Petition for Writ of Certiorari — Pennsylvania v. Delaware Valley Citizens' Council for Clean Air
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9421779 |) teiemenns
FILED
MAY 3 1985
ox |
No. CUSRK
ws
in the Supreme Court of the
United States
retell
October Term, 1984
COMMONWEALTH OF PENNSYLVANIA et al.
Petitioners
vs.
DELAWARE VALLEY CITIZENS’ COUNCIL FOR CLEAN
and
UNITED STATES OF AMERICA,
Respondents
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
JAY C. WALDMAN
Genera! Counsel
Office of General Counsel
SPENCER A. MANTHORPE
Chief Counsel
Department of Transportation
JOHN W. CARROLL
Acting Chief Counsel
Department of Environmental
Resources
JOHN M. HRUBOVCAK
Assistant Counsel
Department of Transportation
By: JOHN P. KRILL
Deputy General Counsel
Office of General Counsel
Attorneys for Petitioners
Office of General Counsel
Commonwealth of Pennsylvania
Post )ffice Box 11775
Harrisburg, Pennsylvania 17108
(717) 783-6563
Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244
Statement of the Question Presented
STATEMENT OF THE QUESTION PRESENTED
1. Whether a federal court consent decree can pro-
vide a state’s Executive Branch with the authority to im-
plement a program involving the state’s police powers and
can supplant the state’s Legislative Branch, in contraven-
tion of the state’s Constitution, when the consent decree
is founded upon a state law that the state’s Supreme Court
subsequently finds did not grant the Executive Branch any
authority either to implement the program or to execute
the consent decree and whether such a consent decree must
be vacated.
Table of Parties
TABLE OF PARTIES
DELAWARE VALLEY CITIZENS’ COUNCIL FOR
CLEAN AIR; AMERICAN LUNG ASSOCIATION FOR
PHILADELPHIA AND MONTGOMERY COUNTY;
DELCHESTER LUNG ASSOCIATION; SIERRA CLUB,
PENNSYLVANIA CHAPTER; FRIENDS OF THE
EARTH OF THE DELAWARE VALLEY; CITIZENS’
COMMITTEE FOR ENVIRONMENTAL CONTROL;
KEVIN QUINN, KAYSI FARRELL, RUTH G. WEISS;
JOHN KLINKNER, ELIZABETH S. BIEZ; MONA
SHULMAN,
Plaintiffs
V.
COMMONWEALTH OF PENNSYLVANIA; WILLIAM
T. SHERLOCK, Individually and as Secretary of the Penn-
sylvania Department of Transportation; MAURICE K.
GODDARD, Individually and as Secretary of the Penn-
sylvania Department of Environmental Resources,
Defendants
(D.C. Civil No. 76-2068)
ii
Table of Parties
UNITED STATES OF AMERICA,
Plaintiff
v.
COMMONWEALTH OF PENNSYLVANIA, the PENN-
SYLVANIA DEPARTMENT OF TRANSPORTATION
and WILLIAM T. SHERLOCK, Secretary of the Penn-
sylvania Department of Transportation; the PENNSYL-
VANIA DEPARTMENT OF ENVIRONMENTAL RE-
SOURCES and MAURICE K. GODDARD, Secretary of
the Pennsylvania Department of Environmental Resources,
Defendants
(D.C. Civil No. 77-0619)
iti
TABLE OF CONTENTS
Statement of the Question Presented ............
Tee ae BS GC 5. GW ew nwa oe Ss OR Sos oe aes
Table of Contents
1; 8 3 ss Re ne ae ee
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Third Circuit .......
I. Opinions of the Courts Below
Il. Jurisdiction
III. Constitutional and Statutory Provisions In-
volved
Aner neeryee yer sy ete eee ee Fr ee oe eee
IV. Statement of the Case
V. Reasons for Granting the Writ:
A. The Circuit Court’s Opinion Raises Signifi-
cant Questions Concerning the Constitu-
tional Government of States
B. The Opinion of the Circuit Court Is in Con-
flict with the Decisions of the Fourth and
Ninth Circuits Holding that Principles of
Federalism Mandate that Federal Consent
Decrees Should Be Vacated when in Conflict
WE Be Be foe bk Sek 5 oe ba eee
C. The Circuit Court’s Opinion Conflicts with
Established Legal Principles and with the
Decisions of This Court and of Other Circuit
Courts
PAGE
il
10
14
1. The opinion of the Circuit Court is in con-
flict with the well-established doctrine that
general principles of contract law apply to
the interpretation of consent decrees and
with the holding of the Ninth Circuit that
the law of the situs state applies in deter-
mining the validity of a consent decree . .
2. The opinion of the Circuit Court is in
conflict with the holding of the United
States Supreme Court that the construction
of a statute and of state authority by the
state Supreme Court is binding on the
courts of the United States ............
3. The disregard by the Circuit Court of the
“four corners” doctrine presents a conflict
with a prior holding of the United States
Supremns Coust 2 ccc ccccessenvecsevcs
4. The failure of the Circuit Court to follow
the well-established law, that government
is not bound or estopped by any agreement
where there is a lack of authority or an
agreement to do or cause to be done what
the law does not sanction or permit, con-
flicts with the holdings of numerous other
Coreulit QOUTE << 6 ks Renenusase ceee
D. The Circuit Court’s Opinion Represents an
Improper and an Unwarranted Application
of the Full Faith and Credit Clause to Over-
ride and Impair Valid State Interests ......
WE. Comin . goo ccccétéeiadbiesueae
vi
APPENDIX:
1.
2.
3.
Order of the District Court dated April 13, 1984
Order of the District Court dated April 26, 1984
Opinion of the Third Circuit dated February 11,
66h t obb oie edlinekebewes clebines
Scanlon v. Commonwealth (also reported at 502
Pa. 577, 467 A.2d 1108 (1983)) ..........
Supreme Court of Pennsylvania denial of Appli-
cation for Reargument dated December 2, 1983
Order of the Commonwealth Court of Pennsyl-
vania dated January 9, 1984 ..............
a ee ee
vii
TABLE OF CITATIONS
CASES:
Arkansas v. Texas, 346 U.S. 368 (1953) ........ 18,19
Ashbourne School v. Commonwealth, 43 Pa. Com-
monwealth Ct. 593, 403 A.2d 161 (1979) ...10, 11
Burd v. Commonwealth, 66 Pa. Commonwealth Ct.
129, 443 A.2d 1197 (1982), rev’d sub nom.
Scanlon v. Commonwealth, 502 Pa. 577, 467
DSR COED k.ncs snd ocncsnensssnues 7,12
Central Storage & Transfer Co. v. Kaplan, 37 Pa.
Commonwealth Ct. 105, 389 A.2d 711 (1978),
aff’d, 487 Pa. 485, 410 A.2d 292 (1979) .... 21
Collins v. Thompson, 679 F.2d 168 (9th Cir. 1982) 16
Commonwealth ex rel. Fortney v. Bartol, 342 Pa.
172, 20 A.2d 313 (1941) ........---eeees 11,22
Commonwealth v. Seagram Distillers Corp., 379 Pa.
411, 109 A.2d 184 (1954) ............4... 21
Crain v. First National Bank of Oregon, Portland,
324 F.2d 532 (9th Cir. 1963) ...........-. 11
Delaware Valley Citizens’ Council for Clean Air v.
Pennsylvania, 674 F.2d 976 (3d Cir.), cert.
denied, 459 U.S. 905 (1982) .............- 6
Delaware Valley Citizens’ Council for Clean Air v.
Pennsylvania, 533 F. Supp. 869 (E.D. Pa.),
aff’d, 678 F.2d 470 (3d Cir.) , cert. denied, 459
SR nc hice cecnessidacece 7
Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977),
cert. denied, 438 U.S. 916 (1978) .........-. 16
viii
Empire-Detroit Steel Division v. Occupational Safety
& Health Review Commission, 579 F.2d 378
EE ree ces ees adekeen ss 21
Federal Crop Insurance Corp. v. Merrill, 332 U.S.
