Burd v. Commonwealth

Opinion by

Judge MacPhail,

Petitioners Burd, Soanlon and other named members of the Pennsylvania General Assembly¹ have filed motions for summary judgment in two oases brought in our original jurisdiction for a declaratory judgment and injunctive relief seeking to prevent the Pennsylvania Department of Transportation (PennDOT) from implementing an automobile emission inspection and maintenance program (I/M Program) to control air pollution in the greater Pittsburgh and Philadelphia areas.²

The program is the culmination of two federal suits brought against PennDOT and the Department of Environmental Resources (DER)³ to enforce an inspeetion/maintenanee provision of the state’s air pollution implementation plan, required by the Clean Air Act and its 1970-1977 amendments.⁴ Faced with a cut-off of federal grant funds, the parties entered into a consent decree approved by the Federal District Court on August 29,1978 to implement the inspections either through a franchise system or a private garage system. PennDOT promulgated final regulations for the program on December 22, 1979,⁵ and for the equipment standards on October 10, 1981,⁶ although federal court modification of the consent decree extended the final operational dead-line to May 1,1982.

In October of 1981, the General Assembly overrode the governor’s veto of House Bill No. 456⁷ which prohibited PennDOT or any other executive agency from spending “any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission systems of motor vehicles.”

On January 22, 1982 the Federal District Court held the Commonwealth in contempt of court for failure to implement the consent decree.

The Petitioners, in addition to filing comments in response to the modification of the consent decree and attempting to intervene in the federal suits⁸ instituted these actions challenging PennDOT’s authority under state law to establish and implement the program as well as its authority to expend what they claim are unappropriated state funds to effectuate the plan.

Based on the joint stipulation of facts filed by the parties, we find no genuine issues as to any material fact remaining, thus discharging the first requirement for summary judgment under Pa. R.C.P. No. 1035.⁹

In support of their contention that they are entitled to judgment as a matter of laiw, the Petitioners maintain that PennDOT has no legislative authority to implement the I/M Program.

While it has been argued to us that the status of the cases in the federal courts to which we have previously referred should have no bearing on the outcome of the matter now before us, we must observe that the posture of the case presents a classic confrontation between the federal and state judicial systems. The Commonwealth of Pennsylvania is under a contempt order from a federal court for failure to implement an I/M Program. Petitioners would have us rule as a matter of law under stipulated facts that PennDOT has no statutory authority to establish, implement and maintain an I/M Program and that PennDOT should be enjoined from any further implementation of that program including the expenditure of Commonwealth funds for that program. Were we to enter such a judgment we would be placing PennDOT in the unenviable, and indeed impossible, situation of being subject to an order of this court, the effect of which would be to prohibit PennDOT from implementing the I/M Program at the same time that PennDOT is under a contempt order from a federal court for failing to implement that same program. No agency or department of the Commonwealth should be put in such a dilemma by this Court.

With respect to that part of the motion for summary judgment which asks us to restrain PennDOT from expending Commonwealth funds for this program, we must note that since the General Assembly of which all Petitioners are members has enacted legislation which provides specifically that no public funds shall be so expended, there is little if any effect we can give by way of judicial order to what the legislature has already accomplished without judicial intervention. It seems obvious to us that PennDOT cannot spend money it does not have.

We agree with Petitioners’ contention that the delineation of executive and legislative authority has

been set forth in Shapp v. Sloan, 480 Pa. 449, 469, 391 A.2d 595, 604-05 (1978) as follows:

It is the General Assembly, not the executive branch, which has been given the constitutional power to determine what programs will be adopted in our Commonwealth and how they will be financed. Although this may be done upon the recommendations of the executive branch, the final determinations are legislative in nature. The executive’s function is to carry out those programs authorized by legislation.

Concerning PennDOT’s statutory authority to implement any I/M Program, the parties before us call our attention to several provisions of the Vehicle Code (Code).¹⁰ Section 4531 of the Code, 75 Pa. C. S. $4531, provides as follows:

(a) Compliance with established maximum levels. — No vehicle manufactured in compliance with the requirements of thé Clean Air Act (77 Stat. 392, 42 U.S.O. $1857), or any amendments or supplements thereto, shall have emissions exceeding the maximum permissible levels prescribed by law.

(b) Limitation on alteration of system.— No person shall change or alter the emission control system of a vehicle in such a manner that it fails to comply with the prescribed emissions criteria. It is unlawful for the vehicle to be operated under its own power until a reinspection at an official inspection station establishes its full compliance.

It is difficult for this court to conceive of any clearer authority for an I/M Program than that set forth in the language just quoted. It seems clear to us that there is no way to assure compliance with the requirements of the Clean Air Act other then by inspections as authorized by Section 4531(b).

Petitioners, of course, lay much emphasis upon other portions of the Code. In particular, they note that the predecessor to Section 4701 of the Code, 75 Pa. C. S. §4701¹¹ was Section 834 of The Vehicle Code (1959 Code), Act of April 29,1959, P.L. 58, as amended75 P.S. §834, which read in pertinent part as follows :

(a) Every owner of a motor vehicle . . . being operated in this Commonwealth, shall submit such motor vehicle to such inspection of its mechanism and equipment as may be designated by the secretary, including such emission control systems and devices for which the Secretary of Transportation, in consultation with the Secretary of Environmental Resources, has adopted inspection procedure and requirements which shall, to the extent possible and practical, be consistent with the requirements of the ‘Clean Air Act’. . . . These requirements shall not apply within ninety (90) days after they are adopted, shall not be changed oftener than once a year and shall apply only to those motor vehicles as are required by Federal law or regulation to be equipped with such emission control systems and devices. The inspection of such devices and systems shall commence on the first day of inspection periods. . . . Such emission control systems and devices shall be inspected once a year. (Emphasis added.)

