National Solid Wastes Management Ass'n v. Casey

• Citation: 580 A.2d 893,135 Pa.Cmwlth. 134
• Parties: NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, Petitioner, v. Robert P. CASEY, Governor of the Commonwealth of Pennsylvania and Commonwealth of Pennsylvania, Department of Environmental Resources, Respondents.
• Decision Date: 11 October 1990
• Court: Commonwealth Court of Pennsylvania

Page 893

580 A.2d 893

135 Pa.Cmwlth. 134

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, Petitioner, v. Robert P. CASEY, Governor of the Commonwealth of

Pennsylvania and Commonwealth of Pennsylvania,

Department of Environmental Resources,

Respondents.

Commonwealth Court of Pennsylvania.

Argued May 2, 1990.

Decided Sept. 11, 1990.

Reargument Denied Oct. 11, 1990.

William J. Winning, Curran, Winning & Fioravanti, P.C., Media (Bruce J. Parker and John H. Turner, Legal Dept. of Nat. Solid Wastes Management Ass'n., of counsel), for petitioner.

Amy L. Putnam, Deputy Gen. Counsel, with her, Richard D. Spiegelman, Executive Deputy Gen. Counsel, James J. Haggerty, Gen. Counsel, Gwendolyn T. Mosley, Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., and Ernest D. Preate, Jr., Atty. Gen., for respondents.

Before CRUMLISH, Jr., President Judge, and CRAIG, DOYLE, COLINS, PALLADINO, SMITH and PELLEGRINI, JJ.

PELLEGRINI, Judge.

The National Solid Wastes Management Association (Association) has petitioned this Court for relief from an executive order, No. 1989-8, issued by Governor Robert P. Casey on October 17, 1989, and published on October 28, 1989, in The Pennsylvania Bulletin. The Association asserts that this executive order constitutes a violation of the separation of powers because it allegedly represents impermissible legislation which effectively amends the Commonwealth's resource recovery facility regulatory scheme. The Association seeks a declaratory judgment that the order is unconstitutional or invalid and an injunction against the order's implementation. The Association also seeks mandamus relief compelling the Department of Environmental Resources to comply with the statutorily mandated resource recovery facility permit application process. Before this Court are the preliminary objections of the Governor and the Department of Environmental Resources to the Association's petition for review. We overrule the preliminary objections in part and sustain them in part.

The Governor issued an executive order instructing the Department of Environmental Resources (Department) to cease reviewing applications for resource recovery facility permits and thereby institute an interim moratorium on the issuing of new permits to these facilities, to establish maximum and average waste volume limitations for these facilities, and to require that 70% of the waste volume received by these facilities be generated within Pennsylvania. The Governor cited Article I, Section 27 of the Pennsylvania Constitution, as well as the Solid Waste Management Act, Act of July 7, 1980, as amended, 35 P.S. §§ 6018.101--6018.1003, and the Municipal Waste Planning, Recycling and Waste Reduction Act, Act of July 28, 1988, P.L. 556, 53 P.S. §§ 4000.101--4000.1904 as authority for his action. The Association, which is a not-for-profit trade association dedicated to protecting the interests of the waste management industry and which has two hundred members enrolled in its Pennsylvania chapter, alleges that the Governor's order contravenes the separation of powers by violating Article II, Section 1 and Article IV, Section 2 of the Pennsylvania Constitution. The Association contends that by impermissibly legislating amendments to the Commonwealth's resource recovery facilities' regulatory scheme, the Governor's action derogates the Solid Waste Management Act, the Municipal Waste Planning, Recycling and Waste Reduction Act, and the Department's Municipal Waste Regulations, 25 Pa.Code §§ 271.1--285.222, and in turn harms the operations of the thirty or more waste facilities in Pennsylvania operated by Association members.

The Governor and the Department preliminarily object to the Association's petition for review, asserting that this Court is without jurisdiction to hear this matter both because of the Association having improperly served the petition for review by which this action was initiated and because the members of the Association purportedly affected by the order have failed to exhaust their administrative remedies. The Governor and the Department additionally submit the Association lacks standing to bring this action and that its claim is not legally cognizable.

