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.
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.
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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 ...