220 A.3d 723
Pa. Commw. Ct.2019Background
- Act 40 (added to the Administrative Code) directed the Pennsylvania Environmental Quality Board (EQB) to promulgate proposed regulations to meet water quality criteria for manganese under the Clean Streams Law within 90 days of October 30, 2017.
- The EQB did not promulgate proposed regulations by that deadline; DEP issued an advance notice of proposed rulemaking two days before the deadline and later indicated intent to pursue rulemaking through the EQB, but no proposed rule was published by the time of suit.
- Senators Joseph Scarnati and Gene Yaw (the latter also an EQB appointee and Senate committee chair) filed a verified petition for mandamus in this Court (original jurisdiction) on March 29, 2019, naming EQB and DEP and seeking an order compelling EQB to promulgate proposed regulations under Act 40; they also moved for peremptory judgment.
- EQB and DEP filed joint preliminary objections, arguing lack of standing, that Act 40’s 90‑day timing is directory not mandatory, and that DEP has no duty under Act 40; Senators did not amend the petition or otherwise respond to the preliminary objections.
- The Commonwealth Court sustained the preliminary objections for lack of standing, dismissed the petition, and rendered Senators’ peremptory judgment application moot (opinion filed Nov. 12, 2019).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of legislators to sue (legislative/ institutional standing) | Senators claim legislative standing to enforce Act 40 because they participated in enactment and have institutional interests. | Commonwealth argues legislators lack a concrete, personal injury beyond the public interest in law compliance; Senator Yaw’s EQB membership was not pleaded as a distinct injury. | Dismissed for lack of standing; legislators did not allege a direct, substantial, and immediate injury to their legislative powers. |
| Whether Act 40’s 90‑day deadline creates a mandatory duty entitling to mandamus | Senators: statutory 90‑day command creates a clear, ministerial duty and failure entitles them to mandamus. | Commonwealth: timing is directory; other statutes and procedural obligations require deliberation and cannot be overridden; duty is not purely ministerial. | Court treated the 90‑day timing as directory; mandamus inappropriate on that basis (and standing dispositive). |
| Whether DEP is a proper defendant / failure to state a claim against DEP | Senators named DEP but focused on EQB; sought relief against EQB’s nonperformance under Act 40. | Commonwealth: Act 40 imposes duty on EQB, not DEP; Petition fails to plead any DEP duty (misjoinder). | Court dismissed petition for standing; noted DEP’s role in the rulemaking process could be an amendable pleading defect but did not decide merits of DEP misjoinder. |
| Entitlement to peremptory judgment | Senators sought immediate judgment because facts are undisputed and right is clear. | Commonwealth: factual and legal disputes exist; directory nature of deadline and interrelated obligations preclude peremptory relief. | Peremptory judgment denied as moot after dismissal for lack of standing. |
Key Cases Cited
- Markham v. Wolf, 136 A.3d 134 (Pa. 2016) (legislative standing is governed by traditional standing principles; standing exists only for injuries personal to a legislator’s official powers)
- Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975) (traditional aggrievement test: interest must be substantial, direct, and immediate)
- Brouillette v. Wolf, 213 A.3d 341 (Pa. Cmwlth. 2019) (legislator lacked standing where no personal representative injury alleged)
- Fumo v. City of Philadelphia, 972 A.2d 487 (Pa. 2009) (legislators may have standing when their official voting or legislative authority is usurped)
- Womack v. Workers’ Comp. Appeal Bd., 83 A.3d 1139 (Pa. Cmwlth. 2014) (mandamus lies only to compel a ministerial duty; statutory timing is mandatory only if essential to the statute’s purpose or clearly indicated)
- Funk v. Wolf, 144 A.3d 228 (Pa. Cmwlth. 2016) (mandamus is extraordinary relief to compel performance of a mandatory, not discretionary, duty)
- Thayer v. Lincoln Borough, 687 A.2d 1195 (Pa. Cmwlth. 1997) (standard for peremptory judgment: moving party must show right is clear on the record)
- Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Nat. Res., 909 A.2d 413 (Pa. Cmwlth. 2006) (review of preliminary objections is limited to the pleadings and proper attachments)