Eugene F. SCANLON, et al., Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, et al., Appellees. James M. BURD, et al., Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, et al., Appellees.
No. 1506 C.D.1981. No. 1762 C.D.1981.
Supreme Court of Pennsylvania.
October 26, 1983
Reargument Denied December 1, 1983.
467 A.2d 1108
LARSEN, Justice.
Section 3701 (relating to robbery).
Section 4101 (relating to forgery).
Section 4902 (relating to perjury).”1
Because criminal conspiracy is not an offense enumerated in subsection (b) of section 5552, the two-year statute of limitations established by subsection (a) must apply.2
The order of the Superior Court is modified to reverse the conspiracy conviction. As modified, the order of the Superior Court is affirmed.
Allen C. Warshaw, Deputy Atty. Gen., for appellee Com.
John Hrubovack, Harrisburg, for appellee Penndot.
Joseph W. Marshall, III, Philadelphia, for appellants Burd, et al.
Before ROBERTS, C.J., LARSEN, FLAHERTY, McDERMOTT and ZAPPALA, JJ.
OPINION
LARSEN*, Justice.
The record in this case reveals the following facts: On June 29, 1976, a lawsuit was filed against appellees, Pennsylvania Department of Transportation (Penndot), and Pennsylvania Department of Environmental Resources, et al., in the United States District Court for the Eastern District of Pennsylvania, by the Delaware Valley Citizens’ Council for
On August 29, 1978, without adjudication of any of the issues raised, the actions were concluded by the entry of a consent decree agreed to by counsel for the parties to the lawsuits.5 Under the terms and conditions of the consent decree, appellee Penndot was required to seek the enactment of enabling legislation for a franchise system of auto emission inspection and maintenance. In the event that such legislation was not obtained by July 1, 1979, or, if the parties agreed, by October 1, 1979, then appellee Penndot would immediately move toward implementation of a private garage system of inspection. The General Assembly failed to
On March 7, 1981, the consent decree was modified to extend the time within which Penndot was to implement the private garage system. On May 21, 1981, the United States District Court refused Penndot‘s request for another extension of time and ordered that the inspection/maintenance program as set forth in the consent decree be established without further delay. On June 16, 1981, the District Court issued an additional order requiring appellees to have a fully operational program by May 1, 1982. Penndot proceeded to carry out the provisions of the consent decree which necessarily involved the expenditure of state monies. Final equipment standards were adopted and promulgated on October 10, 1981.7
On October 5, 1981, the General Assembly overrode a gubernatorial veto and enacted into law H.B. 456 which provided as follows:
“Neither the department nor any other department or agency of the executive branch of state government shall expend any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission system of motor vehicles.” (1929, April 9, P.L. 177, Art XX, § 2013, added 1981, Oct. 5, P.L. 289, No. 99, § 2;
71 P.S. § 523 ).
After the passage of H.B. 456, Penndot ceased to implement the terms of the consent decree. As a result, on January 22, 1982, the United States District Court entered an order holding the Commonwealth in contempt.
In June and July of 1981, the present actions were initiated by the two groups of appellant-legislators, each group filing a separate petition for review in the Commonwealth
After the two cases were consolidated for trial, the Commonwealth Court entered a decree finding that the appellee Penndot had the authority to establish, implement and maintain an auto emissions inspection program as called for by the consent decree and denied appellants’ prayer for relief. 66 Pa.Cmwlth. 129, 443 A.2d 1197. Appeal to this Court followed.
I.
The appellants argue that appellees lacked the authority to establish and implement an auto emissions inspection program at the time they entered into the consent decree calling for such a program.
The appellee Penndot, on the other hand, argues that indeed it had authority to commit to the implementation of an emissions inspection program by virtue of Sections 4701, 4702(a), 4521, 4531 and 6103 of the Motor Vehicle Code9 which Sections provide, in the order set forth, as follows:
No owner or driver shall refuse to submit a vehicle to any inspection and test that is authorized or required by the provisions of this chapter.
§ 4702. Requirement for periodic inspection of vehicles
(a) General rule.----The department shall establish a system of semiannual inspection of vehicles registered in this Commonwealth.10
§ 4521. Promulgation of regulations by department
The department shall promulgate regulations governing the number, size, color, type, construction, location and use of other equipment on vehicles consistent with but not limited by the provisions of this subchapter and taking into consideration different requirements for different classes or types of vehicles.
§ 4531. Emission control systems
(a) Compliance with established maximum levels.—No vehicle manufactured in compliance with the requirements of the Clean Air Act (77 Stat. 392,
(b) Limitation on alteration of system.—No person shall change or alter the emission control system of a vehicle in such a manner that it fails to comply with the prescribed emissions criteria. It is unlawful for the vehicle to be operated under its own power until a reinspection at an official inspection station establishes its full compliance.
