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JAMES L. SPOONER v. SECRETARY COMMONWEALTH PENNSYLVANIA ET AL. (03/11/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 11, 1988.

JAMES L. SPOONER, D/B/A THE BENTLEY CLUB, LTD., AND CECILIA SHULLER ET AL., AS REPRESENTATIVES OF A CLASS
v.
SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS

Original Jurisdiction in the case of James L. Spooner, d/b/a The Bentley Club, Ltd., and Cecilia Shuller, et al., as Representatives of a Class v. Secretary of the Commonwealth of Pennsylvania, Department of Labor and Industry and Secretary of the Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

Michael A. Dillon, with him, William R. Balaban, Balaban and Balaban, for petitioners.

Mary Martha Truscel, Assistant Counsel, with her, Michael L. Harvey, Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, Leroy S. Zimmerman, Attorney General, for respondents.

Judges MacPhail, Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 114 Pa. Commw. Page 354]

James L. Spooner (Spooner), d/b/a The Bentley Club, Ltd., et al. (Petitioners)*fn1 have filed a petition for review addressed to this Court's original jurisdiction seeking a declaratory judgment that the Department of Environmental Resources (DER) is without authority to enforce its regulation found at 25 Pa. Code § 193.42 which requires a lifeguard to be at poolside at public swimming places licensed by DER. The Department of Labor and Industry and DER (Respondents) filed preliminary objections asserting that since Petitioners were seeking review of DER's enforcement orders this Court lacks original jurisdiction because Petitioners have an adequate statutory remedy which is an appeal of DER's enforcement orders to the Environmental Hearing Board (EHB) and ultimately to this Court.*fn2 Respondents also filed a demurrer. On October 27, 1987, Senior Judge Bucher, as duty Judge, overruled the preliminary objection with respect to this Court's original jurisdiction but did not address Respondents' demurrer. At Respondents' request, we granted reconsideration.

For the reasons which follow, we now overrule both Respondents' preliminary objections regarding this Court's original jurisdiction and Respondents' demurrer.

Petitioners represent in their brief that this case represents a ten-year, ongoing dispute between Petitioners and DER regarding the proper interpretation of

[ 114 Pa. Commw. Page 355]

    the Public Bathing Law (PBL), Act of June 23, 1931, P.L. 899, as amended, 35 P.S. §§ 672-680d.*fn3 Petitioners contend that the PBL provides no authority, either implied or express, under which DER could promulgate its lifeguard regulation and therefore the regulation is invalid. Petitioners also argue that DER's issuance of enforcement orders without a prior hearing violates their right to due process.

Respondents maintain that the regulation is properly promulgated pursuant to the PBL and it has issued enforcement orders to Spooner pursuant to the regulation.*fn4

Respondents' preliminary objections can be summarized as follows: (1) Petitioners have an adequate statutory remedy, an appeal of DER's enforcement orders to

[ 114 Pa. Commw. Page 356]

    the EHB and then to this Court, which they must strictly pursue, (2) the Declaratory Judgments Act*fn5 specifically provides that relief is not available under it with respect to any proceeding within the exclusive jurisdiction of a tribunal other than a court and, (3) the petition for review fails to state a claim upon which relief may be granted.

Petitioners maintain that their statutory remedy of an appeal of DER's enforcement orders is not appropriate here because they are not appealing an order or decision of DER but rather, are seeking construction of the PBL which they argue the EHB is not competent to do. Petitioners also argue that their statutory remedy is inadequate because they have raised constitutional issues.

We turn now to Respondents' first preliminary objection, that Petitioners may not invoke this Court's original jurisdiction because they have an adequate statutory remedy which is an appeal of DER's enforcement orders to the EHB.

