*1 ORDER PER CURIAM. NOW,
AND this 29th day July, Emergency Petition for Review of of Stay Grant is DENIED.
954A.2d 1156 GAMING, L.P., Appellant HSP
v. PHILADELPHIA, Appellee. CITY OF Supreme Pennsylvania. Court of
Aug. *3 Vance, Esq., Tsai, James Brian Charles Esq., Ming Stella Shusterman, Esq., H. Christ- Christie, III, Esq., Matthew W. City for Pabarue, Young, Philadelphia, ie, Mortensen and Frank DiCicco. of Phila. Councilmember & Council Conshohocken, A. Stephen McHugh, West Esq., M. Jennifer O’Connor, Phila- Cozen, Esq., Cozen Jacoby, F. Esq., Warren Withers, Lamb, Esq., Esq., Scot Russel William H. delphia; Chester; A. McErlane, PC, Sprague, Richard West Lamb Sprague, Esq., A. Hardy, Esq., Thomas Esq., Charles J. for L.P. Gaming, HSP Sprague, Philadelphia, & Sprague Pratt, Sumner, Esq., Robin Peduzzi Anthony Esq., Michael Dzara, Esq., Pepper Esq., B. David Vincent Amy Ginensky, Feder, Rox- Hamilton, L.L.P.; Esq., Shelley Richard Gerson Smith, Zecca, Diffily, Kelly Mark Susan Esq., R. Esq., anne Philadelphia Department, Philadelphia, City Law Esq., Philadelphia. SAYLOR, EAKIN, CASTILLE, C.J., and BEFORE: GREENSPAN, TODD, JJ. BAER, McCAFFERY OPINION Justice CASTILLE. Chief (1) following whether
This issues: appeal presents license has to issue a under the Dela- lands authorizing construction 321 of June P.L. River pursuant ware (2) (“Act 321”); and, so, if § 14199 whether P.S. in Er- of License Issued Notice of Revocation
Philadelphia’s *4 24, 2008, For the reasons that ror, valid. January dated was follow, indeed did have City we hold and that subject dispute, that is the this issue the license license so issued was City’s attempted revocation invalid. 26, 2006, Pennsylvania Gaming Control December
On 2 Machine license Philadel- a Category Board awarded Slot 122 (aka
phia Gaming, L.P. “SugarHouse”), HSP pursuant the Pennsylvania Race Horse Development and Gaming Act”), § (“Gaming seq. 4 Pa.C.S. 1101 et The Gaming Control Board Adjudication 1, issued its Order 2007. February 2, 2007, Casino, L.P., On March Riverwalk an unsuccessful applicant, petition filed a pursuant review to 4 Pa.C.S. 1204, challenging Gaming Control Board’s Order 17, Adjudication. 2007, July On the Gaming Control Board’s Adjudication Order and was affirmed this Court. River Bd., walk Gaming 505, Casino v. Pa. Control Pa. A.2d (2007). Chapter Pursuant to 14-400 of Philadelphia Code, HSP a proposed Development submitted Plan of City to the Philadelphia’s Planning on March Commission On 22, 2007, May the Planning Commission held a public hearing approved Plan of HSP’s Development. Notwithstanding the Planning approval, Commission’s no action was taken City Council on three bills to the Plan relating Develop- ment.
On October HSP filed a Petition for with Review Court, requesting that an be order issued directing City of Philadelphia to comply Council their statutory duties to implement Gaming Board’s decision license a casino at HSP’s site in Philadelphia. On December 3, 2007, this Court entered a Per Opinion Curiam and Order alia, declaring, inter Plan of Development HSP’s finally approved. Council, HSP v. Gaming, L.P. 595 Pa. (2007), (Dec. 2007). 939 A.2d reargument denied
During pendency of the litigation, HSP submitted application on October 2007 to the of Philadelphia (“Commerce Department of Commerce Department”) for a license permitting construction or improvements on sub- merged lands to Act pursuant Chapter 321 and 18-100 of requested Code. HSP permission to construct upon lands in adjacent the Delaware River immediately property for its permission required casino. Such because (that is, riparian land abutting owner an owner property river) has title to the property up to the low-water mark *5 river, while the retains title Commonwealth below the low- Co., Mfg. water mark. See United States v. Pa. Salt 16 F.2d (E.D.Pa.1926). Act 321 provides: construct, any person persons
Whenever or shall desire to extend, alter, wharf, or or improve repair any building other wharf, in the nature of a or bridge, or other harbor struc- tures, wholly class, situate any city within of the first such director, or person persons application shall make stating the nature extent of such writing proposed and structure, extension, alteration, improvement repair, or and file the office of the plans director the and specifications structure, extension, alteration, showing fully proposed improvement or and or repair, produce his her deed or deeds, title, or other to the premises evidence on which alteration, structure, extension, such proposed improvement or repair is to be erected or if such made,-where-upon, structure, extension, alteration, proposed improvement or repair upon waterway, will encroach director shall give place notice of the time and such hearing application, interested, parties to all by advertising twice week for two weeks, in newspapers general successive two circulation published city, upon within said notice posting director, if premises; said such upon hearing, or hearing without such where such is not hearing required by hereof, provisions approve shall such proposed struc- ture, extension, alteration, improvement or and the repair, plans specification therefor, submitted he give shall his to, assent and issue a license or permit to be recorded in his office, in a book to him kept by be for that purpose, and withheld; such license or permit shall not be unreasonably Provided, repairs, That one necessary costing hundred dol- lars or less and not affecting stability strength or structure, may be made without first a license or procuring permit. construct, or any person persons
Whenever shall desire to extend, alter, erected, improve repair any or structure to be erected, bulkheads, or already ground supported by used, loading or for the used, purpose or already to be vessels; or on or from freight or unloading passengers connected, already physically physically to be structure used, appurtenant connected, already to be used or described, situate with- or structure hereinbefore any wharf class,-and they he or purpose for such of the first any city *6 Building of from the Bureau permit for a applied shall have Building Inspec- Bureau of city, the said said Inspection Wharves, Department the director notify tion shall Ferries, and shall thereafter application, of such Docks and for, shall application only when grant permit applied director, he is of the said which approval received have grant. hereby empowered ordinance, regulate may, by of the first class The cities approval for the license and the license fees and determine of this act. required by provisions 2 14199.1, § 53 P.S. class, Act 321 is the first and is a
Philadelphia city Code, 18-103 of the Section implemented by states: which Wharves, and Ferries Department of Docks responsibilities of the
1. The Home Department under the 1951 the Commerce were transferred to Rule Charter. Di- that the Commerce Preliminarily, we that the asserts note restrictively pre- interpreted "harbor structure” have rector should gaming submerged lands license because of a clude the issuance Statutory Construction upon HSP’s land. The facility is to be built statute, that, phrases and shall interpreting a provides "[w]ords when according grammar to their according and to the rules be construed 1903(a). object § "The of all usage.” 1 Pa.C.S. approved common ascertain and effectuate interpretation of statutes is to and construction Assembly. Every be con- statute shall of the General the intention strued, provisions.” 1 Pa.C.S. give to all of its possible, if effect any 1921(a). Assembly presumed not to intend "is The General v. surplusage.” mere Commonwealth statutory language to exist as (2006). Ostrosky, Pa. 909 A.2d wharf, in the are not defined "pier, or harbor structure" The terms Thus, statute, example, Black's meaning obscure. for their is not but shores of on the Dictionary “[a] defines "wharf" as structure Law waters, brought loading for a vessel can be navigable to which construction, "[a]ny production, include unloading,” and "structure” to parts purposefully artificially up composed of built or piece of work or ed.1999). (7th together." joined Dictionary Law Black’s or pier, wharf before (1) be obtained A shall permit extended, altered, improved built, structure is other harbor existing necessary repairs other than repaired, more than not $300. structure Depart- made to shall be permit for such Application
(2) as the form such Inspections of Licenses ment requires. Department con-
(a) proposed unless shall be issued No permit Depart- regulations conform to struction will ment of Commerce. alteration, im- structure, extension,
(3) If the proposed no waterway, upon encroach repair will provement appli- on the hearing public until a granted shall be permit Commerce, Department held has been cation for two a week twice by notice advertisement preceded circulation general newspapers in two weeks successive City. published
(a) arrange pay for the license shall applicant *7 Li- of Department and furnish the advertisements of such advertisement proof Inspections censes and hearing. prior to per be
(4) of a shall permit for the issuance $1.50 The fee $100,000 for each and $1,000 up of construction $.75 cost thereafter, fee but the $1,000 of construction cost additional is re- hearing a public than where shall not be less $10 hearing no public nor for less than where quired, $3 required. right-of- pier, public public and proposed dock HSP asserts that its ordinary promenade public park fall within
way, and waterfront wharf, there It contends that pier, and harbor structure. of definitions interpretation of the term City's restrictive for the more is no basis interpretation a narrow HSP contends that such "harbor structure." array the wide of the term within Act 321 and disregards the context of Act, including pursuant to the have been issued uses for which licenses sugar refinery on the of a previously for the construction licenses issued statutory language not restrict the agree does We that the land at issue. way adjoining in the property the waterfront use of its landowner’s advocates; zoning local law. is a matter left to City now wharves, part as of the harbor structures piers, or other construction of permitted falls within development of a use (5) The Department Inspections may Licenses and itself contract by remove structure built without 18-103(1) permit required by regula- violation Commerce, Department tions of the the cost be charged against the owner. The take Department may Law costs, otherwise, for the such action collection of lien or bemay authorized law. provisions accordance with the of Act HSP submit- (1) following ted the documents as part Application: of its Development Plan of approved by City Planning 2007; (2) May Commission on a copy the foundation for the permit drawings set Phase I casino and ten- building (3) story parking garage; copy design of the schematic I, documents for the south valet lot parking during Phase promenade greenway, riverfront and and the phases future (4) entertainment complex; casino and a Submerged alia, Application Lands binder inter including, the consolidat- site, ed metes and description bounds the metes and bounds of the site description areas for the submerged which requested, lands license was a public participation and public site, access summary, ownership history for the copy Sale, the recorded Memorandum of Agreement of and a Plan. Survey Consolidation Before the Commerce Department’s hearing scheduled HSP’s Application, Philadelphia City Councilman Frank Di- requested opinion Cicco from the City Philadelphia’s Department Law “on the basis of Application, includ- [HSP’s] the state ing granted where has Application, consider such an applied and how the has authority.” utilized such R. at 443.3 Diaz, Jr., On November Romulo Solicitor L. an opinion regarding issued the authority of the Commerce to act Department upon HSP’s application to issue a *8 riparian City license. Solicitor Diaz provided history of the Department’s authority Commerce to issue licenses sub- lands the merged City within of Philadelphia, and advised specific 3. The citations to the record set forth herein refer to HSP's Review, Support in of through Exhibits Petition for I Volumes V. City the it his that opinion was Councilman DiCicco Act 321. such licenses under the to issue indeed had Id. 15, 2007, of City Philadelphia Department the November
On Naidoff, Commerce, W. Stephanie Director per Commerce During the application.4 public hearing conducted a HSP’s the condition depicted present hearing, presentation HSP’s development the proposed lands and detailed submerged the of publica- submitted affidavits of the lands. HSP notice, as documentation of the as well requisite public tion of notice on the site. regarding posting Wilkerson, Street, Mayor John Joyce the Chief of Staff Gam- Philadelphia Street created the Mayor testified had in 2005 in to the Advisory January response Task Force ing gaming decision to locate two licensed Assembly’s Advisory Task Force City. Gaming facilities within City created to assist the in its “efforts to assure that was done a manner that balanced developments casino in [sic] those of the operators impacted the needs casino with as a R. at 274. On October City communities and whole.” 27, 2005, the Task Force issued a final Gaming Advisory gaming report detailing challenges opportunities City. Philadelphia, adopted by which was Gaming Wilkerson testified that after the Control Board gaming awarded the licenses December of Philadelphia appli the administration worked with two successful cants over months to ensure that the casinos were eleven in a manner consistent developed Gaming Advisory comprehensive goals Task Force’s recommendations and the (“CEDs”) of the Entertainment under Commercial Districts 14-400 of the testified Chapter Philadelphia Code.5Wilkerson Department Department of Licenses and 4. The of Commerce and Inspections municipal departments Philadelphia are within the 3-100(d) Philadelphia City pursuant Charter. created to Section February Philadelphia On Council of the Chapter The ordinance added 14- enacted Ordinance No. 051028-AA. anticipation provisions Code in Gaming of slot machine licenses award Control Board City. zoning created a new classification referred to as The ordinance *9 developers provide that the with the two casino worked City beyond contemplated by for the those protections ordinance, to traf including binding agreements relating CED waterfront, job fic access to the mitigation, public participation residents, City, in lieu of taxes to the payments high benefits quality building design, community agreements R. at 275-76. funding. with Woodcock, Director of the Philadelphia
Janice Executive Commission, had re- testified that her staff City Planning for a license. application submerged viewed HSP’s lands consis- application entirely stated that HSP’s Woodcock of that had been Development approved tent HSP’s Plan with May on further Planning Commission She Planning supported granting stated that the Commission license, by way approving of the lands CED, design as a the Plan of and the rezoning Development, of the R. at 283. project. of Licenses and Murray Department
Robert F. provided testified that HSP had the information Inspections of its required part and forms that were be submitted as permit, exception prereq- for a foundation request from the and the approval Department’s Zoning uisite Unit of that Department, part which were not Philadelphia Water his that the submis- application.6 Murray proffered opinion and of the requirements sion met the Code Inspections of Licenses and to have a foundation Department prerequisite approvals issued once all of the were permit obtained. R. at 283-84. also hearing, Department
At the of Commerce public entertained statements of casino proponents opponents Entertainment Districts. The CED ordinance was "intend Commercial encourage orderly development major facili ed to entertainment plan approved in accordance with an ties and certain other uses development,” interfering Gaming without with the Control Board's 14-401(1); § approved Phila. HSP locations of the casinos. Code. Council, (2007). Gaming, L.P. 595 Pa. 939 A.2d v. Department hearing 6. The Commerce conducts on the license processed by Department application, application while 18-103(2), (3)(a). Inspections. Licenses and Phila. Code DiCicco, regarding including City Councilman development, facility gaming of the licensed impact opinions their business, job waterfront, tourism, convention center use traffic, benefits, development, creation, community residential H. Michael Representative concerns. State and neighborhood raise attempted J. Fumo Senator Vincent O’Brien State authority to Department’s the Commerce questions regarding Keller license; Representative William State riparian issue *10 on the issue. a statement submitted written issued a 27, 2007, Director Naidoff Commerce On November to a HSP permit the license to authorizing decision issuance de- Lands as Submerged use the portion Applicant the Development. respect Plan of With scribed HSP’s of or opinions in favor expressed of those who had statements the casino Commerce opposed development, to authorized noted such not relevant opinions Director Naidoff were her: the task before at focused on whether testimony Hearing largely
Public casino, than location for a rather appropriate is an Site me, grant issue before the narrow which whether land. develop Applicant Submerged license to over the casinos has been decided location Board, beyond my authority it is Gaming Control seq. § 4 1101 et such a decision. See change [Pa.C.S.] 14-405(2) (2007); Chap- § in this (“Nothing Phila. Code.[sic] right Pennsylvania Gaming limit the Control ter shall Development Race Horse [Pennsylvania Board under Act to it Gaming] identify property which will permit Category gaming facility.”). licensed R. at 1462 n. I.7 license, the requested to her to issue
Turning authority that, certain wit- Commerce Director Naidoff stated “[w]hile to consider legal authority questioned nesses ..., concluded the instant Solicitor has application are and the Director City, specifically, Commerce Act, Gaming Gaming 7. Control Board has exclusive Under the determine the of licensed slot machine facilities. location 1304(b)(1). Pa.C.S. authorized state and local law to act on the instant Applica- tion. ...” R. at 1462-63 n. 2.
