R. Ziadeh, Acting Sec'y. of the DEP v. PLRB, V.C. DeLiberato, Jr., Dir. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ramez Ziadeh, Acting Secretary :
of the Department of Environmental :
Protection and Acting Chairperson of :
the Environmental Quality Board, :
:
Petitioner :
:
v. : No. 41 M.D. 2022
: Argued: September 14, 2022
Pennsylvania Legislative Reference :
Bureau, Vincent C. DeLiberato, Jr., :
Director of the Legislative Reference :
Bureau, and Amy J. Mendelsohn, :
Director of the Pennsylvania Code :
and Bulletin, :
:
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 19, 2023
Before the Court are the preliminary objections (POs) of Respondents
the Pennsylvania Legislative Reference Bureau (LRB), its Director Vincent C.
DeLiberato, and Director of the Pennsylvania Bulletin and the Pennsylvania Code
Amy J. Mendelsohn (collectively, LRB Respondents) to the Petition for Review in
the Nature of a Complaint for Permanent and Peremptory Mandamus and for
Declaratory Relief (PFR) filed in our original jurisdiction by Patrick J. McDonnell,
Secretary of Environmental Protection and Chairperson of the Environmental
Quality Board (Secretary McDonnell).1 Also before the Court are the POs of the
Intervenors Speaker of the House of Representatives Bryan D. Cutler, Majority
Leader of the House Kerry A. Benninghoff, and Chairman of the House
Environmental Resources and Energy Committee Daryl D. Metcalfe (collectively,
House)2 to Secretary McDonnell’s PFR. Finally, also before the Court is Secretary
McDonnell’s Verified Application for Expedited Special and Summary Relief
(ASR). We dismiss the PFR, the POs, and the ASR as moot.
In a memorandum opinion that we filed in support of our order granting
an Application for Relief in the Nature of a Preliminary Injunction (Preliminary
Injunction Application), we summarized the relevant facts/procedural history of this
case as follows:
On February 3, 2022, Secretary McDonnell filed his
[PFR] against [LRB Respondents]. [PFR] ¶¶12-13; see
also April 20, 2022, Joint Stipulation of Material Facts by
All Parties (4/20/22 Stip.) ¶¶2, 3, 4. The Pennsylvania
Code and the Pennsylvania Bulletin are located within the
offices of the LRB. [PFR] ¶13. The [PFR] alleges that on
November 29, 2021, the Department of Environmental
Protection (DEP), acting on behalf of the Environmental
Quality Board (EQB), submitted to the LRB for
publication in the Pennsylvania Bulletin the “Trading
Program Regulation” (Rulemaking). [PFR] ¶35. Ms.
Mendelsohn, although acknowledging submission of the
1
When the PFR was filed, Secretary McDonnell was the Secretary of Environmental
Protection and Chairperson of the Environmental Quality Board. However, his service in that
office ended on July 1, 2022, and Acting Secretary Ziadeh has been substituted as Petitioner in
this matter pursuant to Pa.R.A.P. 502(b). We continue to refer to Secretary McDonnell for ease
of discussion.
2
Our designation of Representatives Cutler, Benninghoff, and Metcalfe as “House” is for
ease of reference only and does not imply that they are acting on behalf of the Pennsylvania House
of Representatives as a whole.
2
Rulemaking, refused to publish it because the period
during which the House of Representatives had to
disapprove of the Rulemaking had not yet expired. Id.
¶36. On December 10, 2021, Secretary McDonnell again
submitted the Rulemaking for publication. Id. ¶37. Ms.
Mendelsohn and Mr. DeLiberato responded that the
Rulemaking could not be published because the House of
Representatives adopted a December 15, 2021 resolution
disapproving the Rulemaking. Id. ¶38.
