Original jurisdiction in the case of Automotive Service Councils of Pennsylvania et al. v. Thomas D. Larson, Secretary, Department of Transportation et al.
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.
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.
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
order which stated that the regulation must be adopted by August 1, 1983. DOT asserts that, due to the court-imposed time ...