Commerce Director Naidoff then set forth the following findings of fact:
1. The Application 29, was filed on October 2007. See 1; (“H.T.”) §App. hearing notes of testimony 4, at p. 1. 10- 11.
2. noticing Advertisements the Hearing published were in the Philadelphia Daily Neivs on November 1 and No- 2, 8, 9, vember 12, November November November 13, November the Philadelphia 8, Inquirer on November November November and November and the Philadelphia Tribune on November and 4. See Appli- 1-2, cant Exhs. 10-11. All three are newspapers of gen- eral circulation in Philadelphia.
3. The posted Site was continuously from including October through and including November Applicant See Exhs. 3-4. Premises,
4. The site, former Jack Frost refinery are situated on 22 acres along River, and include Delaware *11 41 Piers North to 48 1; 12, § North. See App. H.T. at 1. p. 18-21.
5. The Applicant Submerged Lands consist of approxi- 12 mately Site, acres immediately adjoining the 52 percent of the total area of the premises. § See App. 1.
6. Applicant proof submitted of title in the form of a Memorandum of Agreement, recorded January Records, the Department of grants which Applicant an existing option buy 7(a); the Premises. § See App. H.T. at 1. p. 20-24. Applicant
7. The also submitted various deeds and related documents of the owners of the several parcels of land that make up proposed casino and a consent to the of filing the Application froto the grantors of the option buy 7(b); §App. Premises. See Applicant Exh. 6.
8. The currently fenced, are Premises vacant and offering no public access to the waterfront or any other portion 9-10; 12,1. 18-21, 24 1. App. p. H.T. at p. Premises. See Exh. 3. completely Lands are also Submerged The Applicant
9. fast land. Id. public from inaccessible in a state Lands are Submerged The Applicant 10. mud, rubble, of previ- and the remains decay consisting 6-8, Exh. 5 at H.T. Applicant ously piers. constructed See 20, 1. 16-21. p. at remaining on no structures ground
11. There are above Land, been and the area has Submerged Applicant Exh. 5 at See public safety. Applicant for reasons fenced 3, 5; 1. 7-10. p. H.T. at Project, Appli- developed the Premises are for
12. As and extend Pier things, other to widen among plans, cant the Laurel Street com- 41; relocate, and extend expand, dilapidated remove the struc- sewer; and bined demolish North; the fill at at and 46 remove tures Piers North; fill between Piers place new end of Piers and North; 43 and 44 construct and 42 North and Piers 1,200 structure bulkhead/high-deck feet approximately a minimum of 2,100 construct public greenway; feet of and outfalls, design storm water and new 36-inch diameter four accessory buildings and the and construct the casino facilities, of test driving loading pilings, including This will involve construction Application. set forth in the § 1. mark. See App. east and the low water both west debris, such aban- Applicant significant 13. will remove features, from the Applicant loading mooring doned that, im- such after Submerged completion Land more Delaware proposed Applicant, provements use. See navigation public River will be available 20-21; 6; 5, 8; 31- pp. pp. H.T. at Applicant Exhs. App. *12 access to Project public ensures Applicant’s proposed 14. dock a including a public the Delaware riverfront at least 50 feet wide public right-of-way pier, landscaped Premises, and a fan-shaped border of the across eastern waterfront public park. 1; App. § See Applicant 5; Exh. H.T., p. 1-3, 14-16, 1. p. 1. 18-20.
15. Applicant is developing the fan-shaped park a man- ner that will expand habitable area for blue crabs and other benthic organisms that are important resources for 6;§ fisheries. See App. Applicant Exh. 8 at 3. 16. The Project also will a ferry include taxi water dock that promote will transit to and from other destina- tions both sides of the C-02, River. See Drawing dated March of Section 3 of the- Plan of Development; p. H.T. at 1. 16-19. Applicant will construct the public greenway and wa-
terfront promenade in a manner that protects the current open adjacent waters to the Premises and encourages the water, free flow of such that after the improvements pro- posed by Applicant the area of the Delaware River where water freely flows be 6; will enlarged. See App. Appli- cant Exh. 8 at 3.
18. Applicant’s projected cost of construction for the por- tion of the Applicant Submerged Lands between the Bulk- head Line and the Pierhead Line is million. $349.76 See Applicant Exh. 8 at 1-3.
19. The improvements proposed in the Application are consistent with the Applicant’s Plan of Development ap- proved by the Philadelphia City Planning Commission Commission”) (“Planning on May 2007, pursuant Chapter 14-400 of the Philadelphia Code. The development of the waterfront trail and access is entirely consistent with objectives and efforts of the Planning Commission to improve access to the Delaware Riverfront for all Philadel- phians. 43,1. See H.T. at p. 7-10.
20. The Application meets the requirements of the Depart- ment of (“L I”) Licenses and Inspections & have foundation permit issued once all of the prerequisite approv- als are obtained. 44,1.17-21. See H.T. at p.
R. at 1463-66.
Commerce Director Naidoff determined that the advertising and posting of the premises had been completed as required, *13 equita- evidence had demonstrated sufficient and HSP applica- concluded that HSP’s premises. title the She ble of the and extent sufficiently detailed the nature tion had extension, alteration, structures, improvement proposed at premises. repair the informa- and Application
After HSP’s consideration hearing, Director Naidoff at the Commerce presented tion Law, inter alia: following made Conclusions current- in the removal of debris Project will result 8. The section and abandoned impeding dangerous ly 10-13. See F.F. waterfront. recreational access Project public create
9. The will does not at Premises that waterfront Delaware River 8-11,13-14, 19. FF. currently. exist See improve, is likely 10. the Delaware River The flow likely increase. See for is fishery and the area available 13-15, 17. F.F. access, Project public not interfere with
11. The does and, fact, actually improves it navigation, fishery at of the Delaware River navigation, fishery, and the stream 10.13-17, F.F. 19. the Premises. See promote taxi dock river traffic. ferry 12. The new will 16. See F.F. Submerged of the Lands Licensing Applicant
13. the use manner the Plan of Project, contemplated by Project, all of the improve aspects will Development, impact development on all will enhance positively recreation, navigation, fishery, and the river for who use 8-11, 13-17,19. commerce. See F.F. factors, the inter- Project public
14. all Weighing 15-17, 8-13, est. F.F. See
R. at 1467-68. findings, Director Naidoff
Consistently her Commerce for “the use of sub- the issuance of license authorized mark to the end merged lands from the low water development point at the easternmost Plan permitted Commission.” R. at Development Planning approved 1469 n. 4. The license subject to specific requirements, (1) including: obligation that construction commence with- (2) months, in 6 payment (3) of the applicable fee, license construction in accordance with HSP’s approved Plan of De- velopment.
Pursuant to Phila. 18-103(4), Code the license fee towas $1,000 be set at per cost of $100,000, construction up $1.50 at $1,000 for each additional $0.75 cost of construction thereafter. Commerce Director Naidoff stated that the fee *14 be would calculated on the amount money that HSP expect- ed to spend on the development of the project over the Applicant Submerged Lands. The total construction costs were calculated as follows:
Applicant has submitted evidence that its estimated con- struction costs on the Applicant Submerged Lands is million, comprising $349.76 million for I $116.45 Phase and million for $233.30 Phase II. The projected cost for Phase II of construction is based on an increase in construction costs of 3.5 percent per I year. conclude that the projected increase is too and take low official notice that Applicant has suggested that the City use for this project an increase the cost of money of percent five per year, figure which I will accept Thus, for this purpose. for the purpose of the calculation, fee I will treat Phase II construction costs as million, increased to bringing $258.01 the total construction costs on the Submerged Lands to million. $374.46 R. at 1469-70. accordance with finding, this the license fee $282,270.00. determined be 27, 2007, On November HSP paid City $282,270.00 the sum of as payment of the licensing fee. R. at 462.
On December Fumo, Senator Representative O’Brien, Stack, Senator Michael J. Representative John J. Taylor, Representative McGeehan, Michael P. and Represen- filed, Robert Court, tative C. Donatucci in a Petition for in the Nature of an Review from Appeal a Final Determina- tion of a Political Subdivision Pursuant to 4 § Pa.C.S. 1506 § P.S. 14202 from the Commerce Department’s deci- license.8 issuance of the approve to authorize and sion December No. EM 2007. On is docketed at That Petition 2007, City Council Petition for Review separate filed a Councilman DiCicco Appeal in the Injunctive Relief Nature Request to 4 Pursuant of a Political Subdivision Final Determination That § 14202 from the decision. and 53 P.S. Pa.C.S. notices of EM 2007. HSP filed Petition docketed at No. 208 in both appeals. intervention filed, Honorable Michael after
Shortly appeals were of Philadel- Mayor in as A. was sworn Nutter mayoral 2008. The administration January new phia Acting Director Naidoff with Commerce replaced Commerce Duane H. Dumb. Director Director Bumb Acting Commerce January
On in Error” of License Issued mailed a “Notice Revocation (“revocation notice”) to The notice stated: HSP. 27, 2007, issued to HSP Gam-
The license dated November
Philadelphia,
Director of Commerce
ing,
L.P.
en-
Inspections,
of Licenses and
Commissioner
River and to
upon
wateiway
croach
Delaware
lands the
Casino
upon submerged
SugarHouse
construct
*15
been
in
Project,
hereby
having
is
as
issued
REVOKED
(30)
Notice,
thirty
days
error.
of the date of this
Within
you may
hearing
a
before the Director of Com-
request
to
challenge
merce to
the basis for this revocation and/or
factors, not
consideration
the Director of additional
by
allow
Council,
Gaming,
City
8.
In HSP
L.P. v.