RE ee 12, 23
Firefighters Local Union No. 1784 vy. Stotts, —
U.S. —, 104 S.Ct. 2576 (1984) ........... 19, 20
Fry v. United States, 421 U.S. 542 (1975) ....... 24
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ... 16
Independent Meat Packers Association v. Butz, 526
F.2d 228 (8th Cir. 1975), cert. denied, 424
he ck a eae eo wai 11
Liberty Mutual Insurance Co. v. Friedmaii, 639 F.2d
ee oe ers a bd ence adeaes 11
Luzerne Township v. Fayette County, 330 Pa. 247,
¢ S gf Spe ie nee 21,22
Marine National Exchange Bank v. Kalt-Zimmers
Manufacturing Co., 293 U.S. 357 (1934) .... 19
Metcalf v. Mitchell, 269 U.S. 514 (1926) ........ 24
Mott v. Pennsylvania Railroad Co., 30 Pa.9 (1858) — 11
Naples v. Maxwell, 368 F.2d 219 (6th Cir. 1966),
cert. denied, 386 U.S. 971 (1967) ......... 21
Nevels v. Hanlon, 656 F.2d 372 (8th Cir. 1981) .. 16
New York State Association for Retarded Children
v. Carey, 596 F.2d 27 (2d Cir.), cert. denied,
OE I ss « Sin be seo ue a-04.0.0 16
Northern Pacific Railway v. Minnesota, 208 US.
RS cical siya cash pained ane ae 24
Railroad Commission v. Los Angeles Railway, 280
EN Saas acai 6a Me cecdndien ke ee 19
Robinson v. Vollert, 602 F.2d 87 (5th Cir. 1979) 16
ix
Rock Island, Arkansas & Louisiana Railroad v.
United States, 254 U.S. 141 (1920) ........ 21
Sartin v. Commissioner of Public Safety, 535 F.2d
SID CU Cs PD eidwn dk Ceciaee. Heise 16
Scanlon v. Commonwealth, 502 Pa. 577, 467 A.2d
S508 40S es Osc), ROR 8, 15, 16, 19, 22
Shapp v. Sloan, 480 Pa. 449, 391 A.2d 595 (1978),
appeal dismissed sub nom. Thornburgh v.
Casey, 400.U5. 942 (9979) ..6..00.6005.. 10
Simmons v. Saul, 138 U.S. 439 (1891) ......... 19
Stone v. Mississippi, 101 U.S. 814 (1880) ....... 24
Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga.
SPE)... ocak hehe meres ieee ee 19
United States v. Armour & Co., 402 U.S. 673
SUOEEE when be oa Leer cake ee a eee 16
United States v. Beebe, 180 U.S. 343 (1901) ..... 21
United States v. California, 332 U.S. 19 (1947) ...21, 23
United States v. Northern Colorado Water Conser-
vancy District, 608 F.2d 422 (10th Cir. 1979) 16
United States v. 32.40 Acres of Land, 614 F.2d 108
CORR Re, Ph pce Se Pe es ee 24
United States v. Yazell, 382 U.S. 341 (1966) ..... 22
Utah Power & Light Co. v. United States, 243 USS.
SI Aes habia ELA RS AS ROE a eel « 21
Washington v. Penwell, 700 F.2d 570 (9th Cir.
Teee Gils ceemmes ls sae ees 14, 15, 16
West v. Bank of Commerce & Trusts, 167 F.2d 664
(G0 Con SORE i kid a a istiotioks 15,17
Youngstown Sheet & Tube Co. v. Sawyer, 343 USS.
See Claes eockc. Ba Se ee Aes 11
eee
FEDERAL CONSTITUTIONAL PROVISIONS:
United States Constitution, Article IV, §1 ........ 22
United States Constitution, Article IV, §4 ........ 14
STATE CONSTITUTIONAL PROVISIONS:
Pennsylvania Constitution, Article II, §1 ........ 10
Pennsylvania Constitution, Article III, §1 ........ 10
Pennsylvania Constitution, Article III, §24 ....... 10
Pennsylvania Constitution, Article IV, §1 ........ 10, 13
Pennsylvania Constitution, Article IV, §2 ........ 10
Pennsylvania Constitution, Article V, §1 ........ 10
Pennsylvania Constitution, Amendment XI, §1.... 13
FEDERAL STATUTES:
Clean Air Act, §101 et seq., as amended, 42 U.S.C.
§1857 et seq. (1976) (reclassified at 42 U.S.C.
yo 8 © Ro) yen erie 5, 6, 12
STATE STATUTES:
Pa. Stat. Ann. tit. 71, §523 (Purdon Supp. 1982-
eR .) a ne rr 7
Vehicle Code, §4701 et seq., 75 Pa. Cons. Stat. Ann.
§4701 et seq. (Purdon 1977) (amended, Pur-
don Supp. 1964-1965) .......66.08. 6,11, 12, 19
Vehicle Code, §4706, 75 Pa. Cons. Stat. Ann. §4706
(Purdon Supp. 1984-1985) .............. 8
RULES OF COURT:
ee ee ha ev a wane 16
xi
<< «
Petition—Opinions Below 1
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
Petitioners, the Commonwealth of Pennsylvania,
Thomas D. Larson, the Pennsylvania Secretary of Trans-
portation, and Nicholas DeBenedictis, the Pennsylvania
Secretary of Environmental Resources, hereby respectfully
petition this Court that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for
the Third Circuit which was entered in this case on Feb-
ruary 11, 1985.
I. OPINIONS OF THE COURTS BELOW
The opinion of the District Court dated April 13,
1984, denying the motion to vacate the consent decree,
and the opinion of the District Court dated April 26, 1984,
appointing a master, are not reported. These two opinions
are reproduced in the Appendix at 1a to 2a and at 3a to
6a, respectively.
On February 11, 1985, the Court of Appeals affirmed
the opinion of the District Court. This opinion is re-
ported at 755 F.2d 38 (3d Cir. 1985) and is printed in
the Appendix at 7a to 25a.
2 Jurisdiction and Constitutional Provisions
II. JURISDICTION
The judgment of the Court of Appeals was entered
on February 11, 1985. The jurisdiction of this Court is
invoked pursuant to 28 U.S.C. §1254(1).
III. CONSTITUTIONAL AND STATUTORY PRO-
VISIONS INVOLVED
1. United States Constitution, Article IV, §4:
“The United States shall guarantee to every State
in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive
(when the Legislature cannot be convened) against
domestic Violence.”
2. United States Constitution, Article IV, §1 (full
faith and credit clause) :
“Full Faith and Credit shall be given in each
State to the public Acts, Records, and Judicial Pro-
ceedings of every other State. And the Congress may
by general Laws prescribe the Manner in which such
Acts, Records and Proceedings shall be proved, and
the Effect thereof.”
3. Pennsylvania Constitution, Article II, §1:
“Legislative Power
The legislative power of this Commonwealth
shall be vested in a General Assembly, which shall
consist cf a Senate and a House of Representatives.”
|
Constitutionai Provisions 3
4. Pennsylvania Constitution, Article III, §1:
“Passage of Bills
No law shall be passed except by bill, and no
bill shall be so altered or amended, on its passage
through either House, as to change its original pur-
pose.”
5. Pennsylvania Constitution, Article IV, §1:
“Executive Department
The Executive Department of this Common-
wealth shall consist of a Governor, Lieutenant Gov-
ernor, Attorney General, Auditor General, State
Treasurer, and Superintendent of Public Instruction
and such other officers as the General Assembly may
from time to time prescribe.”
