72 Pa. Commw. 188 | Pa. Commw. Ct. | 1983
Opinion by
Petitioners
Petitioners allege that during their negotiations with the .sellers, they had discussions with DER and the Secretary (collectively, Commonwealth Respondents) and that Commonwealth Respondents, at the time of those discussions, had knowledge of the violations which resulted in DER’s .subsequent orders. Petitioners contend to us that these misrepresentations of existing facts constitute misfeasance and/or malfeasance on the part of the Commonwealth Respondents. Petitioners ask that DER and the Secretary be enjoined from enforcing against Petitioners the DER orders issued subsequent to the execution of subject agreement of sale.
It is well settled .that for the purpose of disposing of the preliminary objections now before us, the factual averments in the petition must be deemed to be true. Burgerhoff v. Pennsylvania State Police, 49 Pa. Commonwealth Ct. 49, 410 A.2d 395 (1980). It is equally well settled that if we find that the factual al
As may be expected, the Commonwealth Bespondents contend that we have no equitable jurisdiction because Petitioners have failed to ¡pursue ¡their statutory remedy, to wit, ¡an ¡appeal to the Environmental Hearing Board (EHB) under the provisions ,of Section 1921-A of the Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §510-21
It must be observed, however, that the claim for relief in both counts of .the petition for review is that DEE be enjoined from enforcing its orders. An administrative appeal taken from those orders, if successful, would set aside the DEE orders and that
We turn next to a consideration of whether the factual ¡averments in the petition set forth a cause of action for misfeasance or malfeasance by the Commonwealth Respondents. In this regard, we observe that nowhere in the petition for review is there mention of the terms “misfeasance” or “malfeasance”. Of course, if the factual averments in the petition ,set forth a cause of action ¡based upon those concepts, the mere omission of those terms is not fatal. We also note, however, that if the petition does set forth a cause of action, it would not entitle Petitioners to the equitable relief requested. As 'will later become clear, a cause of action for misfeasance or malfeasance should be pursued on the law ¡side of the court. Thus, the injunctive remedy requested here by Petitioners would not flow from a ¡successful legal cause of action for misfeasance or malfeasance. There, accordingly, should be no need to certify this case to the law .side of the court pursuant to Pa. R.O.P. No. 1509(c), .since no remedy at law could satisfy Petitioner’s claim. See Holiday Lounge, Inc. v. Shaler Enterprises Corp., 441 Pa. 201, 272 A.2d 175 (1971). We will nevertheless, in the interest of thoroughness, examine the petition to determine whether the factual allegations set forth a separate cause of action for misfeasance or malfeasance which could be addressed in an action at law.
We hold that 1) Petitioners have an adequate administrative remedy and 2) the factual allegations of the petition are insufficient to make out a cause of action against the Commonwealth Respondents for misfeasance and/or malfeasance in office. We will, therefore, dismiss this action against the Commonwealth Respondents.
■ Since we would lack statutory jurisdiction over the other named respondents if the Commonwealth Respondents are no longer parties, we need not address their preliminary objections. Petitioners’ brief acknowledges that a complaint has been filed in Montgomery County Court of Common Pleas against the other corporate and individual respondents, thus preserving their cause of action against those respondents ; therefore, we need not transfer this case to that •court for further proceedings as we would be required to do otherwise. See Pa. R.C.P. No. 213(f).
The preliminary objections of the Department of Environmental Resources and Peter (S. Dunoan, Secretary of the Department of Environmental Resources raising a question of jurisdiction and .setting forth a demurrer are .sustained. The action is dismissed.
Stabatrol Corporation, Waste Management, Inc. and Chemical Waste Management, Inc.
Metzvai Corporation, Darbron Corporation, 1533 North Fletcher Corporation, Park L. Metzger, Richard E. Valiga, Lee L. Metzger, Commonwealth of Pennsylvania, Department of Environmental Resources and Peter 8. Duncan, Secretary of the Pennsylvania Department of Environmental Resources.
Petitioners object to the preliminary 'Objection captioned “defense of collateral attack” and the objection raising 'the bar of the pendency of prior actions. In view of our determination of the validity of other preliminary objections filed by the respondents, we need not address the Petitioners’ preliminary objections.
Section 1921-A provides, in pertinent part, as follows:
(a) The Environmental Hearing Board shall have the power and its duties shall be to hold hearings and issue adjudications under the provisions ¡of the act of June 4, 1945 (P.L. 1388), known as the “Administrative Agency Law,” on any order, permit, license or decision of the Department of Environmental Resources.
Paragraph 56 of the petition, provides as follows:
56. The violations alleged by DER in its orders were not created or caused ¡by petitioners, but in fact were created and caused before November 14, 1980 by all respondents, including DER, as set forth in Count One hereof and in the following respects:
(a) DER failed to discharge its mandatory duty to inspect the day-to-day operations at Lyncott, so that deficiencies could be discovered and immediately remedied;
(b) DER failed to properly analyze the information it had discovered and received concerning the operations at Lyncott;
(c) DER failed to warn members of the general public, including petitioners, about the deficiencies at the Lyncott site;
*194 (e) DER knew or had reason to know that it had insufficient data or information to substantiate its claims that the procedures used at Lyncott were sound, that the reputation of the private respondents was good and that the operations at Lyncott conformed to legal and permit requirements,
(f) The intentional or wrongful acts of DER and the ■Secretary and their failure to perform their undertakings subst&ntiaUy contributed to the character, severity, and duration of the violations existing a't the Lyncott site and proximately resulted in the issuance and continuance of permits to respondent Metzval and Lyncott Oorp.