595 Pa.
939 A.2d
(2007),
compel City
Review to
Council
HSP filed an earlier Petition for
comply
statutory
for the
and the
with their
.awarding
implement
Gaming
duties to
the
Control Board’s decision
Category
granted
request for
2 slot machine license to HSP. We
HSP's
upon City
implement
relief based
Council's unreasonable failure to
the
Gaming Control Board's decision.
matter,
Opposi-
filed an Amicus Curiae Brief in
that
Senator Fumo
Review, asserting
that IISP could not obtain
tion to the Petition
property
in the
bed of the Delaware River
control of or a
interest
river
legislative
the
without state
authorization. We determined that
issue
grant riparian rights
stage of
could not be addressed at that
proceedings as
had not raised that issue in its Petition for
the
HSP
Review.
2. The license clarification, in to authorize purports license need Adjudica- in the Board’s Gaming as described project tion, ap- in the Plan of Development as described and/or Commission, de- City Planning which two proved by project magnitude are not identical. For a of this scriptions ambiguity regarding there must be no controversy, scope of authorization. intent contrary The Director of acted to the Commerce Gaming Control Board and understanding to seek Assembly, expected licensee was
General to encroach into the Assembly right from the General waterways; and that the General Assem- Commonwealth’s stan- bly request apply consider such statewide would date, rights. To the General relating riparian dards en- Assembly granted requested has not the licensee The Director of Commerce’s decision rights. croachment expectation contrary act in contravention of this Gaming Control Board and expectation intent as local residents and the elected Assembly, well residents; and, therefore, not in representing officials those general public. the best interests of the discre- 4. The Director of Commerce should not exercise City’s to resolution of the prior tion to issue a license *16 to negotiations applicant respect with wetlands Department or the Commonwealth Environ- mitigation mitigation Protection’s of an approval mental alternative into the encroachment proposed prerequisite plan, of Commerce The Director waterways. Commonwealth’s manner consistent with in a discretion exercise should in maintenance wetlands. interest overall City’s of the nature moribund previously 5. Given should 321, of Commerce the Director authority under the authoriza- apply to expansively not discretion exercise large scale to authorize a “harbor structure” to permit tion to option allow expansively not to project, casino of title. requirement satisfy to purchase record, including deficiencies current on the 6. Based against license is above, the issuance identified and based interest, issued when particularly public plea- serve at the officials who by City analysis performed of office was term authority whose appointing of an sure expire. about
R. at 1475-76. for the instant Petition filed February HSP
On City’s challenging Review, at No. 28 EM docketed Petition for notice.9 In its the revocation to issue jurisdiction pursu- Review, appellate invokes Court’s HSP Act, as provides which Gaming ant to Section 1506 follows: gam- of casino timely implementation facilitate
In order to 42 Pa.C.S. notwithstanding part, in this ing provided 933(a)(2) government agencies), from (relating appeals exclusive is vested with Pennsylvania Court of Supreme order, of a final appeals consider jurisdiction to appellate or local subdivision political or decision of a determination construction layout, involving zoning, usage, instrumentality size, use of a location, bulk and including occupancy, amount to HSP in the February a check mailed 9. On licensing $282,270.00, fee payment of the purporting refund HSP’s of License January "Notice of Revocation upon based Opposition HSP Gam- Brief in Error.” See Consolidated Issued Relief, Review, Summary Application for ing, L.P.’s Petition C, 1781, Exhibits D. Stay to Pa.R.A.P. Application for Pursuant *17 court, licensed The facility. as appropriate, may a appoint master to hear an under appeal this section. §
4 Pa.C.S. 1506.10 19, 2008, On March this Court directed that the appeals docketed at Nos. 207 EM 2007 and 208 be EM 2007 listed for 3, 2008, oral argument. April On the City filed a “Consolidat- ed Application Consolidation of 28 E.M.2008 207 and With 208 E.M.2007 Pursuant to Pa.R.A.P. 123 and 513.” The City that the requested or, three matters be consolidated alterna- tively, that the City’s Consolidated Brief in Opposition filed HSP’s Petition for Review at 28 EM 2008 also be docketed at 207 and 208 EM City 2007. The noted that it had taken three different on its positions authority to issue the submerged lands license and revoke license while appeals pending. were The further stated that its filings in the matters at docketed 207 and 208 EM 2007 did not reflect its most position recent on the issues. The City asserted that consolidation of the three matters provide would this Court complete City’s view the changing posi- tions, including its latest position, which that position was taken in 28 EM 2008. April
On this Court entered an order holding the City’s application pending disposition of the matters docketed at 207 EM 2007 and 208 EM argument 2007. Oral then in heard Nos. 207 and 208 EM 2007 on April 2008. The City’s request to consolidate the three matters is now hereby granted, order to provide for a comprehensive consideration of the positions different taken the City during the pendency the various appeals, and in order to 933(a)(2), § 10. pleas Under 42 Pa.C.S. juris- the common have courts "[ajppeals government diction of from agencies, except final orders of agencies, Subchapter Commonwealth Chapter under B of 7 of Title action) (relating judicial agency review of local or otherwise." Subchapter Chapter B Agency 7 of Title 2 refers to the Local Law. Law, Agency Under the Local local administrative actions that consti- adjudications subject tute pleas are to review in the courts of common 933(a)(2). under Section See 2 Pa.C.S. con- of the question resolution global speedy facilitate license.11 lands cerning jurisdiction does not have that this Court asserts The notice. from the revocation appeal over HSP’s filed with should have been appeal HSP’s contends that (Appeal of Act 321 court Section pleas pursuant common notice; director; pleas; to common petition from decision that: costs), part relevant provides which hearing; the said decision of by any persons aggrieved Any person director, part, in whole or refusing, granting either *18 alter, erect, construct, extend, to for a license application bulkhead, harbor wharf, or other improve any pier, act, under this structure, thing other matter or or as to decision, the said after the date of may, thirty days within setting proper county, the court of the a present petition petitioner’s ground the facts of the case and the forth complaint....
53 P.S. 14202. Philadelphia decision in relies this Court’s City upon The Partners, City L.P. v. Phil- Development & Entertainment (“PEDP (2007) I”), A.2d 290 595 Pa. adelphia, by pleas the common argument for its that review support jurisdic- may this Court exercise required court was before case, Philadel- Act. In that Gaming § 1506 of the tion under (“PEDP”)12 Partners Development Entertainment phia City Philadelphia’s Depart- had filed an application zoning for a (“Department”) and Inspections ment of Licenses 7, 2008, City Councilman Council and 11. We note that on March Application to Intervene in this matter. The filed an for Leave DiCicco intervene, that, City permitted Council and application “[i]f states opposi- incorporate by reference their DiCicco would Councilmember Ancillary Applications Relief filed in 207 E.M.2007 tion to for [HSP’s corresponding arguments adopt E.M.2007] Summary Application HSP's for in its Answer to made Consolidated Application for response Petition for Review.” See Relief and in to this acknowledge that Council and at 3 n. 2. We Leave to Intervene arguments have that been DiCicco would raise the same Councilman presented by City and considered herein. application for Gaming approved PEDP’s Control Board had 12. Philadelphia Category 2 on December slot machine license registration and use PEDP’s permit. permit application was not made under the set forth in Chapter framework 14-400 of the Philadelphia Code that had been adopted anticipation gaming.
Instead, PEDP’s amended permit application premised was on the for property’s designation zoning, C-3 Commercial requesting permit for an amusement arcade.13 The Depart- ment issued a notice of refusal because the proposed use for an property amusement arcade as its prohibited was 1,000 location feet of regulated was within another use. Un- Code, der the the notice of Philadelphia subject refusal was by Adjust- review Board Zoning Hearing Board”). (“Zoning Hearing ment PEDP sought had review of Board, Zoning notice of refusal Hearing but had the. that a scheduled requested hearing be continued.
During pendency before the appeal Zoning Hear- Board, ing Court, PEDP filed a petition review with this invoking jurisdiction this Court’s under Section 1506 Act. PEDP Gaming requested an order be entered re- versing Department’s notice of refusal and directing permit be issued. The of Philadelphia asserted that the notice of refusal not final or was under reviewable Section 1506 because the Department’s issuance of the notice of PEDP subject refusal to Zoning Hearing review *19 Board under the Philadelphia Code.
This Court determined that the Department’s notice of order, a final refusal was not determination or of a decision political subdivision or local instrumentality within the mean- of ing Section because the relevant of the provisions Philadelphia provided Code for a two-step permitting process, PEDP completed had not the second of step the process. stated: We time, pursuing
13. At the PEDP specialized process same was also the Chapter Philadelphia (relating established under 14-400 of the Code CEDs), zoning the new classification for but those efforts were not procedures relevant to the matter before the Court. The that must be Chapter followed under were 14-400 summarized in En- Philadelphia Partners, Development tertainment and L.P. v. Council the for (Pa.2008) ("PEDP II"). Philadelphia, 943 A.2d 956-57 on a makes Department the the first is decision step Code, De- Philadelphia the the application. Under permit use zoning registra- a or applications for partment accepts refer may sought, applica- the grant permit permit, tion for Board for a certificate Zoning Hearing to the tions Code uses, or notices of refusal. Phila. issue regulated the 14-1702, the decision step § The second is 14-1703. the propriety renders on the Board Zoning Hearing Code, if Philadelphia Under the decision. Department’s Depart- Board the reviews Zoning Hearing the requested, reverse, it, affirm, modify issue decision, and or may ment’s variance, issue or a exception a grant special the permit, 14-1705, Code, §§ Phila. regulated uses. a certificate for 14-1605(4). Further, the 14-1804, under 14-801, 14-802, Board Code, Zoning Hearing decisions the Philadelphia the court of common to the designated appealable are as issues § 14-1807. pleas. Phila. Code. issuance of Department’s at Because
939 A.2d 296. required in the step process the first only notice of refusal was followed, appeal. PEDP’s quashed to be we Philadelphia zoning
In provisions contrast I, in PEDP provisions and distinct analyzed separate Code governing applications Code of Act 321 and the two-step a license not establish for a lands do Commerce. Department review procedure 1506 of specific provisions Section the absence Act, Department from decision appeal Gaming indeed aggrieved by such decision any person Commerce court pleas the common under brought be before would Act, the Gaming Pursuant to Section 1506 of P.S. however, jurisdic appellate with exclusive Court vested appeal notice tion of HSP’s from revocation appeal political order of a has taken from final subdivision been or occupancy, “construction instrumentality involving local location, size, facility.” licensed bulk and use including argument. Thus, reject jurisdictional City’s we City’s notice was Before we consider revocation whether *20 the the issue of whether valid, predicate first must address we to City authority had the issue license authorizing construc- tion on lands of submerged pursuant the Delaware River Act 321. HSP asserts that the Assembly Act 321 specific the granted City authority to license use submerged lands in the Delaware River within the confines of City. HSP also contends City’s that the specific authority was neither nor explicitly implicitly repealed by the enactment (and amendment) of what is Dam and En- now Act, croachments seq. 32 P.S. 693.1 et response, City, noted, as has taken three different positions power respecting to issue lands licens- Act es under 321. In its response Senator Fumo’s appeal (at 27, from the Commerce Director’s November 2007 decision 2007), City 207 EM vigorously authority defended its and the Commerce Director’s decision. The that City asserted Act 321 had delegated to director of the City’s Department of Wharves, Docks Ferries authority and “issue license or for the permit making” erection and “proposed structure, extension, alteration, improvement repair encroach upon will Delaware in Philadelphia [the River]” that the Department Commerce undertook authority City’s after the transition to rule in home 1951.14 (at In the appeal City 2007), filed Council 208 EM mayoral administration, under the City, new filed a motion requesting extension time to file a response. City granted 28, was an extension until January 2008. In the interim, however, January the City filed a Consol- Motion for Mootness in Fumo Appeals idated to Dismiss Council, seeking dismissal based upon City’s issu- 28, 2007, Reply 14. In its Brief and Answer Fumo filed in on December Assembly at 207 EM supplement- noted that the General 29, 1913, by passing May ed its under Act 321 Act No. 261 of City by regulate which authorized the ordinance determine approval required license fees for the license and By under July Ordinance of legislation regulating enacted determining the permits Department fees for licenses or in the Wharves, ordinance, amended, City's Docks and Ferries. The Code, presently codified in Section the Philadelphia 18-803 of which applied by Commerce Director Naidoff to HSP's license her November 2007 decision. *21 anee, date, Notice of self-styled on that same Revocation motion, City in Error. In its the stated that of License Issued a lacked upon City the revocation not based belief the was to issue such a license. authority February the On the motion to denying City’s this Court entered order dismiss. 1, 2008, the filed a Brief February City
On “Consolidated for and Response Applications Summary HSP’s Relief Relief and a in the Ancillary Stay” legislators’ for Application the pleading, City at and 208 EM 2007. this appeals 207 addressed its that the General As- comprehensively position sub- sembly delegated authority had the to issue specifically lands licenses to the to Act al- merged City pursuant legislators’ the its contention that the though City repeated January moot 24th revo- appeals following were rendered cation notice. 22, 2008, February appeal HSP filed the instant at 28
On 7, 2008, EM from notice. City’s 2008 revocation On March filed a Brief in City Opposition “Consolidated HSP Review, Summary L.P.’s Petition for for Gaming, Application Relief, Application Stay Pursuant to Pa.R.A.P. 1781.” In this that it ac- filing, City espouses legal position it knowledges position is different from the had twice taken City The cites enactments previously. intervening now two Assembly February the General passed during of this pendency litigation. Legis. See 2008 Pa. Serv. Act (H.B. (H.B.1621); 2008-4 Act No. Legis. 2008 Pa. Serv. 2008-5 1627). City says legislation proposed The that this was “in direct response City’s riparian issuance of the license to legislation HSP.” The asserts that the makes clear the current that the Assembly’s Assembly view General specifically must license to use the approve any Common- in the The submerged wealth’s land Delaware River. had, has, suggests that it no thereby presently authority argu- issue lands licenses under while alternative, in the that the notice should be ing, revocation if upheld this Court were to determine that did retain authority. vitality such of the question authority joined fully thus properly
conferred in Act appeal. Act 321 is a matter authority under City’s
The issue of the
before enact-
passed
Act 321
construction.
statutory
(“SCA”), 1
Act of 1972
Statutory
Construction
ment
Statutory
Construc-
seq.,
predecessor
§ 1501 et
Pa.C.S.