6. Pennsylvania Constitution, Article IV, §2:
“Duties of Governor; Election Procedure; Tie
or Contest
The supreme executive power shall be vested in
the Governor, who shall take care that the laws be
faithfully executed... .”’
7. Pennsylvania Constitution, Article V, §1:
“Unified Judicial System
The judicial power of the Commonwealth shall
be vested in a unified judicial system consisting of
the Supreme Court, the Superior Court, the Com-
monwealth Court, courts of common pleas, com-
munity courts, municipal and traffic courts in the
City of Philadelphia, such other courts as may be
provided by law and justices of the peace. All courts
and justices of the peace and their jurisdiction shall
be in this unified judicial system.”
Constitutional Provisions
8. Pennsylvania Constitution, Amendment XI, §1:
“Proposals of Amendments by the General As-
sembly and Their Adoption
Amendments to this Constitution may be pro-
posed in the Senate or House of Representatives; and
if the same shall be agreed to by a majority of the
members elected to each House . . .; and such pro-
posed amendment or amendments shall be submitted
to the qualified electors of the State .. .; and, if such
amendment or amendments shall be approved by a
majority of those voting thereon, such amendment or
amendments shall become a part of the Constitution.
93
Statement of the Case 5
IV. STATEMENT OF THE CASE
This action was commenced in July, 1976 by Dela-
ware Valley Citizens’ Council for Clean Air’ (hereinafter
“Delaware Valley”) against the Commonwealth of Penn-
sylvania and certain of its Executive Branch officials”
(hereinafter “state officials’). Delaware Valley sought
to compel the state officials to implement a motor vehicle
emission inspection and maintenance program (hereinafter
“I/M program’’) in fourteen of Pennsylvania’s 67 coun-
ties.“ Also named as a defendant was an official of the
United States Environmental Protection Agency, who was
asked by Delaware Valley to compel the state officials to
implement an I/M program. Delaware Valley based its
complaint on the Clean Air Act, 42 U.S.C. §1857 et seq.
1 Delaware Valley is a nonprofit corporation organized un-
der the laws of the Commonwealth of Pennsylvania
2 The named state officials are William T. Sherlock, Secre-
tary of the Pennsylvania Department of Transportation and
Maurice K. Goddard, Secretary of the Pennsylvania Department
of Environmental Resources. The present Secretary of the Penn-
sylvania Department of Transporiation is Thomas D. Larson;
the present Secretary of the Pennsylvania Department of En-
vironmental Resources is Nicholas DeBenedictis.
3The Pennsylvania General Assembly was not named as a
party to this action, although certain of its members moved un-
successfully to intervene as defendants.
4An emission inspection and maintenance program consists
of checking the tailpipe emissions (hydrocarbon and carbon
monoxide) of vehicles by means of an analyzer, and requiring
that vehicles which exceed a specified level of emissions have re-
pairs performed to lower their emissions to the specified level.
6 Statement of the Case
(1976) (since amended and reclassified at 42 U.S.C.
§7401 et seq. (1982)). In February, 1977, the United
States commenced a second suit seeking to compel the
state officials to implement an I/M program. As a result,
Delaware Valley agreed to the dismissal of the Environ-
mental Protection Agency official as a defendant in its ac-
tion.
On August 29, 1978, the parties entered into a con-
sent decree requiring the state officials to implement the
I/M program (60a to 80a). The consent decree was
entered into on the premise that state statutes, i.e., 75 Pa.
Cons. Stat. Ann. §4701 et seq. (Purdon 1977) (amended,
Purdon Supp. 1984-1985) , as they existed in 1978, granted
express authority to implement an I/M program. The con-
sent decree did not, as it could not, require that the Gen-
eral Assembly of Pennsylvania pass any form of legisla-
tion to implement the program. The consent decree pro-
vided, inter alia, for implementation of the I/M program
in ten counties in metropolitan Philadelphia and Pitts-
burgh, Pennsylvania by February 1, 1981, later extended
to November 1, 1981 by agreement of all parties.’
5On April 29, 1981, the state officials filed a motion with
the United States. District Court to modify the consent decree by
postponing the date for implementation of the I/M program to
January 1, 1983. Delaware Valley opposed this motion. On
May 20, 1981, the District Court denied this motion, and on June
16, 1981, the Court ordered the I1/M program to begin by May 1
1982. The Court of Appeals on March 1, 1982, upheld the order
of the District Court and on March 26, 1982, denied a petition
for rehearing en bane. Delaware Valley Citizens’ Couneil for
Clean Air v. Pennsylvania, 674 F.2d 976 (3d Cir. 1982). On
October 12, 1982 a Petition for Writ of Certiorari from the order
of March 1, 1982 was denied. 459 U.S. 905 (1982).
Statement of the Case 7
On October 5, 1981, the Pennsylvania General As-
sembly enacted H.B. 456, over the veto of Pennsylvania
Governor Dick Thornburgh, prohibiting the Pennsylvania
Department of Transportation or any other department or
agency of the Executive Branch of the Commonwealth from
spending any public funds for the I1/M program.® Pa. Stat.
Ann. tit. 71, §523 (Purdon Supp. 1982-1983) (repealed
1983) (“Act No. 1981-99”). Within two weeks of the
enactment of Act No. 1981-99 over the Governor’s veto,
the state officials sought to stay and to modify the 1978
consent decree because the passage of Act No. 1981-99 had
deprived them of any legal authority to spend money to
carry out the I/M program. Delaware Valley filed a mo-
tion to declare the state officials in civil contempt and to
impose sanctions.’
In 1981, other plaintiffs filed suit in state court rais-
ing the question of whether there existed any state authority
to implement an I/M program and to enter into the con-
sent decree. On May 10, 1982, the Commonwealth Court
of Pennsylvania found that the state statutes existing at
the time of the consent decree granted authority to imple-
ment an I/M program. Burd v. Commonwealth, 66 Pa.
Commonwealth Ct. 129, 443 A.2d 1197 (1982). In May,
6 Governor Thornburgh on December 28, 1979, successfully
vetoed H.B. 739, which sought to delay the I/M program.
7On January 22, 1982, the District Court granted the con-
tempt motion and withheld grants for highway projects in ten
counties. Delaware Valley Citizens’ Council for Clean Air v.
Pennsylvania, 533 F. Supp. 869 (E.D. Pa. 1982). On March 19,
1982, the Court of Appeals granted a stay and on May 21, 1982
affirmed the order of the District Court. 678 F.2d 470 (3d Cir.
1982). On November 1, 1982, a Petition for Writ of Certiorari
was denied. 459 U.S. 969 (1982).
8 Statement of the Case
1983, the General Assembly enacted Act 1983-3, codified
at 75 Pa. Cons. Stat. Ann. §4706 (Purdon Supp. 1984-
1985), which permitted an I[/M program to be operated
under certain circumstances. On October 26, 1983, the
Pennsylvania Supreme Court, after reviewing all state
statutes that could have provided the legislative authority
to implement an I/M program, reversed the 1982 Com-
monwealth Court decision, finding no state authority to
implement an 1/M program and no state authority to en-
ter into the consent decree. Scanlon v. Commonwealth,
502 Pa. 577, 467 A.2d 1108 (1983) (reproduced at 26a
to 55a). The Pennsylvania Supreme Court also held, as
a matter of constitutional government in Pennsylvania,
that Act 1983-3 did not retroactively grant any authority
to implement an I/M program or to enter into the consent
decree. Id. at 590, 467 A.2d at 1114-15 (41a to 42a).
A petition for reargument was denied on December 1, 1983
(56a). On January 9, 1984, the Commonwealth Court,
pursuant to the order of the Supreme Court, issued an
order which declared that the state officials did not have
the authority to enter into or to implement the consent de-
cree (57a to 59a).
