

Disposition

Petitioners' motion for summary judgment granted.


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