Berger v. Com., Dept. of Environmental Resources

• Decision Date: 24 April 1979
• Citation: 42 Pa.Cmwlth. 206,400 A.2d 905
• Parties: Warren E. BERGER, Laverne Berger and Middle Paxton Concerned Citizens, Inc., Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent, Pennsylvania Environmental Management Services, Inc., Intervenor.
• Court: Pennsylvania Commonwealth Court

Page 905

400 A.2d 905

42 Pa.Cmwlth. 206

Warren E. BERGER, Laverne Berger and Middle Paxton Concerned Citizens, Inc., Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent Pennsylvania Environmental Management Services, Inc., Intervenor.

Commonwealth Court of Pennsylvania.

Argued Feb. 5, 1979.

Decided April 24, 1979.

Michael Q. Davis, Michael C. Fox, Nauman, Smith, Shissler & Hall, Harrisburg, Terry R. Bossert, Shumaker, Williams, Clark & Wood, Harrisburg, for petitioners.

Dennis J. Harnish, Louis A. Naugle, Karin W. Carter, Asst. Attys. Gen., Harrisburg, for respondent.

W. Jeffrey Garson, Richard Berkman, Dechert, Price & Rhoads, Philadelphia, for intervenor.

Before CRUMLISH, Jr., WILKINSON and MENCER, JJ.

MENCER, Judge.

We have for disposition the preliminary objections filed by the Department of Environmental Resources (DER) to a petition for review filed by two individual residents of Middle Paxton Township, Dauphin County and a nonprofit corporation. The petitioners commenced this proceeding in an effort to object to the manner in which, they allege, DER is reviewing and processing the application of the Pennsylvania Environmental Management Services, Inc. (PEMS) for a permit to construct and operate a sanitary landfill.

Petitioners allege that, upon inquiry, DER employees have stated that the permit application review process would not include consideration of the Dauphin County Solid Waste Management Plan (County Plan), either in its current form or in its future updated form; nor would it include consideration of zoning, population estimates, engineering, economics of the county, highway accessibility, residential proximity, area-wide economic impact, watershed impact, effects on game trails, effects on forest land, and aesthetic values. Petitioners allege that DER's lack of consideration of the aforesaid items in its permit application review process would violate the Pennsylvania Solid Waste Management Act, Act of July 31, 1968, P.L. 788, As amended, 35 P.S. § 6001 et seq., and Article I, Section 27 of the Pennsylvania Constitution. Petitioners admit that DER has not yet completed its review process and has not granted the permit but allege that they will suffer irreparable harm if the review process is allowed to continue in its present manner. Petitioners also allege that DER has failed to enforce the County Plan. Petitioners seek relief under the Declaratory Judgments Act, 42 Pa.C.S. § 7531 et seq., or by injunction or mandamus requiring DER to stop processing the PEMS permit application until the aforesaid information is available and to incorporate this information into its review. Petitioners also request an order in mandamus requiring DER to order Dauphin County to institute the current County Plan.

DER's preliminary objections raise, Inter alia, the question as to whether or not the petition for review here is premature and accordingly should be dismissed.

Petitioners admit, at paragraph 41 of their petition for review, that "(t)he refusal of the Department, through its employees, to give consideration to the information mandated both under the statute, and under the Constitution, does not constitute an order, decree, decision, determination, or ruling by the Department, sufficient to allow your Petitioners to proceed to the Environmental Hearing Board . . . ."

However, petitioners have filed a petition for review under the provision of Pa.R.A.P. 1501(a)(3) which reads:

"(a) General rule. Except as otherwise prescribed by Subdivisions (b) and (c) of this rule, this chapter applies to:

". . .era

"(3) Objections to a determination by a government unit heretofore cognizable in an appellate court by an action in the nature of equity, replevin, mandamus or quo warranto or for a declaratory judgment, or upon writs of certiorari or prohibition."

Thus, petitioners assert that, although DER has not made a "determination" which would be appealable to the Environmental Hearing Board, DER has made a "determination" which would entitle petitioners within the jurisdiction of this Court to relief in the nature of equity or mandamus or to a declaratory judgment. This assertion is made on the definition of "determination" found in Pa.R.A.P. 102 which reads:

" 'Determination.' Action or inaction by a government unit which action or inaction is subject to judicial review by a court under Section 9 of Article V of the Constitution of Pennsylvania or otherwise. The term includes an order entered by a government unit."

The petitioners in their petition for review and at oral argument contend that DER is, through its inaction,...