On March 5, 1984, a motion to vacate the consent
decree was filed with the District Court. On April 13,
1984, the District Court issued a one-page opinion refus-
ing to vacate the consent decree (la to 2a). On April
26, 1984, the District Court issued an order appointing a
master and denying additional sanctions requested by
Delaware Valley (3a to 6a).
Thereafter, the state officials appealed both orders
to the Court of Appeals for the Third Circuit. On Febru-
ary 11, 1985, the Court of Appeals affirmed the District
em
Statement of the Case 9
Court’s judgment, maintaining the consent decree and the
master, even though it had been held that there was no
state authority to implement or to enter into the consent
decree. It is this decision which the state officials ask
this Court to review.
10 Reasons for Grenting the Writ
V. REASONS FOR GRANTING THE WRIT
A. The Circuit Court’s Opinion Raises Significant Ques-
tions Concerning the Constitutional Government of States
The instant case presents an important issue for re-
view: whether the constitutional framework of govern-
ment in a state, or even in the federal government, which
includes separation and balance of powers, can be altered
by the entry of a consent decree in a federal district court.
The government oi Pennsylvania, like that of most
of the states and of the United States, is “sunded on a Con-
stitution which provides for three separate and independent
branches of government—an Executive Branch (Article
IV, §§1-2), a Legislative Branch (Article Il, §1), and a
Judiciary (Article V, §1). In Pennsylvania, as in all the
states, state action must be founded upon authority de-
rived either directly from the state Constitution, or from
legislation duly promulgated by the Legislative Branch un-
der that Constitution (Article III, §1).
In Pennsylvania, the General Assembly has the sole
power under the Pennsylvania Constitution to pass legis-
lation. The Executive Branch may carry out only those
programs authorized by legislation. Shapp v. Sloan, 480
Pa. 449, 468-69, 391 A.2d 595, 604 (1978), appeal dis-
missed sub nom. Thornburgh v. Casey, 440 U.S. 942
(1979). In addition, the Pennsylvania Constitution, Ar-
ticle III, §24, expressly prohibits state agencies under the
Executive Branch from spending for purposes not specifi-
cally authorized by legislative appropriation. Ashbourne
Reasons for Granting the Writ 11
School v. Commonwealth, 43 Pa. Commonwealth Ct. 593,
598, 403 A.2d 161, 163-64 (1979).
it is also well established under Pennsylvania law
that the General Assembly cannot commit itself to the
passage of any legislation, and cannot bind a future As-
sembly to exercise or not exercise legislative power. Mott
v. Pennsylvania Railroad Co., 30 Pa. 9 (1858); see Com-
monwealth ex rel. Fortney v. Bartol, 342 Pa. 172, 174-75,
20 A.2d 313, 314 (1941). And neither the Executive
Branch, nor any attorney, can bind or agree to bind the
General Assembly to pass or not pass legislation. See
Commonwealth ex rel. Fortney v. Bartol.
Government in Pennsylvania is analogous to the fed-
eral government, with similar limitations. For the United
States, as for Pennsylvania, the power of the Executive
Branch is limited to recommending and enforcing laws;
and it may not subject the lawmaking power of Congress
to its control. Only Congress can pass laws. Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89 (1952).
Further, the Executive Branch may not act as a lawmaker
in the absence of delegation of authority from Congress,
Independent Meat Packers Association v. Butz, 526 F.2d
228, 235 (8th Cir. 1975), cert. denied, 424 U.S. 966
(1976); Liberty Mutual Insurance Co. v. Friedman, 639
F.2d 164 (4th Cir. 1981); and Congress may not delegate
or abdicate to anyone the power to enact laws. Crain v.
First National Bank of Oregon, Portland, 324 F.2d 532,
537 (9th Cir. 1963).
In the instant case the consent decree was initially
entered into by the Executive Branch on the presumption
that the Pennsylvania Vehicle Code, 75 Pa. Cons. Stat.
12 Reasons for Granting the Writ
Ann. §4701 et seq. (Purdon 1977) (amended, Purdon
Supp. 1984-1985), as it existed in 1978, granted authority
to implement an emission inspection program. The con-
sent decree did not, as it could not, require the General
Assembly to enact legislation to implement the program.
The Executive Branch, in entering into the consent decree,
did not, as it could not, agree to the enactment of any
future legislation. In entering into the consent decree, the
Executive Branch agreed only to implement an emission in-
spection and maintenance program as authorized by exist-
ing legislation.
The Pennsylvania laws relied on by the Executive
Branch in entering into the consent decree were subse-
quently challenged in the Pennsylvania courts. Burd v.
Commonwealth, 66 Pa. Commonwealth Ct. 129, 443 A.2d
1197 (1982), reversed sub nom. Scanlon v. Common-
wealth, 502 Pa. 577, 467 A.2d 1108 (1983). The liti-
gation in the state courts resulted in the Pennsylvania Su-
preme Court’s determination that existing Pennsylvania
law provided no legislative authority to implement an
emission inspection program and that the Executive Branch
had no authority to enter into the consent decree.
Although the litigation which resulted in the consent
decree arose under a federal statute (the Clean Air Act),
the emission inspection program agreed to in the consent
decree must necessarily be implemented and administered
by Pennsylvania agencies under state law; and questions
of state law and state agency authority necessarily arise.
This Court has recognized that government is not simply a
private litigant, nor is government partly public and partly
private. Federal Crop Insurance Corp. v. Merrill, 332
U.S. 380, 383-84 (1947). Any arrangement with a gov-
ih ite eet es
Reasons for Granting the Writ 13
ernment entity is subject to the scope of the authority of
that entity as established by law. See id. at 384. The
Circuit Court reviewed the instant case exclusively in terms
of federal law, 755 F.2d at 44 (21a), and ignored the
implication of Pennsylvania laws defining the scope of au-
thority to implement the consented to program.
The remarkable result is that the entire Common-
wealth government is bound by a consent decree, entered
into by the Executive Branch, to implement an emission
inspection program not authorized by the Legislative
Branch and found to be unauthorized by the Judicial
Branch, which determined also that the Executive Branch
had no authority to consent to such action. The decision
of the District and Circuit Courts thus elevates the com-
mitment of the Executive Branch above the limitations on
the Legislative and Judicial Branches imposed by the State
Constitution. The federal court decision essentially ele-
vates the consent decree to the status of an act of the Legis-
lature and provides that, under the aegis of the consent
decree, state action can be compelled, even though the
General Assembly, elected by the citizens of Pennsylvania,
has never authorized such action to be undertaken. One
branch of government usurps the power of the other two
branches and essentially assumes control. The power and
authority of the Legislative and Judicial Branches is
deemed irrelevant and surplusage. The entire organization
of state government is realigned. A government estab-
lished by the state Constitution with three equal and in-
dependent branches is reformed to consist of one branch,
which does not require legislation to implement any pro-
gram. The Constitution of Pennsylvania, approved by the
voters of the state (see Amendment XI, §1), is vacated
14 Reasons for Granting the Wirt
and rewritten. The republican form of government guaran-
teed by the United States Constitution, Article IV, §4, is
subverted. The decision of the federal courts so signifi-
cantly alters the concept of democratic, republican state
government that it should, it must, be reviewed by this
Court.
B. The Opinion of the Circuit Court Is in Conflict With
the Decisions of the Fourth and Ninth Circuits Holding
That Principles of Federalism Mandate That Federal Con-
sent Decrees Should Be Vacated When in Conflict With
State Law
In Washington v. Penwell, 700 F.2d 570 (9th Cir.