§ 6103. Promulgation of rules and regulations by department
None of the statutory provisions cited by the appellee Penndot empower it to implement an auto emissions inspection/maintenance program such as that which it agreed to implement in the Federal Court consent decree.
In considering Section 4701, it is helpful to examine its predecessor, Section 834 (
“(a) Every owner of a motor vehicle ... being operated in this Commonwealth, shall submit such motor vehicle to such inspection of its mechanism and equipment as may be designated by the secretary, including such emission control systems and devices for which the Secretary of Transportation, in consultation with the Secretary of Environmental Resources, has adopted inspection procedure and requirements which shall, to the extent possible and practical, be consistent with the requirements of the ‘Clean Air Act’ ... These requirements shall not apply within ninety (90) days after they are adopted, shall not be changed oftener than once a year and shall apply only to those motor vehicles as are required by Federal law or regulation to be equipped with such emission control systems and devices. The inspection of such devices and systems shall commence on the first day of inspection periods ... Such emission control systems and devices shall be inspected once a year.” (Emphasis added)
The language of Section 834(a) set forth above is not the original statutory language as adopted by the legislature in 1959. The provisions of Section 834(a) which immediately preceded Section 4701, became part of the statute by amendment in 1972. This 1972 revision demonstrates a
It is the General Assembly, not the Executive Branch, which has been given the constitutional power to determine what programs will be adopted in our Commonwealth and how they will be financed. Although this may be done upon the recommendation of the Executive branch, the final determinations are legislative in nature. The Executive‘s function is to carry out those programs authorized by legislation. Shapp v. Sloan, 480 Pa. 449, 469, 391 A.2d 595, 6 (1978).
Section 4521 provides Penndot with authority to regulate the type and kind of equipment which must be included in various classes of vehicles. No authority to implement an auto emissions inspection system is established by the provisions of this section. The right to prescribe equipment does not carry with it the power to mandate inspections.
Section 4531, although addressed to emission control systems, does not provide the inspection authority as contended by appellee Penndot. The provisions of 4531(a) require that all vehicles manufactured in compliance with the requirements of the “Clean Air Act” be equipped with an emissions control system that meets the specifications of the “Clean Air Act.”13 Section 4531(b) prohibits any alteration of the emissions control equipment which reduces its efficiency below the standard set by 4531(a). Neither 4531(a) nor 4531(b) vests Penndot with the authority to implement an annual system of inspection and testing of the required equipment. In addition Section 4531 applies to all vehicles throughout the entire Commonwealth manufactured in compliance with the Clean Air Act. It is not limited to certain
Section 6103 merely grants Penndot the general authority to promulgate rules and regulations is carrying out the specific powers granted it by statute. Section 6103 is only applicable when it is determined that Penndot has been authorized to act by some other provision of the code.
Clearly, at the time of the entry of the Federal Court consent decree, the appellee Penndot lacked the statutory authority to establish and implement the auto emissions inspection/maintenance program contemplated by that order. The desirability and merits of the system is not the question here; it is the extent of authority possessed by Penndot which is at issue. We hold that appellees simply did not have the authority to establish and implement such a system at the time it agreed to the consent decree, and thus had no authority to enter into the consent decree.
II
While this appeal was pending, the legislature enacted Act 3 of 198314 which provides, in pertinent part, as follows:
(a) General rule. -Except as provided in subsection (b) neither the department nor any other department or agency of the executive branch of State government shall expend any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission systems of motor vehicles.
(b) Exception.—The provisions of subsection (a) shall not apply when the secretary shall certify that such system is required to comply with Federal law and is necessary for the Commonwealth to receive or avoid the loss of Federal funds in which case the department may establish and administer such a system for motor vehicles registered in areas where periodic inspection of emissions or
emission systems of motor vehicles is required by the Environmental Protection Agency of the United States or decrees of the courts of the United States.
