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decided: May 11, 1987.


Original Jurisdiction in the case of Pennsylvania Independent Petroleum Producers, A Non-Profit Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources and Nicholas De Benedictis, Secretary of Environmental Resources of the Commonwealth of Pennsylvania.


Thomas L. Cooper, with him, Alfred S. Pelaez, Gilardi, Cooper, & Gismondi, P.A., for petitioner.

Jerome T. Foerster, Deputy Attorney General, with him, Justina Wasicek, Assistant Counsel, Andrew S. Gordon, Chief Deputy Attorney General, for respondents.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Barry concurs in the result only.

Author: Crumlish

[ 106 Pa. Commw. Page 74]

The Pennsylvania Independent Petroleum Producers*fn1 (PIPP) filed a petition for review in the nature of an equitable action for declaratory judgment challenging the constitutionality of the 1984 Oil and Gas Act.*fn2 The Commonwealth filed preliminary objections, which were denied per curiam. Pennsylvania Independent Petroleum Page 75} Producers v. Department of Environmental Resources, 95 Pa. Commonwealth Ct. 51, 504 A.2d 420 (1986). PIPP has now filed a motion for summary judgment. We deny said motion.

The issuance of a declaratory judgment is a matter of judicial discretion which should only be exercised to illuminate an existing right, status or legal relation. Doe v. Johns-Manville Corp., 324 Pa. Superior Ct. 469, 471 A.2d 1252 (1984). An actual controversy must exist for declaratory relief to be appropriate. South Whitehall Township v. Department of Transportation, 82 Pa. Commonwealth Ct. 217, 475 A.2d 166 (1984).

Summary judgment may be entered only where the following standards are met:

1) the case must be clear and free from doubt; 2) the moving party must prove that there is no genuine issue of material fact to be tried and that it is entitled to judgment as a matter of law; and 3) the record must be viewed in the light most favorable to the non-moving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Commonwealth Ct. 88, 93, 434 A.2d 1327, 1329 (1981), aff'd, 498 Pa. 589, 450 A.2d 613 (1982). A motion for summary judgment is appropriate in declaratory judgment proceedings. Id.

The Oil and Gas Act became effective on April 18, 1985. It replaced the Gas Operations Well-Drilling Petroleum and Coal Mining Act.*fn3 The purpose of the Oil and Gas Act is to permit the optimal development of

[ 106 Pa. Commw. Page 76]

    such resources in this Commonwealth consistent with the protection of the health, safety, environment and property of the citizenry.*fn4 At the time this case was argued before this Court, no enforcement actions had been initiated.

PIPP's petition to this Court contains thirteen counts challenging seven specific provisions of the Oil and Gas Act and, in the alternative, the entire Act itself. We will review the contested provisions seriatim.

Section 208

Water Pollution Presumption

Section 208(c)*fn5 creates a rebuttable presumption that a well operator is responsible for pollution of any water supply within 1,000 feet of a gas or oil well. Section 505(a)*fn6 states that a person who violates any provision of the Act is guilty of a summary offense, punishable by a fine not to exceed $300 and/or imprisonment up to ninety days. Willful violators of the Act are guilty of a misdemeanor with possible imprisonment of not more than one year. Section 505(b).*fn7

PIPP contends that if the pollution presumption is applied in a criminal enforcement proceeding, it would impermissibly shift to a well operator the Commonwealth's burden to prove beyond a reasonable doubt all elements of a criminal violation. See Commonwealth v. McFarland, 252 Pa. Superior Ct. 523, 382 A.2d 465 (1977).

The Commonwealth counters that declaratory relief is inappropriate at this time because no criminal actions involving Section 208 have been initiated. Hence, no

[ 106 Pa. Commw. Page 77]

    actual controversy or threatened action exists. See Chester Upland School District v. Commonwealth, 90 Pa. Commonwealth Ct. 464, 495 A.2d 981 (1985). The Commonwealth also argues that Section 208 creates only a rebuttable presumption to a civil offense because the penalty imposed for pollution in subsection (a), i.e., restoration or replacement of the affected water supply, is the exclusive remedy for violations.

The criminal sanctions found in Section 505 are expressly applicable to violations of any provision of the Oil and Gas Act. However, the record fails to disclose any actual or threatened criminal prosecution for a Section 208 violation. The Commonwealth has conceded that the presumption would not be appropriate in criminal prosecutions and that it would have the burden to establish all elements of a criminal violation. Therefore, since we find any injury resulting from Section 506 sanctions to be speculative and remote, we decline to declare Section 208 unconstitutional.

Section 215

Bond Requirements

Section 215(a)*fn8 requires that as of the effective date of the Oil and Gas Act, a bond be filed with the Department of Environmental Resources (DER) upon the filing of an application for a well permit or before continued operation of any oil or gas well. The bonding amount per well is $2,500.*fn9 However, in lieu of individual bonds, an owner may post a blanket bond of ...

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