1983) , the Ninth Circuit affirmed the vacating of portions
of a consent decree, finding that state law applied and
that there was no authority under state law for those va-
cated sections. The consent decree in that case, between
Oregon prisoners and state prison officials, required ac-
cessible prison libraries and trained prisoner paralega's. -
The district judge subsequently determined that the con.
sent decree involved an undertaking to fund legal services
and concluded that the decree was unenforceable because
the state officials lacked authority to bind the state to such
a significant fiscal obligation. Jd. at 572. On appeal the
prisoners contended that the decree, although analyzed by
the district judge under principles of contract law, was no
longer a contract but a judicial act and that the state was
thus bound by the power of the court, not the contract.
The Ninth Circuit rejected this contention, holding that
strict application thereof ‘“‘would create an impermissible
constitutional confrontation between the federal court and
the state legislature.” Jd. at 573-74.
Reasons jor Granting the Writ 15
In West v. Bank of Commerce & Trusts, 167 F.2d
664, 666-67 (4th Cir. 1948), concerning the validity of
a consent decree to which a city was a party, the court
found that the city’s attorneys had no authority to prohibit
the legislative branch from exercising its powers, held that
parties may not stipulate about statutes and that courts are
required to disregard such stipulations, and ruled that
““. . . the decree was not binding upon the city and could
have been vacated or set aside on application by it... .”
The principles articulated in West operate with equal force
here. The decision of the Third Circuit is in clear conflict
with these principles and creates precisely the kind of ‘‘im-
permissible constitutional confrontation” the Ninth Circuit
avoided in Washington v. Penwell.
In the present case, the Pennsylvania Supreme Court
held, as a matter of state law, that there was no authority
to implement an I/M program and no authority to enter
into the consent decree and that such power could not be
conferred retroactively. Scanlon, 502 Pa. at 590, 467
A.2d at 1114-15 (41a to 42a). The Circuit Court’s de-
cision, in refusing to apply the general principles of con-
tract law in interpreting a consent decree and in failing to
apply the law of Pennsylvania, is in clear conflict with
holdings of the Fourth and Ninth Circuits.
Pennsylvania does not dispute the general principles
of res judicata and comity related by the Third Circuit.
The Circuit Court has missed the real issue, however, and
“put the rabbit in the hat’ by contending that Pennsyl-
vania is bound since a federal court consent decree is en-
titled to full faith and credit, 755 F.2d at 43-44 (18a to
21a). This may be so generally, but not where the state
statute upon which the decree is based is later found defi-
16 Reasons for Granting the Writ
cient. The Circuit Court’s novel and unprecedented ap-
plication of the doctrine of res judicata blindly ignores that
the decree lacked any statutory authority and will wreak
havoc on the republican form of government of the fifty
states and the federal government.
The Circuit Court’s decision, bluntly, permits Execu-
tive Branch officials, lawyers, or others simply to ignore
federal and state law by entering into consent agreements
which mandate programs and require the expenditure of
money without any statutory authority. Under the Cir-
cuit Court’s notion of res judicata, Pennsylvania is without
recourse to challenge such actions. This is a highly dis-
turbing and unprecedented action which this Court should
review.
Moreover, res judicata has no application here. In
the first place the Court of Appeals itself raised the issue
for the first time in its opinion. The Court found that the
issue of res judicata had not been presented to it (20a),
for the issue had not been raised before the District Court,
presented in the briefs, or addressed at oral argument.
Res judicata must be raised in the District Court and may
not be raised by the parties on appeal. Huffman v. Pur-
sue, Ltd., 420 U.S. 592, 607 n. 19 (1975); Nevels v. Han-
lon, 656 F.2d 372, 375-376 (8th Cir. 1981); Sartin v.
Commissioner of Public Safety, 535 F.2d 430, 433 (8th
Cir. 1976); Dellums v. Powell, 566 F.2d 167, 177 n. 13
(D.C. Cir. 1977) , cert. denied, 438 U.S. 916 (1978) ; Fed.
R. Civ. P. 8(c). Under these circumstances, reliance by
the Third Circuit on res judicata was clear error.
Second, a consent decree into which a governmental
body enters without authority to do so cannot be regarded
(AS sok ait athe Pict tl ee SO Dy NER GF SAAN Nba Pte
Reasons for Granting the Writ 17
as res judicata. West v. Bank of Commerce & Trusts, 167
F.2d at 667.
Finally, res judicata has no application here because
there is no identity of parties or subject matter. The issue
of state authority was never addressed by the federal courts
prior to the state Supreme Court opinion, which found that
there was no authority to implement the program or to
enter into the consent decree.
C. The Circuit Court’s Opinion Conflicts With Estab-
lished Legal Principles and With the Decisions of This
Court and of Other Circuit Courts
The decision of the Circuit Court is in conflict with
the decisions of this Court and of other Circuit Courts on
several issues. The issues are: (1) that state law applies
in determining the validity of a consent decree, (2) that
construction of a state statute and of state authority by a
state Supreme Court is binding on the federal courts, (3)
that the “four corners” doctrine applies to the interpreta-
tion of consent decrees, and (4) that government is not
bound nor estopped by any agreement where there is a
lack of authority to do or cause to be done what the law
does not sanction or permit.
1. The opinion of the Circuit Court is in conflict
with the well-established doctrine that general principles
of contract law apply to the interpretation of consent de-
crees and with the holding of the Ninth Circuit that the
law of the situs state applies in determining the validity
of a consent decree.
There can be no dispute that general principles of
contract law apply to the interpretation of consent decrees.
Collins v. Thompson, 679 F.2d 168, 170 (9th Cir. 1982) ;
18 Reasons for Granting the Writ
United States v. Armour & Co., 402 U.S. 673, 681-82
(1971); United States v. Northern Colorado Water Con-
servancy District, 608 F.2d 422, 430 (10th Cir. 1979);
Robinson v. Vollert, 602 F.2d 87, 92 (5th Cir. 1979);
New York State Association for Retarded Children v.
Carey, 596 F.2d 27, 37 (2d Cir.), cert. denied, 444 US.
836 (1979).
There can also be no serious dispute that the general
principles of contract law of the situs state apply in de-
termining the validity of the consent decree. Washington
v. Penwell, 700 F.2d at 573; Collins v. Thompson, 679
F.2d at 170.
The opinion of the Circuit Court ignores the principles
of contract law and is in conflict with well-established
federal and state law.
2. The opinion of the Circuit Court is in conflict
with the holding of the United States Supreme Court that
the construction of a statute and of state authority by the
state Supreme Court is binding on the courts of the United
States.
After reviewing all law of the situs state relevant to
the consent decree, the Pennsylvania Supreme Court, in
Scanlon, clearly held the interpretation of state law by the
parties to the consent decree, that there was authority to
implement an emission inspection program, to be errone-
ous, and found no statutory authority to implement an
emission inspection program and no authority to enter in-
to the consent decree. 502 Pa. at 586-87, 467 A.2d at
1112-13 (38a).
The powers of the state, which include authority of
its agencies and its personnel, flow purely from state law.
These powers are a question of state law. Arkansas v.
Reasons for Granting the Writ 19
Texas, 346 U.S. 368, 371 (1953); Railroad Commission
v. Los Angeles Railway, 280 U.S. 145, 152 (1929). The
construction of a statute and of state power by the state
Supreme Court is binding on the courts of the United States,
and the words of the state Supreme Court interpreting a
state law become the words of that statute. Simmons v.
Saul, 138 U.S. 439, 458 (1891); Railroad Commission,
280 U.S. at 152; Marine National Exchange Bank v. Kalt-
Zimmers Manufacturing Co., 293 U.S. 357, 363 (1934);
Stoner v. Fortson, 379 F. Supp. 704, 709 (N.D. Ga. 1974).
The Circuit Court refused to follow the prior hold-
ings of the United States Supreme Court by, in essence,
overruling a decision on state law by the Pennsylvania
Supreme Court that there was no state authority to imple-
ment an emission inspection program and no state authority
to enter into the consent decree.
3. The disregard by the Circuit Court of the “four
corners” doctrine presents a conflict with a prior holding
of the United States Supreme Court.
