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decided: October 31, 1986.


Appeal Nos. 26 and 56 W.D. Appeal Dkt., 1985 from the Order of the Commonwealth Court Dated March 28, 1985, and on Appeal Nunc Pro Tunc (Petition for Allowance of Appeal Nunc Pro Tunc granted Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion. Larsen, J., files a concurring opinion in which McDermott and Papadakos, JJ., join.

Author: Per Curiam

[ 512 Pa. Page 328]


The orders of Commonwealth Court dated December 7, 1984, 88 Pa. Commw. 418, 491 A.2d 284, and March 28, 1985, are reversed. Since the record shows that hazardous wastes are involved, the case is remanded to Commonwealth Court for further proceedings. See Commonwealth v. Lutz, 512 Pa. 192, 516 A.2d 339 (1986).


ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this Court that the judgments of the COMMONWEALTH COURT OF PENNSYLVANIA be, and the same are, hereby reversed.

NIX, Chief Justice, concurring.

I concur in the result for the reasons expressed in my Concurring Opinion in Commonwealth v. Lutz, 512 Pa. 192, 207-210, 516 A.2d 339, 347 (1986).

LARSEN, Justice, concurring.

I join in reversing the determination of the Commonwealth Court in this case which held that the warrantless inspection of appellee William Fiore's hazardous waste disposal facility violated the Fourth Amendment. That court correctly identified the United States Supreme Court's decision in Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), as controlling. Donovan delineated the elements that must be present in order to justify a warrantless administrative search under the " Colonnade-Biswell exception"*fn1 to the warrant requirement of the Fourth Amendment. In finding this exception inoperative in the instant case under section 608 of the Solid Waste Management

[ 512 Pa. Page 329]

Act (the "Act"), 35 P.S. ยง 6018.608 (Supp. 1985), the Commonwealth Court held:

Because none of [the Donovan] elements are present in the provisions currently before this Court, it must be held that any warrantless search conducted pursuant to their authority is unreasonable and, therefore, unconstitutional. Consequently, DER [the Department of Environmental Resources, appellant] has no legal right to enter Fiore's premises without first obtaining a search warrant.

Based on the foregoing, DER's request for a preliminary injunction is denied.

88 Pa. Commw. at 425, 491 A.2d at 288.

We reverse this determination by Per Curiam Order and remand for further proceedings in light of this Court's decision in Commonwealth v. Lutz, 512 Pa. 192, 516 A.2d 339 (1986) (Nix, C.J., concurring; Flaherty, J., concurring; Larsen, J., dissenting, joined by McDermott and Papadakos, JJ.). In Lutz, Justice Hutchinson, in his Opinion Announcing the Judgment of the Court, approved (in dictum) warrantless administrative searches of hazardous waste facilities under Donovan and section 608 of the Act; however, with Chief Justice Nix concurring on non-constitutional grounds, this Court invalidated the warrantless administrative search of appellee Lutz's property which was perceived to involve an investigation or search only for "ordinary solid waste" or non-hazardous waste. See Opinion Announcing the Judgment of the Court, 512 Pa. at 195, 516 A.2d at 340. Justice Flaherty agreed that the search was invalid under the Fourth Amendment but viewed any discussion of the validity of a search of a hazardous waste facility as "unnecessary and . . . beyond the issue in this case." This author and Justices McDermott and Papadakos would have gone further and would have allowed warrantless administrative searches of all solid waste disposal facilities, including non-hazardous waste facilities, under Donovan and the inspection provisions of the Act.

[ 512 Pa. Page 330]

*fn1 Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (upholding validity of warrantless inspections of businesses in alcoholic beverage industry); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (upholding validity of warrantless inspections authorized by Gun Control Act).

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