Appeal from Common Pleas Court, Berks County, Honorable Thomas J. Eshelman, Judge.
Kevin J. Sommar, Esq., SOMMAR, TRACY & SOMMAR, Lansdale, Pennsylvania, for appellant.
Kenneth A. Gelburd, Esq., Philadelphia, Pennsylvania, FOR DER.
Catherine M. Bush, Esq., Lancaster, Pennsylvania, FOR HAMILTON BANK.
Before: Honorable David W. Craig, Judge, Honorable Bernard L. McGINLEY, Judge (p.), Honorable Emil E. Narick, Senior Judge
[ 126 Pa. Commw. Page 562]
OPINION BY JUDGE DAVID W. CRAIG
Gunars H. Ramins, a judgment creditor, appeals from an order of Judge Thomas J. Eshelman of the Court of Common Pleas of Berks County that sustained preliminary objections of the Department of Environmental Resources (DER or the department) and dismissed the judgment creditor's writ of execution to the extent that it applied to DER.
The issues are (1) procedurally, whether DER's preliminary objections were untimely, when DER filed them more than twenty days after the expiration of an agreed extension for DER's response to the interrogatories served on the department as garnishee; and (2) substantively, if consideration of the preliminary objections was proper, whether statutory sovereign immunity or the common law doctrine of custodia legis bars a judgment creditor from garnishing funds constituting a bond required to be deposited with the state by a hazardous waste handler as a precondition to its obtaining a permit from DER.
In June of 1984 DER, through its Bureau of Solid Waste Management, issued a permit to Chemical Decontamination Corporation (CDC) pursuant to the Solid Waste Management Act (Act)*fn1 for the operation of CDC's mobile unit for the treatment of wastes containing polychlorinated biphenyls. Because section 501 of the Act required a permit for CDC's hazardous waste treatment facility, section 505(a) of the Act required CDC to post a bond.*fn2 CDC posted a bond
[ 126 Pa. Commw. Page 563]
with DER secured by a $10,000 certificate of deposit, which DER transmitted to the Commonwealth Treasury. Following the expiration of the original permit, after several extensions, CDC applied for and received a new permit, and DER accepted the previously posted certificate of deposit as collateral for the bond relating to the new permit.
Ramins, CDC's former landlord, obtained a confessed judgment against CDC in the Berks County Court of Common Pleas for unpaid rent and costs of collection. In an effort to enforce that judgment, Ramins, in the summer of 1987, secured the issuance of a writ of execution against Hamilton Bank, Reading, and DER for garnishment of the
[ 126 Pa. Commw. Page 564]
"the cash bond filed under the Solid Waste Management Act of July 7, 1980, Act 97," and also issued garnishee interrogatories to DER.*fn3 DER sought and received two extensions the time within which to respond to the interrogatories, the second expiring on August 31, 1987. On October 1, 1987, DER filed preliminary objections in the nature of a demurrer to the writ and attempted garnishment. DER filed answers to the interrogatories on October 16, along with an ...