The consent decree was entered into on the sole
premise that the state statutes, as they existed in 1978,
granted express authority to implement an emission in-
spection program. The state statutes assumed to grant that
authority were 75 Pa. Cons. Stat. Ann. §4701 et seq.
(Purdon 1977) (amended, Purdon Supp. 1984-1985),
which contain the state authority to inspect vehicles. In
Scanlon, the Pennsylvania Supreme Court held that those
statutes did not contain any authority to implement an
emission inspection program.
As stated in Firefighters Local Union No. 1784 v.
Stotts, US. , 104 S.Ct. 2576, 2586 (1984), “The
‘scope of a consent decree must be discerned within its
20 Reasons for Granting the Writ
four corners, and not by reference to what might satisfy
the purposes of one of the parties to it’ or by what ‘might
have been written had the plaintiff established his factual
claims and legal theories in litigation.’” In Stotts, the
Supreme Court found that there was no express mention of
layoffs in the consent decree; that the city did not intend
to depart from the existing seniority system; and that, for
any intention of the city to depart from the existing system,
there would have been an express provision to that effect.
USS. at , 104 S.Ct. at 2586. In the present case,
there is no commitment to the passage of any legislation
within the four corners of the consent decree, and state
law and constitutional government prohibit any such com-
mitment. Any commitment to pass legislation, even though
it would be invalid, would be so extraordinary that there
would have been an express provision to that effect in the
consent decree. There is no such express provision in the
consent decree for this extraordinary and invalid commit-
ment.
The Circuit Court failed to consider the four corners
doctrine, even when presented with the holding of the
Pennsylvania Supreme Court that there was no state au-
thority to implement an emission inspection program or to
enter into the consent decree.
4. The failure of the Circuit Court to follow the
well-established law, that government is not bound or
estopped by any agreement where there is a lack of au-
thority or an agreement to do or cause to be done what
the law does not sanction or permit, presents conflicts with
the holdings of numerous other Circuit Courts.
There can be no dispute with the legal principle that
an attorney cannot bind the General Assembly to pass any
nos Oa Ne pel Anica ans Whalen oti
Koh ht Gas Anat nd PaO Ihe athe title We te ln ld
A li
td Fel Ded
Reasons for Granting the Writ 21
legislation and any such a commitment, even though never
made, would be beyond the authority of any attorney.
The law is that the government it not bound by agreements
of its agents acting beyond the scope of their authority,
Empire-Detroit Steel Division v. Occupational Safety &
Health Review Commission, 579 F.2d 378, 383 (6th Cir.
1978), and that one is presumed to be aware of all re-
quirements and limitations when they deal with the govern-
ment. Rock Island, Arkansas & Louisiana Railroad v.
United States, 254 U.S. 141, 143 (1920). Rights held by
the government cannot be given up by the unauthorized
actions of government employees. United States v. Cali-
fornia, 332 U.S. 19, 40 (1947). Government is not bound
and not estopped by acts of its officers or agents in enter-
ing into an agreement to do or to cause to be done what
the law does not sanction or permit. Utah Power & Light
Co. v. United States, 243 U.S. 389, 409 (1917).
In United States v. Beebe, 180 U.S. 343 (1901), the
Supreme Court invalidated a sixteen-year-old court order,
finding that the United States Attorney who agreed to the
order had no authority to do so. In Naples v. Maxwell,
368 F.2d 219 (6th Cir. 1966), cert. denied, 386 U.S. 971
(1967), the court vacated an order because of a lack of
authority of a state attorney. The same principles that
apply to attorneys and agents of the United States apply
with equal force to those of any of the states. These same
principles are in fact the law of Pennsylvania. See, e.g.,
Central Storage & Transfer Co. v. Kaplan, 37 Pa. Com-
monwealth Ct. 105, 116, 389 A.2d 711, 717 (1978), aff'd,
487 Pa. 485, 410 A.2d 292 (1979); Commonwealth v.
Seagram Distillers Corp., 379 Pa. 411, 417, 109 A.2d 184,
188 (1954); Luzerne Township v. Fayette County, 330
22 Reasons for Granting the Writ
Pa. 247, 252, 199 A.2d 327, 330 (1938); Commonwealth
ex rel. Fortney v. Bartol, 342 Pa. at 174-75, 20 A.2d at
314 (an agreement by an attorney, after a mandamus ac-
tion, to have a municipal ordinance enacted was invalid
and ineffective to bind a legislative body) .
In Scanlon, the Pennsylvania Supreme Court held
that there was no state authority to enter into the consent
decree.
The opinion of the Circuit Court is in clear conflict
with these state and federal court decisions.
D. The Circuit Court’s Opinion Represents an Improper
and an Unwarranted Application of the Full Faith and
Credit Clause To Override and Impair Valid State
Interests
The Circuit Court, through its unwarranted reliance
on res judicata (discussed above in Section B), invoked
the full faith and credit clause of the United States Con-
stitution, Article IV, §1, 755 F.2d at 43-44 (18a to 21a),
to override and to harm, significantly and substantially,
valid state interests.
In holding that the judgments of the federal courts are
binding on the Pennsylvania Supreme Court, the Third Cir-
cuit has unequivocally declared that the state laws impli-
cated in the consent decree and the interpretation of those
state laws by a state Supreme Court do not matter (21a).
The Circuit Court, although never having previously con-
sidered the state statutes, has failed to give full faith and
credit to the opinion of the state Supreme Court, the only
court to have ruled on that state law, even though the con-
struction of a state statute by a state Supreme Court is bind-
Reasons for Granting the Writ 23
ing on the federal courts. These state laws, insofar as they
bear upon the consent decree, are in effect superseded.
Such a consequence is contrary to any purpose of the full
faith and credit clause and to the directive of this Court
that state interests “should be overriden by the federal
courts only where clear and substantial interests of the
National Government, which cannot be served consistently
with respect for such state interests, will suffer major dam-
age if state law is applied.” United States v. Yazell, 382
U.S. 341, 352 (1966).
Here it is the “clear and substantial interests” of the
State government which “will suffer major damage” if state
law is not applied. Contrary to the premise of the Circuit
Court that not vacating the consent decree poses no harm
to the Commonwealth, 755 F.2d at 45 (23a), the harm is
real and significant. The harm is to the basic structure of
constitutional government, the legislative process, the
budgetary process, the administrative organization and the
integrity of the law itself.
As recognized by the Supreme Court in Federal Crop
Insurance Corp. v. Merrill, 332 U.S. at 383-84, govern-
ment is not just another private litigant and is not partly
public or partly private. The government holds its inter-
est in trust for all the people and may not be deprived of
those interests by ordinary court rules designed for private
disputes. United States v. California, 332 US. at 40.
Governmental interests encompass areas ranging from the
State Constitution, constitutional government, the state
statutes, and the democratic governmental interests of the
people of Pennsylvania, to areas which involve interests in
property. Even for governmental interests in property,
these interests cannot be lost where there is a lack of au-
24 Reasons for Granting the Writ
thority or where government agencies have been negligent.
Id. The strong policy of protecting the public treasury
from fraud and corruption was stated in United States v.
32.40 Acres of Land, 614 F.2d 108, 114 (6th Cir. 1980).
The exercise of the police power of the state is such a
crucial element uf government that it cannot be contracted
away or compromised. Stone v. Mississippi, 101 U.S. 814
(1880) ; Northern Pacific Railway v. Minnesota, 208 U.S.
583 (1908). In short, courts on numerous occasions have
recognized the impairment of governmental interests that
would result from lack of authority on the part of those
signing for the government and have acted to prevent such
impairment by vacating consent decrees or judgments de-
void of such authority.