The [PFR] avers that the Offices of General Counsel
and of the Attorney General approved the Rulemaking as
to form and legality under the Commonwealth Attorneys
Act[3] and the Commonwealth Documents Law,[4] on July
26, 2021, and November 24, 2021, respectively. Id. ¶¶31,
34. Further, the Independent Regulatory Review
Commission (IRRC) approved the Rulemaking on
September 1, 2021, pursuant to the Regulatory Review
Act (RRA).[5] Id. ¶32. The [PFR] acknowledges that once
the approvals were obtained, the General Assembly had
time in which it could disapprove the Rulemaking. Id.
¶¶74, 75. Pursuant to Section 7(d) of the RRA, after
review by the IRRC, the standing committee of either or
both the House of Representatives and the Senate, within
14 days, may report to the House of Representatives or the
Senate a concurrent resolution disapproving the regulation
at issue. See generally id. ¶76. In this case, the Senate
Environmental Resources and Energy Committee reported
Senate Concurrent Regulatory Review Resolution 1
(SCRRR1) disapproving the Rulemaking on September
14, 2021. Id. ¶77. According to the [PFR], once SCRRR1
was reported from the Senate committee, the House of
Representatives and the Senate had 10 legislative days or
30 calendar days, whichever is longer, to adopt SCRRR1.
Id. ¶75. For its part, the Senate approved SCRRR1 on
October 27, 2021, within the 10-legislative-day limitation.
3
Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§732-101-732-506.
4
Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102, 1201-1208, 45 Pa. C.S.
§§501-907.
5
Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§745.1-745.14.
3
Id. ¶¶81-83. The House of Representatives, however, did
not adopt SCRRR1 until December 15, 2021. Id. ¶89.
Secretary McDonnell claims that the Rulemaking was
approved by operation of law on October 14, 2021,
because the House of Representatives failed to act on
SCRRR1 within 10 legislative or 30 calendar days of
September 14, 2021. Id. ¶88. In other words, the House
of Representatives and the Senate must concurrently
consider a standing committee’s resolution, regardless of
which chamber reports the resolution. The House of
Representatives’ failure to act within the statutory period
resulted in the approval of the Rulemaking under Section
7(d) of the RRA by operation of law, and, therefore, the
LRB Respondents improperly refused its publication. Id.
The [PFR] seeks mandamus relief, that is, an order
directing publication of the Rulemaking in the
Pennsylvania Bulletin. In the claim for declaratory relief,
Secretary McDonnell requests an order declaring that the
LRB Respondents’ refusal to publish the Rulemaking is
contrary to law, the Rulemaking must be published in the
Pennsylvania Bulletin and the Pennsylvania Code, and the
Rulemaking was deemed approved by the General
Assembly. [PFR] at 24. Secretary McDonnell claims that
the LRB Respondents’ interpretation of Section 7(d) of the
RRA, that the House of Representatives and the Senate
review committee resolutions consecutively rather than
concurrently, is incorrect.
Simultaneously with the filing of the [PFR],
Secretary McDonnell filed [the ASR] setting forth
allegations supporting his claim of a clear right to relief
and entitlement to judgment as a matter of law. The [ASR]
explains that expedited review by the Court was required
because the Rulemaking provides for Pennsylvania’s
participation in the Regional Greenhouse Gas Initiative
(RGGI). The RGGI requires electric generation plants
(covered sources) located in participating states to
purchase one allowance for each ton of carbon dioxide
(CO2) they emit. Each state participating in the RGGI
establishes a declining CO2 budget that effectively limits
the total CO2 that the covered sources are permitted to
emit. The allowances are auctioned off quarterly by
4
RGGI, Inc., and participating states receive the proceeds
from the auction. The Rulemaking provides that
Pennsylvania’s proceeds will be used in accordance with
the Air Pollution Control Act (APCA)[6] and the DEP’s
regulations. In 2021, the participating states received
$926 million from the allowance auctions. According to
the [ASR], the LRB Respondents’ refusal to publish the
Rulemaking has delayed Pennsylvania’s entry in the
RGGI and resulted in a loss of approximately $162 million
in auction proceeds and associated air pollution reduction.