However,
enactments
subsequent
Act of 1937.15
tion
City’s
or reduced the
having
as
removed
are cited
which
Act,
amended
Safety
Dam
the 1978
ie.,—
Act,
693.1
see
P.S.
Dam
and Encroachments
awarding riparian
recent enactments
seq.,
et
two
entities,
2008 Pa.
to other
see
River
along
leases
Delaware
*22
(H.B.1621);
Act
Pa. Legis.
2008
Serv.
Act 2008^1
Legis. Serv.
to
(H.B.1627),
subject
respect
to the
are
SCA. With
2008-5
statute
1907,
is
that
only question
power
what
Act 32Í
issuing
relevant
to
upon Philadelphia
to confer
purported
question
licenses. That
is resolvable
submerged lands
Prior to enact-
of the statute.
plain language
looking
to statu-
statute
devoted
specifically
of a comprehensive
ment
course,
that
it was well-established
interpretation,
tory
of a statute to
plain language
first to the
courts should look
See,
112 Pa.
e.g.,
Appeal,
intent.
Fox’s
legislative
ascertain
337,
149,
(1886); Phila. & Erie R.R. Co. v. Catawissa
4 A.
152
(Pa.1866).
Co.,
20,
6283,
*35
1866
at
R.R.
53 Pa.
WL
appeal,
in this
argued
to the later enactments
respect
With
Council,
L.P. v.
595
Gaming,
controls.
HSP
SCA
(Dec. 31,
(2007),
reargument denied
Under the to ascertain of statutes is and construction interpretation and Assembly[,] of the General effectuate the intention construed, give if possible, be [e]very that statute shall 1921(a). § In this 1 Pa.C.S. provisions.” to all of its effect of a that the words instructs regard, “[w]hen SCA of it from all the letter ambiguity, clear and free statute are § formerly at 46 P.S. 501 et May P.L. codified Act of seq. 145 pursuing the pretext under disregarded is to be not When, however, 1921(b). § words 1 spirit.” Pa.C.S. is intent Assembly’s explicit, are not the General a statute other than statuto- considering matters ascertained be 1921(c). § 1 Pa.C.S. ry language. be phrases shall provides that “[w]ords
The SCA accord- grammar the rules according [to] construed 1 Pa.C.S. usage[.]” approved their common and ing are that 1903(a). Assembly defines words § If binding. statute, those are Common- in a definitions used (1989). Kimmel, 523 Pa. A.2d v. wealth that SCA, presume the General may a court Under absurd, impossible a result that Assembly does not intend unreasonable; intend to does not violate of execution Pennsylvania; or that of of the United States Constitution to be certain and effective. the entire statute and intends 1922(1)-(3). Pa.C.S. at
939 A.2d 279-80. case, unambiguous language plain In this delegated that Assembly makes clear the General More to issue lands licenses. power clear, by precepts of fundamental over, equally application it is construction, intervening no Act removed statutory Assembly’s expression nor the General recent did power, litigation operate of this to undo during pendency *23 enjoyed the it in November of 2007. authority City when acted 8, 1907, Assembly the enacted several On June General Acts, Pennsylvania. in The addressing riparian statutes law 322, 323, abolished the numbered and which were the Port of The Acts Philadelphia. of of Board Wardens of the Board of between two divided the functions Wardens Navigation Board of separate bodies-the of Commissioners Wharves, Docks, of Department and and Philadelphia the of Act 322 the of Commissioners Ferries. authorized Board River, except the of the use Delaware Navigation regulate Navigation predecessor was the of Board of Commissioners of The 16. Coznmission, 21, by Navigation which was created the Act of June the 1937, P.L. 1960. of that within portion River was Philadelphia —which Wharves, to be regulated by City’s Department of Docks pursuant and Ferries to Act 321.
Act 321 of specifically authorized the director the City’s Wharves, of Department Docks and issue Ferries to licenses permitting the waterways encroachments on and construction on lands. Act long The continued a tradition of delegating control Philadelphia over the Delaware River waterfront within the Act 321 City.17 required director of Wharves, Department Docks and Ferries to conduct a any hearing application for such publication licenses after notice, and directed that the license be “shall not unreason- ably By May 29,1913, withheld.” 53 P.S. 14199. Act 261 of Assembly General supplemented City’s authority by ordinance, authorizing City, by regulate and determine the license fees for the license and approval required under Id. 1915, 8,
By
July
Ordinance
enacted'
legislation
regulating
the fees for
determining
permits
licenses
Wharves,
Department
issued
Docks
Ferries.
ordinance,
The
which
was amended
later
codified
Section 18-803 of the Philadelphia Code.
Charter,
A-101,
Pursuant
the 1951
Rule
Home
Section
Wharves,
responsibilities of the Department of
Docks and
Department
Ferries
vested in the
were
Commerce.
Assembly
General
enacted the Administrative
9,1929,
Code of
Act of April
provided,
P.L.
which
rule,
general
no
department
grant
commission could
interest
land
specific
Commonwealth
without
author-
ity from the
Assembly.
provided:
Code
17. The
local
vested in
to license the
riparian
originated
use of
lands in the Delaware River
with the 1701
Penn,
consistently
Charter of William
been
and has
affirmed
acts of
Provincial
General Assemblies since
In Kusenberg
time.
v.
Browne,
(1862),
development
71 P.S. City’s Department The of the Commerce authority follows submerged issue lands licenses under 321—which recog- construct —was inexorably legislative from the above Attorney of the General nized and addressed Office 78-19, 1978. The Opinion August No. issued on Official Attorney stated as follows: Office of General no. opinion You for a clarification of our official have asked December permits, 77-20 water obstruction dated light authority Navigation in the Commission navigable for the and its tributaries and the Delaware River grant Director of Commerce for licenses for the construction of in the facilities Delaware Schuylkill Rivers below the mark. low-water no. for a Opinion applicant 77-20 stated water permit extending obstruction for facilities below the low- mark of a first navigable water river stream must obtain an easement or in the submerged other interest land below mark. This interest be- legal necessary low-water naviga- cause is the owner of the bed of Commonwealth ble mark. rivers and streams below the low-water Since must be ob- existing requires specific law Assembly grant tained from the General for the such an interest, opinion pointed out that must applicant from the Assembly by obtain such an interest duly enacted statute. whether, question you respect have raised is Rivers, Schuylkill Assembly the General has
Delaware conveyance not for the of an already provided specifically anyone interest in the land to desirous of con- structing extending facilities below the low-water mark those rivers. *25 advised, that the statutes you our and are opinion,
It is for the Assembly the Pennsylvania enacted General for the Delaware Navigation creation of the Commission Director of tributaries and the navigable and its River those Philadelphia empowered of the of Commerce (a license) for an interest the river bed grant bodies mark of construction of facilities below low-water Schuylkill the Delaware and Rivers. 78-19, No. Construction
Attorney Opinion General’s Official Rivers, 438, 8 Pa. D. & C.3d Schuylkill Delaware and Along (1978). 439-40 Opinion
The further stated construct, alter or desiring anyone is our view [I]t Schuylkill into and Rivers extend facilities the Delaware a statute autho- Assembly not seek from the General need submerged interest in the land grant of an rizing is to be done inasmuch as which the construction authorized, statutes, Assembly already has General of the for those Philadelphia, Director of Commerce Philadelphia, and of the river within portions for the River and its Navigation Commission Delaware tributaries, Philadelphia, for outside of navigable portions interest in the bed. required river grant course, Opinion Attorney Id. at 446-47. Of pre- construction question statutory does not control the Statutory peculiarly construction is sented to this Court. Attorney cite the General’s Judiciary. function of the We plain language it consistent only because view construct, Opinion at the time the was rendered. statutory Act, 1978, Assembly Safety enacted the Dam the General 32 693.1 Act 325 of November P.L. P.S. No. repealed those specifically et The Dam seq. Naviga- provisions relating of Act along to issue licenses for lands tion Commission and Philadelphia. repealer outside of The the Delaware River savings clause reads follows: supplements of acts and (a) acts and following parts absolutely: hereby repealed are thereto 140), (P.L. entitled No. The act March lands owning persons any person “An act to authorize water, public high- declared streams of navigable adjoining streams, mills and other upon such to erect dams ways, water-works.” (P.L. 496, 8 of the act of June 7 and
Sections 322), “An act establish a Board Commis- entitled No. naviga- for the river Delaware and Navigation sioners tributaries; jurisdiction ships, over ves- regulating their ble bulkheads, docks, wharves, sels, boats, slips, piers, and basins; first class from cities of the exempting making appropriation provisions; *26 certain of its therefor.” (P.L. 555, 355), 25, “An No entitled
The act of June dams, structures or other regulation act for the providing across, herein, in, or obstructions, along, or as defined or wholly into all streams and bodies water projecting of, within, boundary of the partly forming part or Commonwealth; in the powers certain and duties vesting pur- for this Pennsylvania, Commission of Supply Water for the of the penalties provi- violation pose; providing sions hereof.”
(b) are All other acts or of acts inconsistent herewith parts inconsistency. hereby to the extent such repealed (c) suit, not effect any The of this act shall provisions [sic] any right to enforce or or order instituted prosecution, repealed by or thereof any part abate act any violation this act. added) (footnotes deleted).18 Nota- (emphasis § 693.27
32 P.S. 322 in Act did not Act its bly, Safety displace the Dam rather, 7 and 8. More entirety, repealed only but Sections Act, 1979, Safety Assembly the Dam the General amended Safety Act.” the amended act "the Dam and Encroachments See titled 204, amended, seq. § P.L. 32 P.S. 693.1 et Act 70 of Oct. above, governing repealer provision provision "Permit as well the 693.6, infra, part § requirement,” 32 P.S. which we discuss were original Safety Dam Act. significantly purposes dispute sub the Dam judice, Act Safety expressly purport did not repeal 321, of Act provisions separate governing Act riparian Thus, in Philadelphia. issues the Dam while the regulatory altered structure for the abut- Delaware River Counties, not, terms, ting by Delaware and Bucks it did Assembly’s existing, specific grant affect of au- thority under Act 321. the Dam Safety repealer provision
Since
Act’s
contains
no
of Act
express repeal
City’s delegated authority
presumptively
repeal
survived—unless there
a
of that
implication
general repealer
under the
found in
693.27(b).
32 P.S.
where there is an express repeal
“[E]ven
therewith,
in the later
of all acts
legislation
inconsistent
such
provision
express recognition
is considered as
that those
not inconsistent
remain in force.”
therewith
Commonwealth
Lomas,
(1930)
ex rel. Matthews v.
302 Pa.
153 A.
Reese,
(citing Commonwealth ex rel.
v.
Womer
Pa.
(1928)).
The well-established regarding implied repealer have been into incorporated the SCA. Section 1971 of the SCA statute) (relating implied repealer later states: (a) a statute a purports Whenever to be revision of all upon subject, statutes particular up general sets system covering subject exclusive entire matter of a former statute and is intended as a substitute for such *27 statute, former such shall statute be construed to supply repeal and therefore to all former upon statutes the same subject.