The harm to which the failure to vacate the consent
decree exposes the state officials is aggravated by their
being subject to court supervision in general in administer-
ing the I/M program. In particular, they are subject to a
court-appointed master, to contempt motions by any plain-
tiff, to the requirement of court approval for changes in the
emission inspection program. In addition, significantly at
risk here is Pennsylvania’s “‘ability to function effectively
in a federal system.”” Fry v. United States, 421 U.S. 542,
547 n. 7 (1975). As long as the consent decree remains
unvacated, its unavoidable effect is to “curtail in [a] sub-
stantial manner the exercise of [Pennsylvania’s] powers,”’
Metcalf v. Mitchell, 269 U.S. 514, 523 (1926), contrary
to the principles of the federal system. The opinion of
the Third Circuit also establishes an unacceptable prece-
dent. This erroneous extension and application of the full
faith and credit clause mandates review by the Supreme
Court.
Reasons for Granting the Writ 25
VI. CONCLUSION
For the foregoing reasons, Petitioners respectfully re-
quest that a writ of certiorari issue to review the judgment
of the Court of Appeals for the Third Circuit in this case.
Respectfully submitted,
Jay C. WALDMAN
General Counsel
Office of General Counsel
SPENCER A. MANTHORPE
Chief Counsel
« Department of Transportation
JOHN W. CARROLL
Acting Chief Counsel
Department of Environmental
Resources
JOHN M. HRUBOVCAK
Assistant Counsel
Department of Transportation
By: JOHN P. KRILL
Deputy General Counsel
Office of General Counsel
Attorneys for Petitioners
Order, April 13, 1984, U.S. Dist. Ct. la
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Actions
No. 76-2068
DELAWARE VALLEY CITIZENS’ COUNSEL FOR
CLEAN AIR, et al.
v.
COMMONWEALTH OF PENNSYLVANIA, ez al.
and
No. 77-0619
UNITED STATES OF AMERICA
V.
COMMONWEALTH OF PENNSYLVANIA, et al.
ORDER
AND NOW, TO WIT, this 13th day of April, 1984,
presently before the court is defendants’ motion to vacate
the consent decree entered into by the parties on August
30, 1978. The reasons advanced by defendants are in-
sufficient to set aside a valid consent decree entered into
by the parties many years ago and which arose out of an
2a Order, April 13, 1984, U.S. Dist. Ct.
intense adverserial atmosphere, an atmosphere which con-
tinues to exist to this present day. The consent decree,
its ramifications, and plaintiffs’ rights under the consent
decree have been subject repeatedly to careful review and
approval by both the Third Circuit Court of Appeals and
the United States Supreme Court. This court refuses to
put plaintiffs in a position whereby enforcement of the
rights plaintiffs have acquired throughout this extensive
litigation would be in defendants’ hands. Accordingly, IT
IS ORDERED that defendants’ motion to vacate the con-
sent decree is denied.
(s) Louis C. Bechtle
Louis C. Bechtle, J.
Order, April 26, 1984, U.S. Dist. Ct. 3a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Actions
No. 76-2068
DELAWARE VALLEY CITIZENS’ COUNCIL FOR
CLEAN AIR, et al.
Vv.
COMMONWEALTH OF PENNSYLVANIA, et al.
and
No. 77-0619
UNITED STATES OF AMERICA
Vv.
COMMONWEALTH OF PENNSYLVANIA, et al.
ORDER
AND NOW, TO WIT, this 26th day of April, 1984,
in accordance with the provisions of Federal Rule of Civil
Procedure 53(b), the court finds that an exceptional con-
dition has emerged warranting the appointment by the
court of a Special Master to assist and advise the court in
respect to the within proceedings. That exceptional con-
dition is the likely prospect that the defendants will not
comply with a requirement of this court set forth in its
Order of May 16, 1983, to the effect that by June 1, 1984,
4a Order, April 26, 1984, U.S. Dist. Ct.
the defendants shall cause the commencement of an auto
emissions program for the Philadelphia/Allentown/Pitts-
burgh regions of the Commonwealth. The court incor-
porates herein by reference in support of its finding of an
exceptional condition the findings and holdings in all pre-
vious decisions of record in this federal court proceeding.
Furthermore, the exceptional condition has arisen by
reason of the presentation by the Commonwealth during
the hearing held this day that the prospect of failing to
proceed with the program by June 1, 1984, has been made
more likely by the failure of the Commonwealth to either
consider or adopt a series of reasonable and obvious alter-
natives in respect to what the Commonwealth has uncon-
vincingly characterized as a scheduling inability which the
Commonwealth concedes existed as far back as June 22,
1983, and which the Commonwealth Court found in its
decision of April 25, 1984, to have been even earlier, on
June 2, 1983.
The court empowers the Special Master to enter up-
on this matter for the purpose of making findings and
recommendations to the court in respect to:
1. The formulation, adoption and status of regula-
tions for emission analyzers, including the extent to which
emergency regulations can be promulgated and adopted.
2. The present status and a periodic status of the
purchase and sale of auto emission analyzers.
3. The present status and a periodic status of Com-
monwealth Phase II certifications of emission inspection
stations.
4. The present status and a periodic status of de-
livery of auto emission analyzers to inspection stations.
Order, April 26, 1984, U.S. Dist. Ct. 5a
5. The present status and a periodic status of the
training and certification of personnel who will be part
of the operating function of the program.
6. The status and progress of the presently sched-
uled advertising, public relations, and other indoctrination
type of programs leading up to and beyond June 1, 1984.
7. The status and progress in regard to the consumer
complaint stations in Pittsburgh, Allentown, and Philadel-
phia.
The Special Master shall have the power under this
reference, in order to prepare his reports to the court, to
travel to such places within and without the Common-
wealth as his duties require, and to personally investigate
by examination, study, or interview, any documents,
places, or persons that the Special Master believes have
the knowledge necessary for him to fulfill his duties. He
shall further be empowered to apply to the court for the
issuance of appropriate process, including subpoenas, to
issue notices and commence the full range of discovery
provided for under Federal Rules of Civil Procedure 26 to
36 inclusive, and to move the court for the imposition of
sanctions under Federal Rule of Civil Procedure 37. The
Special Master shall also have the right to convene hear-
ings for the purpose of taking testimony, including the
right to issue subpoenas in the name of the court for the
appearance of persons whose testimony is required. The
Special Master shall conform as nearly as possible to the
procedures presently prevailing in the United States Dis-
trict Court for the Eastern District of Pennsylvania in re-
spect to the convening of such hearings, including, when-
ever practicable, the convening of such hearings in the
United States Courthouse at 6th and Market Streets, Phila-
delphia, Pennsylvania. The Special Master shall be au-
6a Order, April 26, 1984, U.S. Dist. Ct.
thorized to employ such administrative and support per-
sonnel as will allow him to fulfill the full range of duties
authorized by this Order, including contracting for the
services of court reporters in order to transcribe testimony
which the Special Master believes must be preserved.
The court shall compensate the Special Master upon
application by him at the rate that the court shall deter-
mine is fair and reasonable in accordance with prevailing
standards for setting such rates in the United States courts.
The Special Master is notified by this Order that the de-
termination by the court will include an assessment by the
court of an hourly rate that is appropriate for the Special
Master in keeping with his knowledge, education, experi-
ence and skill, together with consideration by the court of
the nature of the task performed by the Special Master in
the fulfillment of his duties. In addition, the Special Mas-
ter shall keep an accurate record of all out-of-pocket costs
and expenses, including any necessary support costs for
additional personnel, which record shall be submitted to
the court separately.
By this Order the court appoints William J. Winning,
Esquire, Suite 1200, 400 Market Street, Philadelphia,
Pennsylvania 19106, as Special Master.
The court finds Mr. Winning is fully qualified to
fulfill the duties governed by this Order. Mr. Winning
is a graduate of the Villanova University School of Law,
having graduated in 1973, following which he entered in-
to public service which included five years with the United
States Attorney’s Office in the Eastern District of Penn-
sylvania, and he has been in private practice since 1978.
