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COMMONWEALTH PENNSYLVANIA v. WILLIAM FIORE (10/31/86)

decided: October 31, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT,
v.
WILLIAM FIORE, D/B/A MUNICIPAL AND INDUSTRIAL DISPOSAL COMPANY, APPELLEE



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]

Order

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).

JUDGMENT

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 ...


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