(b) general Whenever a statute a purports establish mandatory uniform and system covering subjects, a class of such statute shall be to supply construed and therefore to repeal pre-existing special local or statutes the same subjects. of class
(c) cases, In all other a later statute shall not be construed supply repeal an earlier statute unless two statutes are irreconcilable.
151 advert Dissenting Opinions The 1 Pa.C.S. Act the Dam between
“inconsistency” they perceive repealer 321, general both the which implicates (c) of the subsection SCA. impliedly a statute has been
The
of whether
question
exclusively question
legisla
a later statute is
repealed by
459,
Pa.
115
Kelly City
Philadelphia,
intent.
v.
tive
(1955).
are not
favored
“Repeals by implication
A.2d
an irreconcilable
unless there be
implied
not be
will
subject matter.”
embracing the same
conflict
statutes
between
‘[bjecause
“Furthermore,
are not favored
implied repeals
Id.
by enacting
a statute
law,
repeal
intent to
legislative
in the
”
Indus,
Blind &
Pa.
clearly
another must be
shown.’
for
Educ.,
Higher
87 Pa.Cmwlth.
Handicapped
Sys.
v. State
(1985).
for
a restriction
The reason
such
485 A.2d
irreconcilability,
judicial finding
implied
absent
obvious:
legislation.
repeal
essentially
would
rewrite
&
v. Sanders
Turnpike
Commission
Pennsylvania
Thomas, Inc.,
(1975), this
implied repeal legislative necessarily later statute language used only where repugnancy provisions an irreconcilable between discloses as to not admit of the earlier statute so inconsistent and those 336 A.2d at construction of the fair consonant two.” 614 n. 10.
152
In that the latter determining act did not impliedly repeal act, the former Pomeroy, writing Justice for the unanimous Court, & Sanders Thomas reasoned as follows: 4 of Act of provide Section 1937 does not that jurisdiction of the Board of Arbitration of Claims shall be exclusive, nor it expressly proscribe does arbitration under Indeed, Act of 1927. the Act of 1937 makes no refer- nothing inherently ence to the earlier statute. There is statutory inconsistent in the existence of distinct two procedures disputes, for the resolution of the same even though may symmetry the result be a lack of in the area. ... Although procedures established statutes two before us differ in a number of respects, they are not one to repugnant the other. the absence of a clear indication, express implied, legislative either intent apply that the Act of shall 1937 to all those cases it covers to the exclusion of the Act of must we legislature it assume intention of the procedures in embodied the two acts are to stand together, providing alternate and discrete methods of dispute resolution for the and those Commonwealth who Thus, contract it. hold that Act we Section 16 of the repealed of 1927 has hot been 4 of by implication by Section of 1937. added). (emphasis A.2d at 64 fact that the Dam Act included a generic general repealer (beyond principle al implied repeal SCA) ways available under the not provide any does added weight finding implied favor an of the never- repeal noted, mentioned Act 321. As the Commonwealth Court has “a clause is not general repealing typically considered an it implied repeal because does not declare the inconsis what is, rather, tency simply but it limits implied repeal only those acts that are inconsistent. Consequently, general is, in repealing many ways, clause limitation on the express to find ability implied repeal.” Mech. Contractors Ass’n v. Commonwealth, (Pa.Cmwlth.2004), 860 A.2d 1153 n. remanded, part, part, reversed 594 Pa. aff'd 573, 139 (2007). 290 Pa. Meyers, v. A.2d 1262 Commonwealth noted (1927) clauses and repealing general A. 374 addressed *29 logical point: the same nothing does repealing a clause may say general that
[W]e
of the statute
would be the effect
than state what
more
of acts
parts
acts
All inconsistent
such a clause.
without
But,
is an
unless there
repealed by implication.
be
would
repealed.
the
act is not
inconsistency,
prior
actual
Given for the General many years, co-existed 321 and which aware, Dam the enacting no doubt was well Assembly authority of to the Act, of specific delegation the Safety to not did Assembly purport Act And the General yet, Moreover, the of Act 321. any portion identify repeal and in its and Act 322 displace did not even Legislature repeal of Thus, 7 and 8 Act were entirety. while Sections to encroach- other of Act unrelated repealed, provisions in- It remained. would be waterways, into navigable ments re- explicitly the Act as interpret Safety to Dam congruous the 8 Act 322 intact leaving 7 and of pealing Sections Act, repeal implicitly of to intending remainder but of clause. general repealer Section 10 Act 321 via Furthermore, Safety not to the Dam it is difficult reconcile 322) (and -just Act 321 Act Act upon Act its effect 321— Safety the Dam be reconciled with Act before could repugnancy it. There no irreconcilable part a of is repealed Dam Act and Act provisions between It perfectly to is specific Philadelphia. always which was to treat areas of logical Legislature for different licensing intact the differently, and leave Commonwealth Indeed, As- General authority specific Philadelphia. political subdivi- makes distinctions between sembly routinely location, size, perceived special their upon based sions may logical it be problems, For some perceived needs. But the legislative scheme. sensible to have a one-size-fits-all identify approve not to the best issue before us is pur- irreconcilability schemes. legislative question poses implying intent to expression legislative repeal tp did Legislature which not undertake ex- repeal In our pressly. judgment, finding here implied repeal in derogation only would be of not princi- well-established ples governing implied repeals, but also of Assem- bly’s specific, express grant Phila- issue delphia lands licenses.
Although ultimately persuaded by we are not the contrary construction offered their Dissenting Opinions, view be deemed may plausible well one resort supported But, i.e., other factors. arena at this where implied least — repeals are disfavored and the implication only arises properly debatable, from irreconcilability question is close and —if finding resolution must favor a that no repeal implied. And, in analysis requiring possible, reconciliation where *30 Mr. respectfully disagree McCaffery’s we with Justice sugges- tion the scope of the Dam general Act and provision but repealer compels one conclusion. This Court that, has legal system dependent noted upon salutary “[n]o know assumption persons persist law could absent a concomitant that those assumption who are inclined to find the found, are capable doing according law so to general, easily principles and clear of construction.” v. Ma- Commonwealth (2005). gliocco, 584 Pa. 883 A.2d 488-89 an Finding implied repealer here requires quite degree a high investi- gation sophistication.
Moreover, the suggestion implied repeal premised upon a perceived overarching, statewide role for the DEP licensing scrutiny does not survive closer implied what an repeal Act, achieve. Pursuant Section would to 15 of the Dam Safety 693.15, § 32 P.S. the DEP’s authority to issue submerged Thus, lands scope. licenses limited in 15 designates Section as the agency authority the DEP executive with the to issue lands submerged projects licenses for of 25 acres or less that meet certain enumerated public purposes, as follows: Projects affecting submerged 693.15. lands of the
Commonwealth for this act to (a) pursuant granted shall be permit No of the Common- lands submerged occupy project any a stream declared or river or lake any navigable wealth an ease- obtained has applicant unless the highway, public act, or pursuant license or lease ment, right-of-way, submerged pursu- lands in such an or interest holds estate Assembly. from the General specific to other ant (b) Gover- may, approval with department or lease easement, license nor, right-of-way, grant navi- any lands of the Commonwealth occupy for public highway, or stream declared lake or river gable is con- dam, or encroachment which obstruction any water of: purpose for the structed
(1) transportation; navigation public improving (2) recreation, trust purposes; or other fishing public environment; (3) or the safety protecting public (4) waste energy production supply, water providing treatment;
(5) aby government service public utility providing coopera- or electric utility or public or subdivision agency tive; or
(6) access water. require other activities which easement, provide license shall lease or right-of-way, Such compensation for the to the Commonwealth payment subject and shall be of its in such amount property the use shall, department terms and conditions as to such Governor, prescribe. approval (c) may project such The total area land which *31 easements, licenses rights-of-way, one under or more occupy to this sec- department pursuant granted by or leases 25 acres. tion shall not exceed
(d) easement, license be may lease or right-of-way, No adversely affect navi- may under this section which granted in lands held right significantly impair public’s gation in trust the Commonwealth. in interest
(e) title, easement, or other right-of-way No other real estate of Commonwealth submerged lands or expressly provided by be as this section may granted except from specific authority Assembly. or other the General § 693.15.19 P.S. for Amicus filed in Fumo v. City the Brief Curiae City’s the DEP stated that the from the Philadelphia, appeal submerged “disputes issuance of the lands license to HSP occupy submerged authorization to lands on one site on the project in for a that does not Philadelphia, Delaware River scope Department’s Submerged fall within Program.”20 License Brief for Amicus at 5 Lands Curiae added). Nevertheless, the DEP that it “has (emphasis offered that casino SugarHouse project currently concluded as is at the heart of this not meet proposed, appeal, which would DEP submerged the criteria for to issue a license under 15(b) (c).” (the Thus, Id. at 9 n. 4. the DEP Section presumed entity responsible overseeing statewide a uni- scheme) tary regulatory appears statewide to read the statuto- ry reposing licensing authority construct as not exclusive disfavored, implied the DEP. are repealers within Given agency asserting the fact that the relevant state is not exclu- under the Dam authority Safety supports finding sive repeal that there no intention to Act 321. was construct, short, nuanced, in to be statutory appears monolithic, and of the conclusion that weighs not this favor had implied repeal, affecting always power no what been reserved for that particularly portion Delaware River It incon- Philadelphia, clearly inherently intended. is not Assembly sistent for the delegate authority submerged pursuant 19. The issuance of a lands license to Act 321 is specific authority Assembly,” "pursuant to other from the General (a) referred to in subsection 693.15. DEP it Brief 20. The indicated that had filed its Amicus Curiae because legislators’ statutory of the state "omission of reference to DEP’s that, licensing program.” lands The DEP further stated "[a]lthough directly appeal, urges it is not at issue DEP this recognize preserve existing honorable Court DEP Sub- merged Program Safety Lands License authorized the Dam Act.” Nothing Brief for Amicus Curiae at 5. in this Court’s affects the decision Act, existing authority Dam DEP's under as well as the 15(b) (c). upon limitations set forth in Section *32 require- statutory certain meeting projects to review DEP dele- Assembly’s specific maintaining the General ments, while subdivision, City as such a authority political gation express repeal an the absence of deem Act 321. We under that to be a reflection Act 321 authority under City’s settled, delegation existing that its intended Assembly intact.21 remain authority to in 6 of the holding Section for our support find further We 693.6, permit- discusses the Act, § which 32 P.S. Safety Dam notable DEP.22 It is provided the Act ting 693.27, the permit- in Section that, general repealer like the (and 1913), but 355 of Act refer to Act 322 ting provisions that again, once suggests, This construct Act 321.23 never distinct, to address purport Act did not Safety the Dam as provides 693.6 Philadelphia. in Section construct existing follows: maintain, construct, modify, enlarge
(a) No shall person dam, or encroachment with- obstruction water abandon department. of the prior permit out the written (b) dam, or encroachment obstruction Any existing water to a license pursuant permit constructed issued 8, 1907 provisions of the act of June compliance to establish a Board of “An act (P.L. entitled 322), No. and its for the river Delaware Navigation Commissioners tributaries; jurisdiction over regulating their navigable bulkheads, wharves, boars, vessels, piers, ships, repealer in McCaffery argument implied supports his for 21. Mr. Justice Assembly has undertak- noting where the General part by the instances (Those Philadelphia. riparian instanc- grant lands within en to leases 2007.) EM legislators’ Brief filed gathered in the state es are But, (and initially), argument of the of HSP we understand the coordinate purport to excise granted did not power Assembly). (including the General powers in the Commonwealth Moreover, power would nothing in the nature there is only entity finding one could act. command grant permit" if a grants power to Act DEP “the 9 of the Section § 693.9. Act. 32 P.S. project complies with the Dam seq., excepted the tidal formerly 291 et codified at 55 P.S. 23. navigable from the tributaries Delaware River and waters of the thereunder, been a focus contemplated and has not permitting process appeal. parties in
docks, basins; slips exempting cities of the first class from certain of its provisions; and making appro- therefor,” (P.L. priation or the act of June No. 355), dams, entitled “An act providing regulation *33 obstruction, or other herein, in, structures or as defined across, or along, projecting into all streams and bodies of within, wholly water or partly forming or part the bound- of, Commonwealth; ary this vesting certain powers and duties in the Supply Water Commission of Pennsylvania, for purpose; this and providing penalties for the of the violation hereof,” provisions shall be deemed to comply with construction and operating permit requirements of this sec- All projects tion. such shall hereafter comply with maintenance, operating, monitoring and other requirements of this act.
(c) dam, The owner of any existing water obstruction or encroachment does not hold a permit who issued pursuant 8, (P.L. 496, to the 322), act June No. or the act of (P.L. 355) June No. shall for apply and receive a permit pursuant to this act on or before January act, After the date of effective all such projects shall maintenance, with the comply operating, monitoring and requirements other this act.
