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PHILADELPHIA ELECTRIC COMPANY v. COMMONWEALTH PENNSYLVANIA (07/21/87)

decided: July 21, 1987.

PHILADELPHIA ELECTRIC COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND NESHAMINY WATER RESOURCES AUTHORITY, RESPONDENTS. NORTH PENN WATER AUTHORITY AND NORTH WALES WATER AUTHORITY, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, AND NESHAMINY WATER RESOURCES AUTHORITY, RESPONDENTS



Original Jurisdiction in case of Philadelphia Electric Company v. Commonwealth of Pennsylvania, Department of Environmental Resources and Neshaminy Water Resources Authority, and in case of North Penn Water Authority and North Wales Water Authority v. Commonwealth of Pennsylvania, Department of Environmental Resources, and Neshaminy Water Resources Authority.

COUNSEL

Bernard Chanin, with him, Jeffrey S. Saltz, Pamela S. Goodwin and Michael M. Meloy, Wolf, Block, Schorr and Solis-Cohen, and Robert W. Valimont, Power, Bowen & Valimont, for petitioner, Philadelphia Electric Company.

Jeremiah J. Cardamone, with him, Ann Thornburg Weiss and Catharine M. Roseberry, Timoney, Knox, Hasson & Weand, for petitioners, North Penn Water Authority and North Wales Water Authority.

Louise S. Thompson, Assistant Counsel, with her, Dennis W. Strain, Assistant Counsel, for respondent, Commonwealth of Pennsylvania, Department of Environmental Resources.

Fred T. Magaziner, with him, Gordon W. Gerber, Lois Reznick and George G. O'Brien, Dechert, Price & Rhoads, for respondent, Neshaminy Water Resources Authority.

Richard M. Rosenbleeth, with him, William E. Taylor, III, and Glenn S. Gitomer, Blank, Rome, Comisky & McCauley ; Of Counsel: James M. McNamara, County Solicitor, for intervenor, County of Bucks.

Robert J. Sugarman, with him, Walter W. Cohen, Sugarman & Cohen, for intervenor, Del-Aware Unlimited and Charles Yarmark, et al.

President Judge Crumlish, Jr. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 108 Pa. Commw. Page 9]

Before this Court is another action in the continuing series of legal contests between those in favor of and those opposed to the Point Pleasant Water Diversion Project, commonly known as the Delaware River "Pump project."

Herein, the Philadelphia Electric Company and North Penn and North Wales Water Authorities (petitioners)

[ 108 Pa. Commw. Page 10]

    have filed petitions for review in our original jurisdiction 42 Pa. C.S. § 761 and applications for prohibitory, injunctive relief seeking to enjoin the Commonwealth Department of Environmental Resources (DER) from suspending construction on certain portions of the project which were previously permitted by DER.*fn1 North Penn and North Wales also seek a writ of mandamus to compel DER to transfer to them portions of those permits previously held by the Neshaminy Water Resources Authority (NWRA), as directed by the Bucks County Common Pleas Court order of February 24, 1985. DER and NWRA have filed preliminary objections to these petitions. Del-Aware Unlimited, Inc., and Bucks County request leave to intervene and have filed motion to dismiss petitioners' petition.*fn2

The factual background of this litigation is painfully familiar and does not warrant detailed recitation at this time. Suffice it to say that, on June 26, 1987, in response to the petitioners' requests for extensions on water allocation and stream encroachment permits*fn3 for

[ 108 Pa. Commw. Page 11]

    components of the diversion project, DER issued four letters extending those permits until December 31, 1987. However, DER reasserted its rights to revoke or suspend in the future and, in the case of encroachment permits, it ordered that "no further construction of facilities approved under th[e] permit[s] [are] authorized, during the period of this extension."

Although water allocation and encroachment permits had been extended several times since they were originally granted (the water allocation permit was issued in 1978; the encroachment permits in 1982), never before had there been conditions imposed prohibiting construction. DER, under the guidance of its newly-appointed secretary, sua sponte ordered this halt to construction, having decided to review and re-evaluate the entire project.

In support of the preliminary objections, DER, NWRA and Bucks County argue that jurisdiction over this matter is in the Commonwealth Environmental Hearing Board (EHB) and not this Court, because petitioners have failed to exhaust their administrative remedies -- specifically, they did not appeal DER's decision to that body.

Petitioners argue that Deputy Secretary James Grace, author of the permit extension letters, lacked authority or at least exceeded it by prohibiting construction as a condition of extending the permits, since construction was properly authorized at their issuance. Thus, the gravamen of the petitioners' complaints is a challenge to the scope of the Deputy Secretary's legal authority, as delegated from the Secretary, to restrict the permit extensions.

Petitioners seek a prohibitive writ to restrain DER, in its adjudicatory function, from exceeding its established

[ 108 Pa. Commw. Page 12]

    limits in the exercise of its jurisdiction. Such writs lie when an inferior tribunal either has no jurisdiction or exceeds its jurisdiction and are within the discretion of an appellate court, Capitol Cities Media v. Toole, 506 Pa. 12, 483 A.2d 1339 (1984). They will not lie unless there is a clear usurpation of power by the inferior tribunal and a lack of adequate alternate remedy. Yellow Cab Owners and ...


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