Subsection (a) is a restatement of the Act of 1981, Oct. 5, P.L. 289, No. 99, § 2;
Penndot points to Act 3 of 1983 as evidence of its authority to agree to the implementation of an auto emissions inspection system as provided by the consent decree. It is argued that Act 3 of 1983 is a limiting statute which restricts the broad authority granted by Section 4702 of the Motor Vehicle Code and specifically sets forth the type of auto emission inspection program which may be established. We do not see Act 3 of 1983 as a limiting enactment in the sense advanced by the appellees. Rather Act 3 of 1983 is a statute, coerced by a Federal Court Order,18 and delivered as
Nothing contained in the provisions of Act 3 of 1983 gives the appellee blanket authority to establish an emissions inspection program when and where such a system is deemed necessary or desirable. The authority vested here is circumscribed by the specific conditions set forth in Subsection (b). Act 3 of 1983 authorizes Penndot to establish and implement an inspection system for motor vehicles registered in areas where emission inspections are required by the environmental protection agency of the Federal government or by decrees of the Federal courts. In this case the inspection system Penndot seeks to implement is embraced by the terms of a consent decree of the United States District Court for the Eastern District of Pennsylvania. The decree relied upon here, however, fails to provide the necessary condition required to activate Penndot‘s authority. Act 3 of 1983 contemplates and refers to a valid decree based upon proper authority. Where the decree is a consent decree, as is the case here, proper authority includes the lawful ability and power of the parties to enter into the agreement. Penndot did not have the power to establish and implement an emissions inspection system as provided by the decree, and therefore, could not validly agree to the
III
We conclude that at the time appellee Penndot agreed to the terms of the Federal Court consent decree providing for the implementation of an emissions inspection program, it did not have legislative authority to establish such a system. Because of the lack of authority, Penndot could not validly agree to establish and administer an inspection program and its purported agreement to do so is void. Further, we conclude that nothing contained in Act 3 of 1983 does or can retroactively vest appellees with the requisite authority. In addition, the exception provided for in subsection (b) of Act 3 of 1983 has no application to the Federal Court consent decree under the facts in this case, in that the appellees’ agreement thereto is a nullity. Accordingly, and consistent with our holding that Penndot lacked the authority to consent to establish and implement an auto emissions inspection program, an injunction should issue enjoining appellees from performing the terms and conditions of the consent decree.
ROBERTS, C.J., and ZAPPALA, J., file dissenting opinions.
NIX and HUTCHINSON, JJ., did not participate in the consideration or decision of this case.
ROBERTS, Chief Justice, dissenting.
I dissent.
The Commonwealth Court was manifestly correct in holding that appellee Department of Transportation had the requisite statutory authority to implement the inspection system required by the terms of the consent decree into which appellee validly entered. See Burd v. Department of Transportation, 66 Pa.Cmwlth. 129, 133-135, 443 A.2d 1197, 1199--1200 (1982). It is unnecessary to address the effect of the initial version of
ZAPPALA, Justice, dissenting.
This is an appeal from an Order of the Commonwealth Court denying Appellants’ petitions for declaratory and injunctive relief. The Appellants in these consolidated cases are members of the Pennsylvania General Assembly. They instituted these actions to challenge the authority of the
PennDOT had taken steps toward developing such a program to control air pollution in the Pittsburgh and Philadelphia areas as a result of two suits brought in the United States District Court for the Eastern District of Pennsylvania. Those actions, brought by the Delaware Valley Citizens Council for Clean Air and by the United States Environmental Protection Agency (EPA) against the Commonwealth, PennDOT, and the Department of Environmental Resources (DER), sought enforcement of the I/M provision of the state‘s implementation plan (SIP), required by the Clean Air Act, as amended,
According to the terms of this consent decree, PennDOT was to seek legislative approval for a franchise system of emission inspections or, in the event of failure to obtain such approval, to implement a private garage inspection system under its own authority. When the General Assembly failed to pass the franchise system legislation proposed by PennDOT, the Department promulgated regulations and standards for the private garage system, to take effect under the modified consent decree by May 1, 1982. In October of 1981, the General Assembly passed, and overrode the governor‘s veto of, House Bill No. 456, which prohibited PennDOT or any other executive agency from spending “any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission system of motor vehicles.”
In these actions, the Appellants sought to establish that PennDOT at all times lacked the authority to implement an I/M program or to consent to such a program on behalf of the Commonwealth. The Commonwealth Court concluded to the contrary, finding that under § 4531 of the Motor Vehicle Code, Title 75, Pa.C.S., PennDOT “had the statutory authority to implement an auto emission inspection maintenance program at the time it entered into the consent decree in the Federal District Court.” Because of the effects of House Bill No. 456, the court found no threat of irreparable harm and therefore denied the injunctive relief as well.
Subsequent to the Commonwealth Court‘s decision, and the filing of this appeal, the General Assembly enacted Act 3 of 1983. While maintaining the prohibition on expenditure of funds for emissions inspection programs as the general rule of
A Majority of this Court today holds that the Department did not have the authority to enter into the consent decree, that the decree is invalid, and that the Department does not presently, under Act 3, have authority to implement the I/M program. I most vigorously dissent.