(d) Any permit department issued after the effective date of this act for construction and operation a water obstruction or encroachment shall incorporate authorization normal repairs for and maintenance of permitted structures conducted the original specifications within for the water obstruction or encroachment from original specifications or any repairs and reconstruction a substantial involving structure, portion of the shall require prior written (a). permit department pursuant to subsection omitted) (footnotes added). 32 P.S. 693.6 (emphasis Subsec- (a) (d) (b) tions are forward-looking, while subsections (c) dams, speak “existing” water obstructions or encroach- (b) ments. Subsection those governs structures that were pursuant constructed to a permit under Act 322 or Act (c) structures, subject those governs subsection while Acts, permit. does not hold a the owner same where practical it addresses the significant 693.6 is because Section dams, water upon existing scheme legislative effect new or permitted either encroachments that were obstructions or licensure, licensed, under subject to permitting or were essentially “grandfathered” or Act 355. The provisions (whether or licensed permitted structures existing such (1) not), apply must permit that those without but mandated receive) (2) (and one, that, going automatically will Dam Act’s forward, must “projects” comply all such maintenance, and other monitoring requirements. operating, not refer to 6 does Again, permit requirement Section with, to, permits subject compliance licenses or or issued such Act 321. cannot assume that the absence We oversight by a result of or mere ignorance reference was of, is, it is reflective Assembly. As consistent *34 with, repeal intention not to Act 321 Assembly’s the General passed. permit require- the Dam The when not ment referred to Act did provision, which never eviscerate Act 321. passed that the statutes City’s position says latest two Assembly February granted which General for residential
submerged property lands licenses owners in of matters.24 developments City Philadelphia, change agree. cannot We Acts, Assembly February
Pursuant to those General Services, of Department authorized and directed the General of of Environmental Department with the concurrence Protection, leases, following to enter into the one with VTE Associates, L.P., L.P., and one Philadelphia, with NCCB nominees: “for an initial term of 99 land within years, their in City Philadelphia, the bed of the River Delaware all or period any portion to extend the leased to 99 The Acts up years.” for an additional term premises copies DiCicco submitted of the two Council and Councilman Application in statutes as Exhibit B to their to Intervene filed this matter. lessee, all grant lease shall provided “[t]he successors, sublesses, right to use above- assigns assign or to the lease or sublease or premises, described for the premises the sublease above-described permit accessory of one residential tower with proposed development restaurant, as as marina and mari- parking garage and well further time uses all consistent with access.” The Acts public leases authorized or referred to under this provided “[a]ll condition, subject under and to the section shall be made documents, in that no shall be contained the lease which shall used as a licensed portion parcels facility be in 4 ...” of the Act. The Gaming defined Pa.C.S. subject immedi- authorized under the Acts would be leases any “should be used” for any portion parcel ate termination that purpose. “Affir- of each of the Acts included an identical
Section authority Assembly,” of General which mation exclusive affirms its exist- Assembly hereby stated that: “[t]he authority specifically sole and exclusive consider and ing, easement, title, conveyance right-of-way authorize the lands....” As the or other interest Commonwealth-owned notes, obviously eye this was included with provision pending litigation concerning this Court HSP’s Notably, signing lands license. his statement statutes, G. Rendell ad- approving Governor Edward “affirmation,” litiga- and the legislative pending dressed tion, as follows: instance, governments issue of local whether
[T]he —in grant have some —also *35 their is rights along wateiways abutting boundaries riparian subject, the before the Penn- currently litigation pending result, As a I think it is sylvania Supreme Court. unwise subject. position regarding for of us to articulate a this on these bills should not be Consequently, my signature Rather, I against position. as for or this my support viewed above, bills, mentioned in to signing am the as order move the underlying projects expeditiously. forward
161 at 1.25 Statement Signing Governor’s statutory course, interpretation the proper Of resolving controversy brought a purposes provisions Judiciary. is entrusted to before the courts a matter concerning Moreover, legislative body, later the statement passed of an meaning scope enactment intended no deference- particular is entitled to legislative predecessors, old century issue is legislation at over particularly when 821) (as (in in case of Act three decades old case of amendment). legisla The current Act the Dam it that appears is even since it persuasive tive declaration less intended, to influence the decision at least in part, was individual appeal brought by pending appeals, including Legislature. members create legislature that the cannot elementary
“[I]t legisla retroactively passing ‘clarifying’ authority simply by must be legislature The intent determined tion. v. St. Lead Co. original passed.” Joseph act time was 638, (1959). Further Pa. A.2d 642 Twp., Potter v. more, Drake Co. Gas Sphere Insurance (2001), Works, stated 566 Pa. 782 A.2d Court statutory construct language that the of the statute plain controlling, enacted are legislation that existed when Supreme Justice Scalia’s observation quoting U.S. Court like subsequent legislative history, “[ajrguments based taken arguments futurity, based on antecedent should not be the General Notably, not even in a footnote.” seriously, it not to much less did Assembly purport repeal did make have a repeal to purport repeal provision course, Assembly global retroactive effect. Of change the litigation or to court decisions and may react cannot arro Assembly law But the General going forward. Judiciary legislation gate interpret Thus, pending the outcome of cases before the courts. control enactments, intent, simply whatever their legislative by HSP as signing has been submitted Governor Rendell's statement Opposition Application Answer for Leave Exhibit A to its by City in this matter. filed Council and Councilman DiCicco Intervene *36 no effect on have this Court’s interpretation of the meaning vitality never-repealed Act 321 at the time the City it, upon acted in November 2007. Accordingly, we conclude that the City was correct it originally when asserted that the Commerce Director plainly had the power under Act 321 to authorize issuance of the submerged lands license on Novem- 27, ber
We next turn to the issue of City’s whether January 2008 Notice of Revocation of License in Issued Error reasons, was valid. For the following we conclude that the revocation notice was invalid. Review,
In its Petition for HSP asserts that the revocation notice was void ab initio because: (1) it was issued while from appeals Commerce Director Naidoffs November Court; (2) decision pending were before this the doctrine of estoppel prohibits from reversing position its support- ing issuance of the license and that the City had the (3) license; issue the the revocation notice is unreasonable and an abuse of discretion as it was based on grounds extraneous to Act and there is no evidence that Commerce Director error; Naidoff issued the license (4) assuming, arguendo, even that the license was issued in error, HSP has a vested right the license. notice,
Respecting that, its revocation asserts un- it power der had the to revoke the license discretion. The City argues that support its proposition that the license issued HSP is revocable may be found in an excerpt from the Attorney Opinion General’s Official No. 78- 19, supra, because the Office of Attorney General described the license as “revocable:”
It is our that the view General Assembly did not intend in these various statutes that title or any interest beyond simple revocable license be granted to the applicant by Director of Commerce or Navigation Commission to whom delegated that authority by Assembly. 8 Pa. D. & C.3d at 446. As previously, noted the Attorney General’s Opinion Official addressed whether the existing empowered Navigation construct Commission statutory Philadelphia’s grant Director of Commerce to licenses for the construction facilities below low-water Schuylkill mark Rivers. Delaware Attorney Opinion do not General’s We believe *37 the of a of revocation. supports City’s assumption power broad the be in the context excerpt by City The cited must examined General, the Attorney of the issue the as well as addressed the immediately precedes excerpt: statement that in requirement It is our that the the opinion therefore statutes, currently directed to the including various those Director of for the and the City Philadelphia Commerce Navigation Commission for the and its Delaware River tributaries for the navigable production evidence of own- ership ground of the refers to the land riparian involved not the river below the low-water mark. It is our bed view Assembly that the General did not intend in these vari- any beyond simple ous statutes that title or interest a granted applicant by revocable license be Navigation Director of Commerce or Commission to delegated authority by whom was that the General As- sembly. added).
Id. at
(emphasis
City
The
the Attorney
phrasing
construes
General’s
out of
reveals,
context. As the context
the Attorney General was
contrasting
other,
the license
authorized
the Act with
greater property interests. The
General’s
Attorney
Opinion
stated that the licensing procedure before the
Director
City’s
of Commerce authorizes the construction of obstructions below
owner,
mark
aby riparian
low-water
land
and that
“[i]t
conjunction
riparian right
owner
with a license
that
legalizes
existence
an obstruction.” 8 Pa. D. &
Commonwealth,
444 (citing
C.3d at
v.
Philadelphia
284 Pa.
(1925)).
225,
In even that it has City’s argument support be construed to could revocation, persuasive be Opinion would power some authority existing in some grounded the extent it was only to a issuing Presumably, power. recognizing issuance, a power and even reserve could condition its license revocation, Notably, temporal a impose .limitation. it lands license issued that the City argue does not unilateral, uncondi- power of 2007 reserved November identified tional, Nor has the “discretionary” revocation. Code, or of of Act any provision power the broad revocation authority, recognizes other upon. it insists here, presented in the circumstance prevail
For unlimited virtually power. recognize have we would case, the license after revoke purported *38 the Director completed, had been licensing proceedings license, after the issuance of the approved had Commerce passed. the had approval to file an from appeal the period interest had arisen issued after a reliance The revocation was after The also was issued in of the licensee. revocation favor the Director’s decision been filed from Commerce appeals had license, the appeals lands while were the to issue For hearing. notice or and it was issued without pending, decision, record is with evi- replete and as the purposes reliance, that the reliance interest are satisfied dence of we the revocation invalid. enough purported to render alone was the to issue the license City Act 321 authorized summary, Director of duly authorized Commerce in this case. forth the set requirements that had satisfied determined HSP 18-103, the and concluded that and Phila. Code in Act 321 The Director of Commerce’s be issued to HSP. license should are amply supported of Law of Fact and Conclusions Findings notwithstanding of the before proceedings the record by her — there recognize that of her successor. We the different view but Philadelphia; office in in change has the executive been a City of Commerce for the current Director view exercise legitimate or undermine the not affect does former Director of Commerce.26 authority reposed City’s that conclude foregoing, we upon Based 321 to under Act authority had the of Commerce Department HSP, license to submerged lands the November issue of Revocation 2008 “Notice City’s January and that the hold Accordingly, we Issued Error” was invalid. License is valid. that the license so issued in the did not participate GREENSPAN
Madame Justice of this matter. consideration decision join EAKIN and BAER and Justice TODD Justice opinion. file dissenting
Justice SAYLOR and McCAFFERY opinions. SAYLOR, dissenting.
Justice I relevant under City’s Because believe that the clause extinguished by general repealer 321 was indeed, Act of Dam and Encroachments 1978—and the Dela- never included encroachment into scope within wharves, for facilities other than and similar piers, ware River that lacked the harbor structures —I find would instance. power to issue the license the first disputed I Accordingly, respectfully dissent. argument
To its central was author- support it a Assembly license to encroach grant ized River, As into the Delaware HSP relies Act 321 of 1907. however, majority, shortly Attorney after the noted Opinion his retained such stating General issued *39 En- Legislature Safety the Dam authority, passed Act”).1 (the my “Dam In Safety croachments Act of remaining disposition, light of our we need not address HSP's 26. regarding invalidity revocation arguments notice. amended, (as No. 325 32 P.S. Nov. P.L. Act of 693.1-693.27). §§ opinion, enactment had the effect of removing from the any it had as referenced Opinion the Attorney General. terms,
According express the Dam Act’s Safety pur- poses are to provide for state regulation all obstruc- water tions and encroachments in the Commonwealth order to health, protect safety, and welfare of the people and property; protect the natural resources and environmental rights secured the state Constitution and conserve the quality, regime water natural and carrying capacity water- courses; and to proper construction, assure planning, design, maintenance, and monitoring water obstructions and en- croachments, in prevent order to unreasonable interference and protect navigation. § water-flow See 32 P.S. 693.2. Its scope broadly delineated to include obstruc- water “[a]ll in, tions and ... encroachments along, located across or watercourse, projecting any into floodway water, or body id, temporary whether or permanent,” § 693.4 (emphasis added); id, § see also 693.3 (defining any watercourse as “channel of conveyance or surface water having defined bed ”), and banks ... and its permitting state-level requirements apply id, 693.6(a) an equally comprehensive fashion. See (“No construct, shall person operate, maintain, modify, enlarge dam, or abandon any water obstruction or encroachment the prior without written permit of the [Pennsylvania Depart- Protection].”); id, ment of Environmental 693.3 (defining water wharf, obstruction to include any pier, abutment any in, across, other structure located along, into projecting watercourse). Thus, the General Assembly enacted the Dam Act to provide for a system uniform by which encroach- ments into all waterways of the are Commonwealth to be regulated overseen and at the state level.