The LRB Respondents filed an Answer opposing
Secretary McDonnell’s [ASR]. Summarizing, they
observe that the parties have a fundamental disagreement
in the interpretation of Section 7(d) of the RRA and the
timing/procedure for General Assembly review of
resolutions. The interpretation of Section 7(d) is an issue
of first impression for this Court, and the Court’s
considered disposition of the issue is not amenable to
expedited review. Secretary McDonnell does not have a
clear right to relief regarding his interpretation of Section
7(d) of the RRA, so neither summary relief nor mandamus
relief is appropriate.
The LRB Respondents filed [the POs] to the [PFR]
asserting a demurrer. According to the [POs], Secretary
McDonnell does not understand the legislative review
process for resolutions because a committee may only
report a resolution to its own chamber. If the committee’s
chamber votes to approve the resolution, it is submitted to
the other chamber for consideration. Thus, consideration
of resolutions is consecutive rather than concurrent.
On February 24, 2022, [the House] filed an
Application for Leave to Intervene. Consistent with the
Pennsylvania Rules of Civil Procedure, the House
attached to its Application for Leave to Intervene its [POs]
to the [PFR] and an Answer to Secretary McDonnell’s
[ASR]. In its [POs], the House objects to the [PFR] on the
bases that (1) a controversy did not exist because Governor
Tom Wolf vetoed SCRRR1, and the Senate had yet[, and
6
Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. §§4001-4015.
5
ultimately failed,] to override the veto; (2) an adequate
remedy in the form of a declaratory judgment exists, and,
therefore, Secretary McDonnell has failed to state a claim
for mandamus; (3) Secretary McDonnell fails to state a
claim for declaratory relief because the plain language of
Section 7(d) of the RRA grants each chamber the longer
of 10 legislative days or 30 calendar days to adopt a
concurrent resolution either in the first instance upon
reporting from that chamber’s committee or upon referral
from the other chamber; and (4) Secretary McDonnell’s
claims are barred by laches or waiver. The House asserts
that Secretary McDonnell waited over three months before
filing his [PFR] in this Court despite alleging that the
Rulemaking was approved by operation of law on October
14, 2021. The House’s Answer to Secretary McDonnell’s
[ASR] refers the Court to its supporting brief.
On February 25, 2021, [President Pro Tempore of
the Pennsylvania Senate Jake Corman, Senate Majority
Leader Kim Ward, Chair of the Senate Environmental
Resources and Energy Committee Gene Yaw, and Chair
of the Senate Appropriations Committee Pat Browne
(collectively, Senate)7] sought leave to intervene. Like the
House, the Senate attached a responsive pleading to the
Petition: its Answer with New Matter and Counterclaims.
The Counterclaims have taken this case in a new direction.
The Senate’s first Counterclaim is that Secretary
McDonnell violated article II, section 1[8] and article III,
section 9[9] of the Pennsylvania Constitution when he
7
Our designation of Senators Corman, Ward, Yaw, and Browne as “Senate” is for ease of
reference only and does not imply that they are acting on behalf of the Pennsylvania State Senate
as a whole. In addition, although the Senate leadership has changed subsequent to the November
8, 2022 General Election, with the new parties substituted for the former members of the
leadership, we continue to refer to the foregoing parties who sought intervention for ease of
reference.
8
Pa. Const. art. II, §1 states: “The legislative power of this Commonwealth shall be vested
in a General Assembly, which shall consist of a Senate and a House of Representatives.”
9
Pa. Const. art. III, §9 states:
(Footnote continued on next page…)
6
submitted the Rulemaking to the LRB for publication
before the House of Representatives had time to consider
SCRRR1. According to the Senate, Secretary
McDonnell’s action was an attempt to sidestep article III,
section 9 and usurp the General Assembly’s authority in
violation of article II, section 1. The second Senate
Counterclaim alleges that the Rulemaking is an ultra vires
action in violation of the APCA. The APCA, although
authorizing the DEP to promulgate regulations, sets forth
bright-line limits on the DEP’s powers. By sending the
Rulemaking for publication, the DEP took significant
legal action despite clear statutory prohibitions to the
contrary.