Since Section 4701 contains no language regarding emission controls, nor does Section 4702, 75 Pa. C. S. 4702,¹² Petitioners 'would have us believe that it must follow as night the day that the failure of the legislature to provide for emission inspections in that sub-chapter of the Code relating to “Inspection Requirements” is proof positive that there was a legislative intent .to eliminate such inspections.¹³ Were it not for the provisions of Section 4531¹⁴ we might be inclined to agree, but the question we must ask is what is the purpose of Section 4531 if not to address the motor vehicle emissions problem? We believe the answer to that question is that the Legislature as constituted in 1976 chose to insert a new and separate subchapter in the Code entitled “Safety and Anti-Pollution Equipment”. The most obvious place to insert a provision relating to the inspection of emission control systems was in the new sub-chapter devoted exclusively to safety and anti-pollution equipment. It seems to us that the legislative drafting is very logical and succeeds in preserving the statutory authority for PennDOT to establish, implement and maintain an I/M Program. At the very least, we are unable to say as a matter of law that there is no such authority.

A summary judgment may be entered when a case is clear and free from doubt, when the moving party establishes that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law, viewing the record most favorably to the non-moving party. Pennsylvania Public Utility Commission Bar Association v. Thornburgh, Pa. Commonwealth Ct., 434 A.2d 1327 (1981). We cannot say that the instant case is clear and free from doubt.

Since we conclude that PennDOT has the authority but not the financial means to establish, implement and maintain an I/M Program, we will deny the motion for summary judgment.

Order

Petitioners’ motion for summary judgment is denied.

Amended Oedee

The Petitioners’ motion to amend the order of this Court entered April 14, 1982 is granted and the said order is amended by adding thereto the following:

We hereby certify that this order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of the case above captioned.

Judge Palladino did not participate in the decision in this case.

1 In the Burd case, 1506 C.D. 1981, the Petitioners are members of the House of Representatives; in the Scanlon case, 1762 C.D. 1981, the Petitioners are members of the Senate. The cases have been consolidated by prior order of this Court for the purpose of this decision.

2 On August 7, 1981 a petition for a preliminary injunction was denied by this Court. Subsequently, the Petitioners sought to have the Supreme Court of Pennsylvania assume extraordinary jurisdiction of the eases. That request was denied.

3 Delaware Valley Citizens Council for Clean Air v. Commonwealth of Pennsylvania, No. 76-2068 (E.D. Pa.); United States v. Commonwealth of Pennsylvania, No. 77-0619 (E.D. Pa.).

4 42 U.S.C. §§7410(a) (2) (G).

5 67 Pa. Code §177.1 et seq.

6 11 Pa. B. 3519 (1981).

7 Act No. 1981-99, 71 P.S. §523.

8 By opinion and order filed March 1, 1982 the United States Court of Appeals for the Third Circuit affirmed the order of the Federal District Court which denied Petitioners the right to intervene. Delaware Valley Citizen's Council for Clean Air v. Commonwealth of Pennsylvania and United States v. Commonwealth of Pennsylvania, No. 81-2011 (3d Cir. March 1, 1982).

9 Goodrich-Amram 2d §1035(b) :5 (1976) states that “an agreed statement of facts can be the basis for a summary judgment.” The agreed statement can be treated as admissions on file.

10 75 Pa. C. S. §§101-9701.

11 Section 4701 reads as follows:

No owner or driver shall refuse to submit a vehicle or a mass transit vehicle to any inspection and test that Is authorized or required by the provisions of this chapter.

12 Section 4702 reads as follows:

(a) General Rule. — The department shall establish a system of semiannual inspection of vehicles registered in this Commonwealth. . . .

(b) Annual inspection of certain vehicles. — Recreational trailers, vehicles registered as antique and classic vehicles, firefighting vehicles and motorcycles shall be subject to annual inspection.

(e) Inspection of vehicles reentering this Commonwealth.— Owners of Pennsylvania registered vehicles which have been outside of this Commonwealth continuously for 30 days or more and which at the time of reentering this Commonwealth do not bear a currently valid certificate of inspection and approval shall, Within five days of reentering this Commonwealth, proceed to an official inspection station for an inspection of the vehicle.

(d) Extension of inspection period. — The department may, by regulation, extend the time for any of the inspections required by this chapter for not more than 30 days due to weather conditions or other causes which render compliance with the provisions of this chapter within the prescribed time difficult or impossible.

13 We note that the subchapter relating to “Inspection Requirements” does not specify any of the mechanisms and equipment on a vehicle which must be inspected, but instead limits its scope to the types of vehicles which must be inspected. Thus, emission systems •have not been singled out for exclusion from Sections 4701 and 4702 of the Code. We believe that Sections 4701 and 4702 were not intended to either limit or specify the equipment which may be subject to inspection.

14 The predecessor to Section 4531 was Section 850 of the 1959 Code which read, in part, as follows:

Removal of Emission Control Devices Unlawful. — (a) It shall be unlawful for any person to operate knowingly a vehicle which has been manufactured to comply with the requirements of the ‘Clean Air Act’ ... if any emission conirol device on such vehicle has been removed, rendered inoperative, or altered from inspection requirements adopted pursuant to Section 834 of this act.