Indeed, the passed act was a mere three months after the issuance of the Opinion General, the Attorney it making reasonable that it suppose represented a reaction to that opinion designed to provide for a comprehensive state-wide system regulation of water encroachments throughout Commonwealth. Not only did it absolutely repeal Sections 7
167 693.27(a), expressly § it also see of Act 32 P.S. 8 authority the sole reserved to Commonwealth submerged lands: of occupation in sub- easement, other interest title, or right-of-way
No of estate the Commonwealth lands or other real merged this section except expressly provided by granted may be Assembly. from the or specific authority other is consistent authority This § 32 693.15. reservation P.S. act above. objectives of the as outlined legislative with the repeals Dam Act Safety observes that majority The similarly repeal Act 322 but does not portions absolutely, Legisla- from that majority Act The concludes this unaffected. See completely ture intended to leave Act 321 (“We at deem the op. at 954 A.2d 1179 Majority Opinion, Act City’s authority under express repeal absence of an intended that Assembly 321 a reflection that the General to be settled, remain existing delegation intact.”). However, contained repealer clause general Act or Safety parts the Dam states that other acts “[a]ll repealed to the extent hereby acts inconsistent herewith are (to 693.27(b). inconsistency.” § such P.S. It seems evident 6(a) of me Act inconsistent that 321 is with Section anyway) Act, at least to extent Act would Safety Dam to build unilaterally license HSP otherwise allow mark. beyond out the Delaware See into River low-water id., 693.6(a) from constructing, oper- (prohibiting any person any maintaining, enlarging, abandoning ating, modifying, prior obstruction encroachment without the written water Protec- of the state Environmental permission Department tion). Therefore, general repeal- Act 321 nullified that, *41 question
irrelevant to the of whether Act 321 survived Act, Dam Safety or otherwise constituted “other specific au- thority” from the Assembly, such that Act 321 licen- 693.6(a) (On sees would be eligible to receive a Section permit. moreover, point, this I agree with Mr. McCaffery Justice that Act 321 is general, specific, not authority, as it does not designate any particular tract of land for licensing.)
This question raises the why Legislature did not elect to repeal Act 321 as it “absolutely,” parts did of Act 322. The emerges 321, answer a upon reading entirety of Act grants powers which to the are unrelated to en- croachments into navigable waterways. 9 of that Section statute, for example, Wharves, authorizes the Director of (now Docks, Commerce) and Ferries the Director of to acquire reclaimable, unimproved, but marshlands that lie wholly with- in the City “between the low-water line and the high-water shore-line of’ such waterways. 53 P.S. 14197. The act also empowers the director to demand that the owners of harbor structures their keep facilities clean and free obstructions— or, to hire alternatively, others to clean and clear them and id., charge cost back to the owners. See 14196. There are also reporting requirements, any number of other provisions in Act 321 that are beneficial in themselves and are entirely consistent Legislature’s with the repose decision to all licensing and permitting power within the Commonwealth government for the building of encroachments into the river in the first instance. The General Assembly could reasonably have found it salutary leave these measures in place by not toto, repealing Act 321 in but only to the extent of its inconsistency the Dam Safety with Act—a goal evidently accomplished through wording of the general repealer Hence, clause. I do not share the majority’s that the view in the same manner Act 321 repeal expressly mere failure to it unaffect completely intent to leave as Act 322 evidences subject, more there doubt ed. To extent City’s existence over, against the it must be resolved v. See Denbow question. the license issue 567, 576-77, A.2d Pa. of Leetsdale, 556 Borough (Pa.1999) powers no inherent corporations have (“Municipal has things Legislature do those which may only their necessary implication placed within by expressly doubt as existence Any fair, to do.... reasonable power against in a is resolved courts power municipality added)); Kline v. accord (emphasis its existence.” (1949).2 184-85 Harrisburg, Pa. 68 A.2d treatment of the majority’s I Additionally, differ Protection. Department of Environmental statements agency indicates the amicus brief submitted Although in the convey an interest position it not be in that would “easement, of an in the form question lands Act, minimum, at provisions I Dam 2. would find that the portions of Act give to a doubt that the 321 at issue rise substantial *42 (Indeed, granted to at the time the license was HSP. remained effect envisioning Legislature how the could have been more difficulty I have comprehensive precisely explicit scope than to do what the intended i.e., applies navigable to Dam all specify it that the did— Commonwealth, including Delaware 32 in the River. See waters 693.4, 693.12(a).) uncertainty, majority empha- § As to P.S. such disfavoring implied statutory repeals. principle sizes the construction however, noted, be is often the case—there are It should that —as Leg- multiple principles of involved here. The competing construction against presumed power municipali- to islature is ties, to intend retain its as that doubts munici- giving thus rise to the rule noted above about regard, authority against In pal resolved their existence. are Turnpike although majority Pennsylvania Comm'n v. references Thomas, (1975), support Pa. 609 to Sanders & 461 336 A.2d here, repeals principles regarding implied control determination that any competition local case involve between state and that did not thus, weigh provide power, not for this Court to did occasion against other. As between these these two of construction each rules intent, regard I legislative to believe that the two areas of concern Assembly’s legislative pertaining protection of one Thus, precedence. depart majority's from I should take precept implied repeals are as decision to disfavored elevate concerning City's only controlling principle resolving for doubts remaining authority under Act 321. lease,” right-of-way, license or 693.15(a), § P.S. the Depart- ment does not purport predicate this limitation on the geographical location of SugarHouse casino. Nor does the Department address the question of whether the retained authority under the then-existing statutory grant scheme to an “estate or interest” in the submerged HSP, lands sought by which is a precondition to the issuance of a departmental 693.15(a) (“No permit. § See 32 P.S. permit shall be granted pursuant to this act project occupy submerged lands of the ... Commonwealth applicant unless the has obtained an easement, right-of-way, act, license or pursuant lease to this holds an estate or interest in such .submerged lands pursuant specific other authority from the General Assembly.”). fact, the Department clarifies that the reason it not be would empowered grant a license in this pertains case to its view that the project does not conform to provisions of Sections 693.15(b) (c) act, see Brief at 9 n. require which project no occupy acres, more than 25 see 32 P.S. 693.15(c),3 § and that it be undertaken for one of a set of specified 693.15(b).4 not purposes relevant here. See 32 P.S. Although the Department recognizes that it does not hold licensing exclusive authority under Section 693.15 for the reasons, this, view, above in my not support does an interpre- favoring tation the vitality of Act as the majority sug- gests. 156-57, See Majority Opinion, op. at at A.2d 1179. The Department simply does not address the question of entity, which as between the General Assembly City, and the project HSP describes the encompassing proposed site of plus submerged acres lands of 12 immediately adjoining acres that site. (Vol.I). See Exhibits to HSP’s Petition for Review at 9 Even if this description is construed to mean that the 12 part acres are site, existing plan 22-acre reflects an newly additional 3.23 acres of greenway, created as well as waters between the mainland and a proposed longitudinal pier connected to the mainland a narrow walkway, see id. at for a total of more than 25 acres. *43 purposes improving These navigation public include: transporta- or tion; recreation, fishing, public or other purposes; protecting trust environment; public safety providing or the supply, energy water treatment; production, or waste providing public utility a service a subdivision, government agency public or or utility coopera- or electric tive; require or other activities which access to water. otherwise, and its submis- licensing authority has the relevant its designed preserve is own specifically sion to this Court See authority statutory empowerment. in its area of licensing moreover, Department regard, Brief at 6-7. In this encroach- charged regulating water emphasizes it (em- Commonwealth,” Brief at 7 in “all ments waters plain in an assertion that accords with phasis original), terms, Act, which, applies text of Dam 693.4, § including 32 P.S. waterways, “all” Commonwealth Id., River.” “navigable those of the waters the Delaware 693.12(a). § portion of Act arguendo, that relevant assuming,
Even effect, grant in it not 321 were still would submerged lands for facilities to license the use of found passage, The critical boating shipping. unrelated to or states, act, part: in in 10 of the relevant Section construct, extend, ... shall desire to any person Whenever alter, building or in the any wharf, or other improve repair structures, or harbor wharf, bridge, nature or other class, person of the first such wholly any city situate within director, in application stating or make persons shall structure, such proposed the nature and extent of wilting [,] extension, alteration, or ... where improvement repair extension, alteration, structure, im if upon, proposed such upon waterway, encroach provement repair will hearing the time give place director shall notice of ... and if the parties such to all interested application, structure, exten approve proposed director ... shall such sion, alteration, plans and the improvement repair, therefor, to, give submitted he shall his assent specification for, permit making and issue a license or the erection and thereof.... added); Majority Opinion, op. see (emphasis
53 P.S.
full).
(quoting
provision
at
Pennsylvania, improvements and the substantial Thus, rivers and harbors. nel-ways Commonwealth’s Wharves, of City Department authorized Legislature (the Docks, to the Commerce predecessor and Ferries “wharves, development piers, to Department) regulate see 53 P.S. docks, 321, 6; bulkheads, § slips and basins.” “bulkhead and power regulate the director (giving 14191 lines,” piers,” develop- “the distance and the pierhead between bulkheads, docks, “wharves, and basins” piers, slips, ment of limits). This limited of authori- city scope within act, quoted in Section 10 of as above. ty also obtains site the facilities that will encroach According plan, to HSP’s into the established bulkhead of the Delaware River beyond include such features as a slots lands Commonwealth-owned hotel, A venue, retail and restaurants. parking garage, space, casino, all of its commercial together surrounding slots with entities, inland no inherent connection can be located and has Therefore, re- or water-related commerce. water travel may City, these items gardless appear of how beneficial wharf, other bridge, any are not in the nature of a they the construction of such facili- Accordingly, harbor structure.5 not been appear ties lands does have upon 321,6and, any of Act doubt by again, contemplated Section existence of the against on the be resolved question must City’s authority. that the revoca-
Finally, majority predicates finding on a “reliance interest” in favor tion of the license was invalid ejusdem general generis, in a statute take 5. Under the maxim of terms meaning preceding particular Independent Oil from the ones. See their Appeals Fayette County, Pa. v. & Gas Ass'n Board Assessment Here, (2002). ‘‘other harbor 572 Pa. 814 A.2d preceding must be understood within the context of the structure” wharf, wharf, building examples, namely, other in the nature of a bridge. Additionally, (piers, the other facilities addressed the statute bulkheads, docks, basins), specifically slips, and are related to that a slots waterfront as such. It would be unreasonable to assert simply because its owner decides to casino is a "harbor structure” Likewise, place adjacent even to the extent HSP's overall it to a river. uses, ancillary plan components under Act contains water-related as City's only extend to those 321 the encroachment could components. Attorney regard, noteworthy Opinion 6. In it is that the 1978 this "facilities,”, speaks generally and does not address the evidence of HSP, replete record is stating that “the at 164-65, A.2d 1183— at Majority Opinion, op. reliance.” authority However, support reference it does not matter, and there is legal as a of such interest the existence reliance, no show actual record that could evidentiary no of whether the factual place question taken hearing has the license.7 relied on reasonably detrimentally HSP moreover, license although the revocation respect, may raise concerns rela administration newly city installed *45 Borough see stability rights, generally of property tive 285, 52, A.2d 53 314 Agnew, v. 11 Pa.Cmwlth. Malvern where, (1973), arise countervailing considerations policy here, occurred before the license was election mayoral issued, incoming subject on the mayor the views that particularly, appears More it were well known. license in its by outgoing sought, issuing administration a regarding administration waning to bind successor days, importance they local which topic public substantial Svcs., Program Dauphin Admin. Inc. v. Coun disagreed. Cf. (2007) Auth, 184, 196-97, 928 A.2d ty Gen’l Pa. to that functions (recognizing pertaining government contracts governing body be may municipal rescinded successor faith efforts on the duck administra part avoid “bad lame (internal marks quotation tions to handcuff their successors.” omitted)). find did possess legal
Because I that the not would in the I authority place, deny to issue the license first would City’s to have the revocation of license request HSP’s declared invalid. McCAFFERY, dissenting.
Justice Act holdings I dissent from the respectfully majority’s Dam and Encroachments repealed Safety 321 was not legislation in separate topic question whether intended riparian authorize licenses for non-harbor-related casinos other structures. occurred, why monetary Even if reliance it is unclear 7. such has legally compensation by not would constitute sufficient remedy. (“Dam Act of as amended effective October Act”)1 Safety and that the of Philadelphia acted without authority in its revocation of the license issued to Petitioner on Rather, November 2007. I because believe that provi- of Act sions for the providing City of Philadelphia exercise authority submerged over the lands the Delaware River in are irreconcilable and inconsistent with Act, the Dam I conclude it is the Commonwealth that has sole authority grant permission to use those addition, I lands. that the City believe acted properly revoking a license it which had no to have conferred. irreconcilable,
Where two statutes are
the latter statute
shall be construed to repeal the earlier statute.