I

Because failure to comply with Pa.R.A.P. 1514(c), which requires service of copies of a petition for review of a government unit decision to be accomplished either in person or by certified mail, see McNeilis v. Department of Transportation, 119 Pa.Commonwealth Ct. 272, 546 A.2d 1339 (1988), would alone divest this Court of jurisdiction to hear the instant action, Bronson v. Filipi, 107 Pa.Commonwealth Ct. 590, 528 A.2d 1060 (1987), we first address whether the Association's initial service and later attempt to cure its improper service of its petition for review were adequate to invoke the jurisdiction of this Court properly. ¹

The Association's petition for review was filed with this Court on January 5, 1990, and was served by first class mail on the Governor and the Department. On January 23, 1990, a Deputy Attorney General entered an appearance for both the Governor and the Department, and proceeded to file preliminary objections to this action on February 7, 1990. On February 9, 1990, the Association served the petition for review by certified mail on the Governor and the Department. Failure to effect service as prescribed by Pa.R.A.P. 1514(c) is an amendable defect, and we accept the Association's later service as curative. Blackwell v. State Ethics Commission, 125 Pa.Commonwealth Ct. 42, 45, 556 A.2d 988, 991 (1989). The objection as to service is overruled. ²

II

The Governor contends that this matter is not properly before this Court because the Association's members have failed to exhaust their administrative remedies. The exhaustion requirement is a judge-made rule intended to prevent premature judicial intervention into the administrative process. Baker v. Commonwealth of Pennsylvania, Human Relations Commission, 75 Pa.Commonwealth Ct. 296, 462 A.2d 881 (1983), aff'd as modified, 507 Pa. 325, 489 A.2d 1354 (1985). To that end, it is appropriate to defer judicial review where the question presented is one within an agency specialization and where the administrative remedy is likely to produce the desired result. However, the doctrine that administrative remedies must first be exhausted is not so inflexible as to bar either legal or equitable jurisdiction where the available administrative remedy is inadequate to alleviate the injuries sustained. Ohio Casualty Group of Insurance Companies v. Argonaut Insurance Co., 514 Pa. 430, 525 A.2d 1195 (1987), Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). In particular, the exhaustion of administrative remedies is not required where the jurisdiction of an agency is challenged, Cope v. Bethlehem Housing Authority, 501 A.2d 1178, reconsidered, 95 Pa.Commonwealth Ct. 99, 514 A.2d 295 (1985), or where a statutory scheme's constitutionality or validity is being challenged. Barr v. State Real Estate Commission, 110 Pa.Commonwealth Ct. 530, 532 A.2d 1236 (1987).

Central to the issue of whether the Association must exhaust its administrative remedies is the characterization of an executive order. In Shapp v. Butera, 22 Pa.Commonwealth Ct. 229, 348 A.2d 910 (1975), we identified three types of executive orders: (1) formal, ceremonial, political orders, usually issued as proclamations; (2) orders which communicate to subordinate officials "requested or suggested directions for the execution of the duties of the Executive Branch of government;" (3) orders which serve to implement or supplement the constitution or statutes. Only the third class of orders create legally enforceable rights and therefore have the force of law, Pagano v. Pennsylvania State Horse Racing Commission, 50 Pa.Commonwealth Ct. 499, 413 A.2d 44 (1980); only the third class either are authorized by our Constitution or are promulgated pursuant to statutory authority. The authority for an executive order may stem from a specific constitutional or statutory provision or by way of necessary implication. Butera, 22 Pa.Commonwealth Ct. at 235, 348 A.2d at 913.

Consequently, an action invoking judicial review may only be brought with respect to the third class of orders because these orders involve legally cognizable issues and the others pertain to political, and hence, non-justiciable issues. Robinson v. Shapp, 23 Pa.Commonwealth Ct. 153, 350 A.2d 464 (1976). Thus, in Pagano, we indicated that for a challenge to an executive order to prevail, it must be shown that the Governor was without the power to issue the order. Accordingly, it must be alleged that the Governor acted in the absence of either legislative mandate or constitutional authority. As this discussion illustrates, we have treated this third class of orders in a fashion similar to that of a departmental regulation, and characterize them as such.

Challenges to regulations both on constitutional grounds and invalidity have been permitted by this Court as proper under the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541. In Allegheny Ludlum Steel Corp. v. Pennsylvania Public Utility Commission, 67 Pa.Commonwealth Ct. 400, 447 A.2d 675 (1982), aff'd 501 Pa. 71, 459 A.2d 1218 (1983), we held that "[d]eclaratory judgment is the proper procedure to determine whether a statute violates the constitutional rights of those it affects." 67 Pa.Commonwealth Ct. at 410, 447 A.2d at 679. Similarly, this Court in Spooner v. Secretary of the Commonwealth, 114 Pa.Commonwealth Ct. 352, 539 A.2d 1 (1988), held that declaratory judgment is an appropriate procedure by which to challenge, as here, both the propriety and the power to issue a regulation. As this Court in Spooner pointed out, the Declaratory Judgments Act provides that it should be used to "settle and to afford relief from uncertainty and insecurity with respect to the rights, status and other legal relations and should be...