The first and perhaps most fundamental error of the Majority Opinion occurs in the introductory sentence. There it is stated that the record reveals the “fact” that a suit was filed in federal court “against appellees, Pennsylvania Department of Transportation (Penndot), and Pennsylvania
The importance of this misstatement of fact becomes immediately obvious in the next paragraph where the Majority indicates that “the actions were concluded by the entry of a consent decree agreed to by counsel for the parties to the lawsuits.” Majority opinion at 1109 (Emphasis added). If, as the Majority implies, the party defendant was simply PennDOT, then the question addressed by the Majority, whether that agency had authority to establish an I/M system at the time it entered into the consent decree, might indeed be the relevant question. If however, as was found by the federal courts, the Commonwealth itself was the party defendant, then regardless of the intragovernmental processes necessary to comply, the Commonwealth itself, not just the agencies or the executive, but the entire state government, became bound by the consent decree. The Court of Appeals in an early challenge to the authority of the Environmental Protection Agency to enforce the requirements of the Clean Air Act and the State Implementation Plan by proceeding directly against the Commonwealth, held that such enforcement was valid. Commonwealth of Pennsylvania v. Environmental Protection Agency, 500 F.2d 246 (3rd Cir.1974). The Court made clear its awareness that in permitting the EPA to enforce the SIP by acting against the Commonwealth itself, the processes of all branches of the Commonwealth government were implicated.
It is also true that compliance with the plan will require the Commonwealth to exercise its legislative and administrative powers, for that is the means by which a state regulates its transportation system. However, it must not be forgotten that when dealing with the commerce power, ‘we are guided by practical considerations’ (citation omitted). In enacting the Clean Air Amendments of 1970 Congress created an interlocking governmental structure in which the Federal Government and the states would
The Majority reviews the legislative history of various sections of the Motor Vehicle Code, additions and deletions, and concludes that “the deletion of emissions systems language and ‘Clean Air Act’ references evinces that the legislature intended to deny Penndot the authority to require emission systems inspections.” Majority opinion at 1112. I cannot agree with this conclusion. Section 4521 of Title 75, the initial section of Subchapter B, “Safety and Anti-Pollution Equipment“, assigns to PennDOT the duty to
promulgate regulations governing the number, size, color, type, construction, location and use of other equipment on vehicles consistent with but not limited by the provisions of this subchapter and taking into consideration different requirements for different classes or types of vehicles. (Emphasis added).
Section 4531(b) provides that
No person shall change or alter the emission control system of a vehicle in such a manner that it fails to comply with the prescribed emissions criteria. It is un-
lawful for the vehicle to be operated under its own power until a reinspection at an official inspection station establishes its full compliance. (Emphasis added).
The above-quoted, emphasized language supplies sufficient indication that PennDOT, even after the 1976 changes in the statutory language noted by the Majority, had the authority to set emissions criteria, require emission control equipment, and require inspections to establish compliance. Although the deleted language had made such authority explicit, by retaining the language of Sections 4521 and 4531 after the deletions the legislature acknowledged the continued existence of the Department‘s authority in this regard. It would be absurd for the legislature to have granted PennDOT authority to set requirements for emissions equipment, to make unlawful the tampering with such equipment and the operation of a vehicle until re-inspection establishes full compliance, and yet to have denied the authority to inspect such systems for tampering or compliance in the first place. At a minimum such authority must be recognized in PennDOT‘s power to “promulgate regulations ... consistent with but not limited by the provisions of this subchapter“.
This interpretation is further supported by reference to
At the very least, these powers of DER refute the argument advanced in Part II of the Majority Opinion that, in the federal litigation, the proper parties were not before the court and could not lawfully bind the Commonwealth to the terms of the consent decree. The deputy attorneys general who signed that decree clearly had authority to act on behalf of the Commonwealth itself, and as agents of the Department of Justice adequately represented the interests of the Commonwealth in those proceedings.
The Majority‘s discussion of the effect of Act 3 of 1983,
It is incomprehensible that a Majority of this Court could hold that a decree entered by another court, which court has authority to determine its own jurisdiction, is invalid, thereby abandoning accepted principles of judicial comity. The Majority further errs in concluding that because the decree is invalid the program must be enjoined. This conclusion ignores the alternate basis for implementation of an I/M program set out in Act 3, “when it is required by the Environmental Protection Agency of the United States.” The record makes it abundantly clear that the I/M program which was the subject of the federal litigation is required by federal law, by Pennsylvania‘s SIP, and by EPA regulations, and that the federal court action was only a means of enforcing those requirements. PennDOT clearly has the authority to implement the challenged program following the enactment of Act 3 of 1983. Indeed, this intervening change in the applicable law has made moot this entire appeal, for by “granting” PennDOT the authority to implement an I/M program of the type challenged under conditions which undeniably exist, the legislature has resolved the only issue raised by the Appellants. See generally, In Re Gross, 476 Pa. 203, 382 A.2d 116 (1978).
Despite the self-serving protestations to the contrary (“The desirability and merits of the system is [sic] not the question here; it is the extent of authority possessed by PennDOT which is at issue.” Majority opinion at 1113), the Majority Opinion belies a clear intent to rewrite both federal and state environmental law according to the conceptions of
I would dismiss the appeals as moot.