1 Pa.C.S.
1971(c).2
majority
While the
recognizes
statutory
man-
date and concludes that Act 321 and the Dam Safety Act are
irreconcilable,
not
it does not support
its conclusion
awith
Rather,
persuasive analysis.
the majority determines that the
two acts are not irreconcilable largely on the basis of its
observation that the Dam Safety Act expressly repealed Act
322 and
not
did
See
expressly repeal
Majority
op.
Opinion,
150-51, 152-54,
at
2. in all sections of a statute "together are to read conjunction be and in with each other” and are to statute,” be giving construed “with reference to the entire effect to all 1921(a); statutory provisions. § 1 Housing Authority Pa.C.S. County Commission, Pennsylvania Chester v. State Civil Service 556 (1999). Pa. possible, 730 A.2d reading If we avoid a would lead to a conflict between different statutes or between individu- parts al of a Id. at statute. particularly incongruous 3. This light majority's omission in of the determination, one, albeit a correct Gaming that Section 1506 of the appellate jurisdiction Act vests this Court with exclusive over this 141-42, appeal. Majority Opinion, op. See at A.2d at 1170. The majority apply refuses to Section 19 of Act which vests in the in, located Safety The Dam Act all encroachments applies across, into within along, projecting any or watercourse Safety § The Dam Act man- Commonwealth. 32 P.S. 693.4. an encroachment person dates that no shall construct without Department of the Environmental prior permit written (“DEP”). of Pennsylvania Protection of the Commonwealth Id., of a enjoins § Dam Act the issuance Safety 693.6. The lands of the occupy submerged permit project applicant unless the has any navigable river Commonwealth easement, pursuant obtained an license or lease right-or-way, Act, to the Dam or unless the holds estate Safety applicant or interest in lands to “other submerged pursuant specific Id., 693.15(a). § No authority” from the Assembly. General title, easement, one can obtain a or other interest right-of-way in the lands of the except Commonwealth specifically provided by Safety Section 693.15 of the Dam Act or “other from the specific authority” Assembly. Id., 693.15(e). Safety The Dam Act further all provides that encroachments in the of the navigable waters Delaware River subject are of the approval Navigation Commission for River, Id., § entity. Delaware a Commonwealth 693.12. conjunction other, Read in each provisions Dam Safety require any person entity or which who desires to erect an encroachment in the submerged lands 1) easement, in Philadelphia Delaware River obtain an right-of-way, license or lease from the DEP under Section 693.15(b) pursuant to other specific authority from the 2) General Assembly;4 permit obtain a from the DEP view, Navigation authorized In my Commission. these pleas jurisdiction appeals city courts of common over from licensure decisions, holding that Section 1506 vests this Court with such jurisdiction gaming facility a licensed I where is involved. fail to may properly reject appeal provision discern how we Act 321's on the Act, Gaming yet basis of Section conclude that Act 321 licensing authority provision primarily retains intact its on the basis expressly repeal that the Dam Act does not Act 321. Section repeal expressly 1506 does not Act 321 either. *47 dispute Assembly 4. There is no that the General has not exercised authority specifically upon to allow Petitioner to encroach the sub- merged development gam- lands in the Delaware River for the of its bling establishment. the Act are irreconcilable with Safety the Dam mandates of in Director Commerce Philadelphia to the authority granted desires to person to a who permit a license or Act 321 to issue upon encroach structure which will construct a harbor § 14199. 53 P.S. River. See Delaware of Phila- that the majority’s suggestion I consider to authority grant each has Assembly and the General delphia in Philadel- River lands in Delaware submerged of the use at n. Majority Opinion, op. untenable. See to be phia that either I believe it is self-evident at n. 21. 954 A.2d both, Commonwealth, authority but not has or the posit To submerged real estate. piece finite specific, over a authority have and the Commonwealth that both of a portion definable single, for use of a to a license grant that two possibility is to allow for the submerged lands river’s rights encroachment over may obtain licensees separate a circumstance as I view such of river. same stretch antagonistic, the creation of through havoc invitation wreak interests. possessory excludable mutually Saylor that addition, Mr. agreement I am in with Justice Act, 32 Safety Dam P.S. repealer provision the general 693.27(b), Act 321 and vested Commonwealth repealed to use authority grant permission the sole scope in The broad Philadelphiá. River lands in the Delaware Act, repealer general Safety coupled with of the Dam inconsis- acts or of acts parts all other repealed clause which Act, Safety compels the Dam provisions tent with use of the sub- grant that the sole conclusion lies with Philadelphia in the River lands Delaware merged Further, persuaded by I am Justice the Commonwealth. statutory construc- principle that the observation Saylor’s of its own Assembly’s protection tion that favors general principle over the precedence take authority should Say- Opinion by Dissenting See disfavoring implied repeals. n. 2. A.2d at 1186-87 lor, J., at 168-70 n. op. leases Assembly granting actions of the General River the bed Delaware lands within amend- the Dam Act 1979 subsequent passage *48 177 the Dam that Act 821 and conclusion my reinforces ments wit, acts are following the To Act are irreconcilable. authority: Assembly’s of the the exercise of examples Pa. Laws 201—Recit- 1980 Act of December 1. the bed the lands within owns that the Commonwealth ing pierhead the bulkhead and of the Delaware River between river in portion bed of the leasing of the lines and Philadelphia for the pur- of Landing to the Penn’s commercial, office, residential, for development of poses uses; condominium, other 13, 1988, that Reciting 1988 Pa. July Act of Laws
2. 89— the lands within the bed owns the Commonwealth leasing for the of Pier providing and Delaware River South, South, South, and 36 South, 34 35 28 30 Numbers Philadelphia for the of purposes of South commercial, residential, office, condomini- for development uses; um, hotel, marina or other 20, 1989, 1989 Pa. amend-
3. Act of December Laws Reciting that Com- the Act of December ing 1980— of the Delaware the bed owns lands within monwealth leasing of Pier Numbers 3 and for the providing River and Philadelphia develop- for the of purposes 5 condominium, hotel, residential, office, commercial, ment for uses; marina or other 21, 1998, 1998 Pa. Laws 137—
4. Act of December the lands within owns Reciting that Commonwealth leasing for the providing River and bed Delaware North, North, North, North, 15 19 13 Pier Numbers purposes development for the Philadelphia 24 North hotel, commercial, condominium, mari- residential, office, for uses; na or other 5, 2004, Reciting 2004 Pa. Laws February Act of
5. 4— the lands within the bed that the owns Commonwealth leasing for the of Pier providing the Delaware River North, North, North, 39 North in Numbers 36 purposes Associates for the Capri to Isle of community; of a condominium development 5, 2005, July 6. Act of 2005 Pa. Reciting Laws 34— Commonwealth owns lands within the bed of the Delaware River and for the providing leasing of Pier Num- ber 25 North slip and the boat located south of it to Pier 25 purposes North Associates for the of a development condominium community; Act of February 2008 Pa. Reciting Laws 4— Commonwealth the lands owns within bed for providing leasing Delaware River of Pier LP, 35]6
Number North to Philadelphia, pur- VTE *49 of of a poses development condominium The community. Act that no of provides portion parcel the leased shall be ie., as a “licensed facility,” physical used land-based location at a licensed gaming entity which is authorized to place and slot machines. The Act operate provides: further Assembly hereby General affirms its sole existing, authority
and to consider specifically exclusive and au- title, easement, conveyance thorize the of any right-of- lands, in way other interest Commonwealth-owned such as set forth herein pursuant those to the act of April (P.L. 9, 177, 175), 1929 No. as The known Administrative 1929, 26, (P.L. Code of and the act of November 1978 325), 1375, No. Safety known as the Dam and Encroach- ments Act. 22, 2008, February
8. Act of 2008 Reciting Pa. Laws 5— that the Commonwealth owns lands within the bed of the Delaware River and for providing leasing of Pier Number 53 North to NCCB Associates for the purposes development of a condominium community. The Act pro- that no portion parcel vides leased shall be as a used i.e., “licensed facility,” physical land-based location at gaming entity which licensed is authorized to place and slot The Act operate provides: machines. further Assembly hereby The General affirms its existing, sole and authority exclusive to consider and au- specifically title, easement, conveyance thorize the of any right-of- lands, in way or other interest Commonwealth-owned pursuant such as those set forth herein to the act April (P.L.177, No.175), Administrative 9, as The known 26, (P.L.1375, act November Code No.325), and Encroachments Safety as the Dam known Act. enactments, has Assembly
By legislative these use authority exhibited and exercised its award consistently in Philadel- the bed of the Delaware River lands within for public private development lessees renewal phia act, the same legislative by Most is the 1980 purposes. telling Act, that legislative Safety the Dam passed session to enter into a lease with authorized the Commonwealth City itself, Landing. Similarly, for the of Penn’s development lands in 1988 and the Commonwealth leased hard-pressed One is conceive development. to the for these leases to have been issued Common- reason City, if the to the Pennsylvania wealth itself, fact, to Act authority pursuant had retained subsequent in the bed of the use of the lands Delaware award passage Safety of the Dam amendments February passed The recent affirmations Acts has been since the explicit implicit make which of Act 321 the Dam Act: because the repeal bed, the land River Commonwealth owns within Delaware conveyance it has the to authorize the sole *50 Therefore, I that the interest therein. conclude whatsoever 2007, in did not the November to issue have lands in the bed of development submerged license for River, that the license it issued on Delaware and Novem- 27, 2007, ber was invalid. disagree majority’s
I also conclusion that the did not to the license once it was power have revoke for the lands been issued. Licenses use have in this for centuries. See deemed revocable Commonwealth 9, 9 Company Wright, Serg. Canal v. Watts & Susquehanna (Pa.1845) that the license accorded to owners (stating riparian in defeasible and navigable to erect mill-dams streams was by paramount to necessitated subject revocation when of the Railroad and Coal Co. v. public); Barclay interest 180 (1860) (“When 194, 36 Pa. 200
Ingham, (emphasis supplied) Commonwealth, by legislature, riparian its authorized streams, to erect dams for their own along [navigable] owners license, public and it was a sort of like profit, convenience which, ferries, Assembly, Acts of fisheries and numerous being in all our rivers. And a mere granted public were domain, on the consid trespass public license without therefore, indefeasibility it had none of the eration received contract, might of the of a be revoked at will sovereign, another.”); v. Delaware granted or be Rundle Co., 80, 14 L.Ed. and Raritan Canal 55 U.S. How. (1852) law, supplied) applying Pennsylvania (emphasis river, its public, navigable River Delaware is held “[T]he trust, riparian joint in for the that owners sovereigns, public; river, any right divert of land have no title to waters, by license from the That such li unless State. revocable, subjection superior right and in cense State, public improvements.”; to divert the water for Commonwealth, 232, v. 284 Pa. 130 A. (1925) date,” that “an licenses to (stating early since piers holders of to build held at riparian rights were revocable will.). Zoning Adjustment v. Board Compare Schechter (1959) 310, 316, 149 28, 32 Township Hampton, 395 Pa. A.2d right in have a (emphasis original) (holding municipalities “if permit to contest the issuance of a there previously-issued be a as to or not the question permit whether variance issued.”). properly legally case,
In the I conclude that the has advanced instant revocation, eminently January valid reason for the i.e., commerce acted that the former director ultra vires Any the license. awarding contravention state law may placed upon City’s reliance Petitioner have licensure unjustified entirely light decision would have been of that decision. Because Petitioner was timely appeal chal- being notice the November 2007 license was funds, any, upon if in reliance lenged, expenditure *51 justified. of that license neither reasonable nor validity was the Dam repealed by that Act 321 was sum, I hold would authority had no Act, that the lands 2007 license to the November issue River, have the that the did the Delaware Therefore, I must illegally. it had the license issued to revoke majority. holding of the from the dissent respectfully 955 A.2d MURETIC, Petitioner Linda
v. APPEAL BOARD COMPENSATION WORKERS’ (DEPARTMENT AND LABOR OF INDUSTRY), Respondents. Pennsylvania.
Supreme Court of Aug.
ORDER PER CURIAM. for NOW, the Petition day August, this 7th
AND issues, rephrased is GRANTED. Appeal Allowance are: clarity, law,
(1)
an error of
commit
Court
Did
Commonwealth
Steaks),
(Steve’s Prince
under Mitchell v. WCAB
(2003),
that Peti-
determining
815 A.2d
Pa.
because of
job,
to an offered
report
failure to
tioner’s
faith,”
incarceration,
an act of “bad
which would
her
showing job
of the burden
Respondent
then relieve
The
notes
majority
er clause at least
this extent.
(but
Act 321
Act,
not
under the Dam
licensees
693(a)
licensees)
re-
permit
the Section
may dispense a legisla-
reflects
quirement.
majority concludes
this
Majority Opinion,
Act 321. See
tive intent not to “eviscerate”
however,
157-61,
I do
agree,