The Senate’s third Counterclaim asserts that the
Rulemaking is an interstate compact or agreement, which
is within the General Assembly’s exclusive constitutional
authority to enter. In addition to this power being
constitutionally reserved to the General Assembly,
Section 4(24) of the APCA specifically states that the DEP
may formulate interstate air pollution control compacts or
agreements for submission to the General Assembly. 35
P.S. §4004(24). In its fourth Counterclaim, the Senate
alleges that the Rulemaking is a tax and that the imposition
of taxes is within the exclusive authority of the General
Assembly. The Senate recognizes that the APCA allows
for the collection of fines, penalties, and fees, including
fees to cover the direct and indirect costs of administering
the APCA. Here, however, the Rulemaking amounts to a
tax. The courts have held that a fee may constitute a tax
where the revenue generated exceeds the costs reasonably
necessary to operate the program. The Senate references
the 2021-22 budget for the DEP of $169 million and notes
Every order, resolution or vote, to which the concurrence of both
Houses may be necessary, except on the questions of adjournment
or termination or extension of a disaster emergency declaration as
declared by an executive order or proclamation, or portion of a
disaster emergency declaration as declared by an executive order or
proclamation, shall be presented to the Governor and before it shall
take effect be approved by him, or being disapproved, shall be
repassed by two-thirds of both Houses according to the rules and
limitations prescribed in case of a bill.
7
yearly participation in the RGGI could generate over $650
million. Finally, the Senate’s fifth Counterclaim is that the
DEP failed to comply with the Commonwealth
Documents Law and the APCA because it failed to hold
“in-person” hearings. The DEP held 10 virtual hearings
and the virtual hearings do not satisfy the statutory
requirement of “in-person” hearings.
The Court directed the parties to file an answer to
the House and the Senate Applications for Leave to
Intervene. Secretary McDonnell and LRB Respondents
consented to the Applications and, therefore, the Court
granted the Applications and accepted for filing the
responsive pleadings attached thereto. On March 25,
2022, the Senate filed its Preliminary Injunction
Application, seeking to enjoin Secretary McDonnell and
the LRB Respondents from taking any further action to
promulgate, publish, or otherwise codify the Rulemaking.
The Court issued a March 29, 2022, briefing
schedule to move Secretary McDonnell’s [ASR] and the
LRB Respondents’ and the House’s [POs] before the
Court for disposition.
***
On April 23, 2022, the Rulemaking was published
in the Pennsylvania Bulletin as the CO2 Budget Trading
Program.
***
On April 25, 2022, after publication of CO2 Budget
Trading Program, i.e., the Rulemaking, in the
Pennsylvania Bulletin, several electric energy generation
companies, a non-profit, and several unions filed an
original jurisdiction action challenging the Rulemaking on
the basis that it is an unconstitutional imposition of a tax,
the APCA does not authorize the Rulemaking, the DEP
failed to hold public hearings on the Rulemaking, and the
Rulemaking is otherwise unreasonable. See Bowfin
KeyCon Holdings, LLC v. Pennsylvania Department of
Environmental Protection (Pa. Cmwlth., No. 247 M.D.
8
2022). Concurrently therewith, the Bowfin Petitioners
filed an Application for Preliminary Injunction, seeking an
order enjoining the implementation, administration, or
enforcement of the Rulemaking.
Ziadeh v. Pennsylvania Legislative Reference Bureau (Pa. Cmwlth., No. 41 M.D.
2022, filed July 8, 2022), slip op. at 2-10 (emphasis in original and footnotes
omitted).