It is clear that at the time the instant petition for review was filed there were three DER enforcement orders pending against Spooner and that Petitioners had appealed those orders to EHB. The petition for review, however, clearly requests construction of the PBL, and other related statutes and does not seek review of those enforcement orders. Moreover, Respondents argue that since permits were subsequently issued, those orders are now moot. Petitioners agree and hasten to add that their challenge to DER's interpretation of the PBL is still existent. Since it is clear that Petitioners' instant action does not involve an appeal of a DER order, Petitioners are not required to pursue their statutory remedy.

[ 114 Pa. Commw. Page 357]

Accordingly, Respondents' first preliminary objection is overruled.

Respondents' next preliminary objection, that declaratory relief is not available because this is properly a proceeding within the exclusive jurisdiction of a tribunal other than a court must also be overruled.

The Declaratory Judgments Act (DJA), 42 Pa. C. S. § 7541(c)2 and 3, provides:

(c) Exceptions -- Relief shall not be available under this subchapter with respect to any:

(2) Proceeding within the exclusive jurisdiction of a tribunal other than a court.

(3) Proceeding involving an appeal from an order of a tribunal.

Inasmuch as we have already determined that Petitioners are not seeking here review of DER's enforcement orders but rather are asking us to construe the PBL, we do not believe that this action represents either a proceeding within the exclusive jurisdiction of DER or a proceeding involving an appeal from an order of DER.

Further, we note that Section 7541(a) of the DJA, 42 Pa. C. S. § 7541(a), provides that it is remedial legislation and its purpose is to "settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed. . . ." Section 7533 of the DJA, 42 Pa. C. S. § 7533 provides in relevant part "[a]ny person . . . affected by a statute, . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder." Section 7537 of the DJA, 42 Pa. C. S. § 7537 provides that "[t]he court may refuse to render . . . a declaratory judgment . . . where

[ 114 Pa. Commw. Page 358]

    such judgment . . . would not terminate the uncertainty or controversy giving rise to the proceeding. . . ."

In the present case, we believe there exists a current and ongoing controversy and that the declaratory relief requested would end that controversy. Further, Petitioners have raised a question as to the construction of a statute which we believe is an issue appropriately addressed under the DJA.*fn6 Accordingly, we reject Respondents' second preliminary objection and conclude that this action is proper in our original jurisdiction.

We turn now to Respondents' demurrer. Respondents assert that Petitioners have failed to state a claim upon which relief may be granted because, they say, it is clear, inter alia, that DER had authority to promulgate the challenged lifeguard regulation and DER has authority to enforce the PBL.

[ 114 Pa. Commw. Page 359]

In ruling on a demurrer, we must consider as admitted, all well pled factual matters and we must keep in mind "that a demurrer may be sustained only where the law says with certainty that no recovery is permitted and . . . if there is any doubt about sustaining a demurrer, that doubt should be resolved in favor of overruling it." Pennsylvania State Education Ass'n v. Department of Public Welfare, 68 Pa. Commonwealth Ct. 279, 281, 449 A.2d 89, 91 (1982).

Our review of the PBL discloses that it is primarily concerned with water quality and methods of obtaining permits. See Sections 675 and 676 of the PBL, 35 P.S. §§ 675-676. The PBL contains no express requirement that a lifeguard be present at public bathing premises licensed by DER. However, DER is given power under the PBL to inspect all public bathing places for unsanitary conditions of the water and for any other hazards or dangers. See Section 679 of the PBL, 35 P.S. § 679. We note also that the question of whether DER has authority under the PBL to promulgate its lifeguard regulation was specifically raised but not resolved in Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986). Although that case was decided on other grounds, our Supreme Court recognized that it was questionable whether or not DER had authority under the PBL to promulgate its lifeguard regulation. Id. at 18-19, 507 A.2d at 10.

Accordingly, we cannot say with certainty that Petitioners will not prevail in their litigation and we must therefore overrule Respondents' demurrer.

Order

Respondents' preliminary objections in the above-captioned matter are overruled. Respondents shall have thirty (30) days from the date of this order to file an answer to the petition for review, should they desire to do so.

Disposition

Preliminary objections and demurrer overruled.


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