As noted above, we ultimately granted the Senate’s Preliminary
Injunction Application in this case because the Senate had demonstrated a clear right
to relief in its Counterclaims that the Rulemaking violates the separation of powers
doctrine and usurps the General Assembly’s authority to levy taxes. See id., slip op.
at 21-24, 31-34. Additionally, by July 25, 2022 order, we granted the Senate’s
Application to Vacate Automatic Supersedeas, confirmed our July 8, 2022 order
granting the preliminary injunction, and noted that the preliminary injunction
remains in effect.
Regarding Secretary McDonnells’ declaratory judgment claims in the
PFR, this Court has observed:
Petitions for declaratory judgments are governed by
the provisions of the Declaratory Judgments Act [(DJA)],
42 Pa. C.S. §§7531-7541. Although the [DJA] is to be
liberally construed, one limitation on a court’s ability to
issue a declaratory judgment is that the issues involved
must be ripe for judicial determination, meaning that there
must be the presence of an actual case or controversy.
Thus, the [DJA] requires a petition praying for declaratory
relief to state an actual controversy between the petitioner
and the named respondent.
Declaratory judgments are not obtainable as a
matter of right. Rather, whether a court should exercise
jurisdiction over a declaratory judgment proceeding is a
matter of sound judicial discretion. Thus, the granting of
a petition for a declaratory judgment is a matter lying
9
within the sound discretion of a court of original
jurisdiction. As the Pennsylvania Supreme Court has
stated:
The presence of antagonistic claims
indicating imminent and inevitable litigation
coupled with a clear manifestation that the
declaration sought will be of practical help in
ending the controversy are essential to the
granting of relief by way of declaratory
judgment. . . .
Only where there is a real controversy
may a party obtain a declaratory judgment.
A declaratory judgment must not be
employed to determine rights in anticipation
of events which may never occur or for
consideration of moot cases or as a medium
for the rendition of an advisory opinion
which may prove to be purely academic.
Brouillette v. Wolf, 213 A.3d 341, 357-58 (Pa. Cmwlth. 2019) (citations omitted).10
Likewise, with respect to the PFR’s request for mandamus relief, this
Court has explained:
We next address [the landlord’s] mandamus action
as to the occupancy permits and conclude that this issue is
moot because the units are uninhabitable.
Although neither party argues the mootness of the
issuance of the occupancy permits, we may sua sponte
raise the issue of mootness as “courts cannot ‘decide moot
or abstract questions, nor can we enter a judgment or
10
See also Department of Public Welfare v. Kallinger, 615 A.2d 730 (Pa. 1990) (“AND
NOW, . . . the Court, sua sponte, dismisses this appeal as moot.”); Battiste v. Borough of East
McKeesport, 94 A.3d 418, 424 (Pa. Cmwlth. 2014) (“[W]e may sua sponte raise the issue of
mootness as ‘courts cannot “decide moot or abstract questions, nor can we enter a judgment or
decree to which effect cannot be given.”’ Orfield v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012)
(citation omitted) . . . .”).
10
decree to which effect cannot be given.’” The mootness
doctrine provides:
“The problems arise from events occurring
after the lawsuit has gotten under way-
changes in the facts or in the law-which
allegedly deprive the litigant of the necessary
stake in the outcome. The mootness doctrine
requires that ‘an actual case or controversy
must be extant at all stages of review, not
merely at the time the complaint is filed.’”
In this case, the facts have changed. Since the stop
work order was issued more than five years ago there have
been no physical changes to the building and it has
remained unoccupied. Assuming arguendo that [the
landlord] may have been entitled to occupancy permits
when he first applied for them, [he] conceded that the
building and space therein is presently uninhabitable. . . .
Thus, at this juncture, issuance of the occupancy permits
is moot.
Battiste, 94 A.3d at 424. See also Commonwealth ex rel. Davis v. MacLean, 136 A.
240, 240 (Pa. 1927) (“A discussion of the question whether mandamus is the proper
remedy on the facts alleged [is out of place] * * * for the reason that the [application
before us is in a] moot case.”) (alterations in original).
In this case, it is undisputed that the underlying questions of law
presented by the PFR are now moot based on the April 23, 2022 publication of the
Rulemaking in the Pennsylvania Bulletin as the CO2 Budget Trading Program. The
question, then, is whether this case falls within one of the exceptions to the mootness
doctrine.
Again, as this Court has explained:
There are, however, limited exceptions to the
mootness doctrine: “Although we generally will not
decide moot cases, exceptions are made when (1) the
conduct complained of is capable of repetition yet evading
11
review, or (2) involves questions important to the public
interest, or (3) will cause one party to suffer some
detriment without the Court’s decision.” Clinkscale [v.
Department of Public Welfare, 101 A.3d 137, 139 (Pa.
Cmwlth. 2014)] (quoting [Philadelphia Public School
Notebook v. School District of Philadelphia], 49 A.3d 445,
448-49 (Pa. Cmwlth. 2012)). . . .
Where the first exception is concerned, an issue is
capable of repetition but will likely evade review where
“the duration of the challenged action [is] too short to be
fully litigated prior to its cessation or expiration; and . . .
there is a reasonable expectation that the same
complaining party will be subjected to the same action
again.” Clinkscale, 101 A.3d at 139-140 (alterations in
original); [Philadelphia Public School] Notebook, 49 A.3d
at 449. One such situation existed in Philadelphia Public
School Notebook, where this Court found that the issues
presented in the case were moot but would evade judicial
review in the future.
***
This Court has [also] noted that the public
importance exception is very rarely applied. Harris v.
Rendell, 982 A.2d 1030, 1037 (Pa. Cmwlth. 2009), aff’d,
[992 A.2d 121 (Pa. 2010)]. “It is only in very rare cases
where exceptional circumstances exist or where matters or
questions of great public importance are involved, that this
[C]ourt ever decides moot questions.” Id. (quoting Wortex
Mills, Inc. v. Textile Workers Union of Am[erica, 85 A.2d
851, 857 (Pa. 1952))].
***
It is evident that the public importance exception is
very rarely applied, and, where it is applied, the cases
involve concrete harm to society. The examples noted
earlier in this opinion applied the public importance
exception to moot issues that concerned the loss of
educational subsidies for public schools, impacts on
citizens’ ability to register to vote, public school students’
rights to procedural due process before being suspended
for a certain period, and [the Southeastern Pennsylvania
12
Transportation Authority’s] ability to charge citizens
higher prices for public transportation. [The a]ppellants’
supposition that non-accessory signs may at some point
cause a community to seem unattractive is not nearly
concrete enough to warrant our application of the public
importance exception. We, therefore, conclude that the
issue of whether [the City of Philadelphia’s Department of
Licenses and Inspections] may grant a permit for the
erection of a non-accessory sign pursuant to the [City’s]
Ordinance, which has reserved requirements for such
signs, is not one of sufficient public importance for
purposes of triggering an exception to the mootness
doctrine.
Driscoll v. Zoning Board of Adjustment of City of Philadelphia, 201 A.3d 265, 269,
271 (Pa. Cmwlth. 2018) (footnotes omitted).
It is also undisputed that the instant matter raises legal questions of first
impression. Should this remarkable issue of first impression require redress in the
future, there is nothing to prevent an injured party from filing a PFR in this Court
just as Secretary McDonnell has done in this case. In addition, there is absolutely
no indication that Secretary McDonnell himself, or any subsequent Secretary, will
ever be injured by the LRB Respondents in the same manner again. As a result, the
first exception to the mootness doctrine does not apply because “the duration of the
challenged action [is not] too short to be fully litigated prior to its cessation or
expiration; and . . . there is [not] a reasonable expectation that the same complaining
party will be subjected to the same action again.” Clinkscale, 101 A.3d at 139-140(alterations in original).
Likewise, there is no indication that the “very rarely applied” public
importance exception is applicable herein. Driscoll, 201 A.3d at 269. Although the
underlying legal issues are unquestionably important, there is no present “concrete
harm to society” that will occur if this Court refuses to grant the requested relief
regarding the Rulemaking’s publication. Id. Finally, none of the parties will “suffer
13
some detriment” if we deem this matter to be moot. Instead, as noted above, should
a party need the relief that the Secretary seeks in the PFR, the claims may be raised
in a newly filed petition for review.
In short, any determination as to the legal questions that have been
presented in this case would be advisory, and any judgment or decree that we issue
in this matter between the named parties could not be given any effect. Brouillette.
As a result, as the Court of first instance, we exercise our sound judicial discretion
and decline to consider the moot claims that are present in the instant matter. See
id. at 361 (“[A]ny order issued by this Court granting declaratory relief based on the
purported violation of . . . the Pennsylvania Constitution and . . . [T]he
Administrative Code[ of 192911] would be merely advisory. Accordingly, the
[preliminary objections] in the nature of a demurrer with respect to these claims
. . . are sustained, and these claims are dismissed.”). As a result, the PFR will be
dismissed as moot, as well as the POs and ASR filed in relation thereto.12
11
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§51-732.
12
Nevertheless, it is clear that Intervenors’ Counterclaims remain extant. See, e.g., Kaiser
by Taylor v. Monitrend Investment Management, Inc., 672 A.2d 359, 362 (Pa. Cmwlth. 1996) (“A
counterclaim is an independent action brought by the defendant in opposition to a plaintiff’s claim.
It is wholly independent of the transaction upon which the plaintiff’s cause of action is based, and
it represents the right of the defendant to obtain affirmative relief from the plaintiff.”) (citations
omitted); see also Pa.R.Civ.P. 232(b) (“A counterclaim may not be terminated, in whole or in part,
by the defendant, except by discontinuance or voluntary nonsuit, and subject to conditions similar
to those applicable to the plaintiff.”); Manna v. Manna (Pa. Super., No. 1875 EDA 2021, filed
October 28, 2022), slip op. at 8 (“Although Rule 232 is not directly applicable in the instant matter
because [the a]ppellee’s ejectment action was not discontinued or subject to a nonsuit, it provides
support for the notion that a counterclaim may proceed on its own merits independent of the
opposing party’s suit. Additionally, Rule 232(b) demonstrates that a counterclaim is not
automatically terminated when the plaintiff’s suit is resolved but proceeds until it is discontinued
or subject to a voluntary non-suit.”).
14
Accordingly, the PFR filed in the above-captioned matter is dismissed
as moot; in addition, based on the foregoing, the related POs and the ASR are also
dismissed as moot.
MICHAEL H. WOJCIK, Judge
Judge McCullough concurs in result only.
Judge Covey did not participate in the decision of this case.
Judge Fizzano Cannon did not participate in the decision of this case.
Judge Wallace did not participate in the decision of this case.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ramez Ziadeh, Acting Secretary :
of the Department of Environmental :
Protection and Acting Chairperson of :
the Environmental Quality Board, :
:
Petitioner :
:
v. : No. 41 M.D. 2022
:
Pennsylvania Legislative Reference :
Bureau, Vincent C. DeLiberato, Jr., :
Director of the Legislative Reference :
Bureau, and Amy J. Mendelsohn, :
Director of the Pennsylvania Code :
and Bulletin, :
:
Respondents :
ORDER
AND NOW, this 19th day of January, 2023, the Petition for Review in
the Nature of a Complaint for Permanent and Peremptory Mandamus and for
Declaratory Relief filed by Ramez Ziadeh, Acting Secretary of the Department of
Environmental Protection and Acting Chairperson of the Environmental Quality
Board, is DISMISSED as moot; the related preliminary objections and application
for summary relief filed by the parties and intervenors in the above-captioned matter
are likewise dismissed as moot.
__________________________________
MICHAEL H. WOJCIK, Judge