SO ORDERED.
(s) Louis C. Bechtle
Louis C. Bechtle, J.
Opinion, Court of Appeals 7a
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 84-1332
DELAWARE VALLEY CITIZENS’ COUNCIL FOR
CLEAN AIR, ET AL., AMERICAN LUNG ASSOCIA-
TION OF PHILADELPHIA, AND MONTGOMERY
COUNTY, DELCHESTER LUNG ASSOCIATION,
SIERRA CLUB, PENNSYLVANIA CHAPTER FRIENDS
OF THE EARTH OF THE DELAWARE VALLEY,
CITIZENS’ COMMITTEE FOR ENVIRONMENTAL
CONTROL, QUINN, KEVIN, FARRELL, KAYSI,
WEISS, RUTH G. KLINKNER, JOHN, BIEZ, ELIZA-
BETH S., SHULMAN, MONA
VS.
COMMONWEALTH OF PA., & TRAIN, RUSSELL, E.,
Ind. & as ADMINISTRATOR of the ENVIRONMEN-
TAL PROTECTION AGENCY, ET AL., SHERLOCK,
WILLIAM T., Individually and as Secretary of the PA
Dept. of Transportation, GODDARD, MAURICE K., Indi-
vidually and as Secretary of the PA Dept. of Environmen-
tal Resources, SNYDER, DANIEL J., III, Individually and
as Regional Administrator of the Environmental Protec-
tion Agency, Region III ;
(D.C. Civil 76-2068)
UNITED STATES OF AMERICA
vs.
COMMONWEALTH OF PENNSYLVANIA; THE
PENNSYLVANIA DEPARTMENT OF TRANSPORTA-
TION and WILLIAM T. SHERLOCK, SECRETARY
8a Opinion, Court of Appeals
OF THE PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION; THE PENNSYLVANIA DE-
PARTMENT OF ENVIRONMENTAL RESOURCES and
MAURICE K. GODDARD, SECRETARY OF THE
PENNSYLVANIA DEPARTMENT OF ENVIRONMEN-
TAL RESOURCES
(D.C. Civil 77-619)
Commonwealth of Pennsylvania, Secretary of Pennsylva-
nia Department of Transportation and Secretary of Penn-
sylvania Department of Environmental Resources,
Appellants
Appeal from the United States District Court
for the Eastern District of Pennsylvania
Argued
December 6,-1984
Before: ALDISERT, Chief Judge,
BECKER, Circuit Judge, and
STERN, District Judge.*
(Filed February 11, 1985)
John M. Hrubovcak, Esquire (Argued)
Assistant Counsel
Spencer A. Manthorpe, Esquire
Chief Counsel
* Honorable Herbert J. Stern of the United States District
Court for the District of New Jersey, sitting by designation.
Opinion, Court of Appeals 9a
Commonwealth of Pennsylvania
Office of Chief Counsel
Department of Transportation
Harrisburg, Pennsylvania 17120
Counsel for Appellant Commonwealth of Pennsyl-
vania
F. Henry Habicht, II, Esquire
Assistant Attorney General
Jacques B. Gelin, Esquire
Maria A. lizuka, Esquire (Argued)
Department of Justice
9th & Penn Avenue, N.W.—Room 2339
Washington, D.C.
Counsel for Appellee United States
Jerome Balter, Esquire (Argued)
Public Interest Law Center of Philadelphia
1315 Wainut Street, Suite 1632
Philadelphia, Pennsylvania 19107
Counsel for Appellee Delaware Valley Citizens’
Council
OPINION OF THE COURT
ALDISERT, Chief Judge.
The Commonwealth of Pennsylvania finds itself be-
tween a rock and a hard place. A consent decree entered
in August 1978 by the federal court commands it to im-
plement a vehicle emission inspection and maintenance
program. At the same time, its own state court system
by an order dated January 9, 1984, enjoins it from carry-
ing out the federal decree. The January Pennsylvania
10a Opinion, Court of Appeals
court order implemented a decision by that state’s supreme
court determining that the parties to the federal consent
decree lacked the authority to consent to establishing and
implementing an auto emissions inspection program and
ordered that ‘“‘an injunction should issue enjoining [the
state] from performing the terms and conditions of the
consent decree.” Scanlon v. Commonwealth of Pennsyl-
vania, 502 Pa. 577, 590, 467 A.2d 1108, 1115 (1983).
Bearing such formidable instructions from its own
court system, the Commonwealth applied for relief in the
district court under motions pursuant to Rule 60(b),
Federal Rules of Civil Procedure, to vacate the 1978 con-
sent decree.’ The district court refused relief, and this
appeal followed. We affirm.’
Although our court is no stranger to this marathon
litigation, see 674 F.2d 970 (3d Cir.), cert. denied, 458
1 Rule 60(b) provides in relevant part :
On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final
judgment, order, or proceeding for the following reasons:
. . . (5) the judgment has been satisfied, released, or dis-
charged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application: or
(6) any other reason justifying relief from the operation
of the judgment.
2The Commonwealth's Notice of Appeal indicates that ap-
pellants also appeal from the district court’s order of April 26,
1984 appointing a special master pursuant to Rule 53(b), F. R.
Civ. P. This issue, however, was not addressed in appellants’
brief, reply brief or at oral argument. Accordingly, we hold
that appellants have waived this issue on appeal.
Opinion, Court of Appeals ila
U.S. 1125 (1982), 674 F.2d 976 (3d Cir.), cert. denied,
459 U.S. 905 (1982), 674 F.2d 987 (1982), 678 F.2d
470 (3d Cir.) , cert. denied, 459 U.S. 969 (1982), a brief
chronology of the critical events surrounding the pro-
cedural history is necessary. The Delaware Valley Citi-
zens’ Council for Clean Air and others (Delaware Valley)
and the United States separately sought a mandatory in-
junction in the federal courts to require Pennsylvania to
implement a vehicle emission and maintenance program.
Pennsylvania had failed to implement such a program as
required by the federal Environmental Protection Agency
(EPA). In August 1978 the Commonwealth parties en-
tered into a consent decree with Delaware Valley and the
United States obligating Pennsylvania to seek state legis-
lation to establish a franchise inspection and maintenance
system wherein the state would award contracts to indi-
vidual persons to carry out the inspection function. The
decree provided that if the necessary legislation were not
enacted the Pennsylvania Department of Transportation
(PennDot) would, under its own authority, establish a
private garage inspection and maintenance system where-
by the Commonwealth would certify private facilities to
perform the inspections. Pennsylvania’s General As-
sembly did not so act and PennDot proceeded under the
second alternative to establish a private garage system.
In April and June, 1980, various Pennsylvania state
legislators petitioned in the district court to intervene,
arguing that their rights as legislators were being usurped
by the enforcement of the consent decree. The district
court denied intervention. On appeal, this court affirmed,
674 F.2d 970 (3d Cir. 1982), determining that the pro-
posed intervenors were not entitled to intervene as a matter
of right under Rule 24 (a) (1), Federal Rules of Civil Pro-
12a Opinion, Court of Appeals
cedure, because the proposed intervenors failed to demon-
strate that their interests were not adequately represented,
and that the district court did not abuse its discretion in
denying permissive intervention because of the untimeli-
ness of the intervention petitions. The legislators’ peti-
tion for certiorari was denied. 458 U.S. 1125 (1982).
In April 1981, Pennsylvania moved to modify the
consent decree, seeking both an extension of time for im-
plementation and a stay of the existing implementation
order. The district court denied the motions and found
that the Commonwealth was in violation of the conseni
decree. On appeal we affirmed, 674 F.2d 976 (3d Cir.),
cert. denied, 459 U.S. 905 (1982). In June 1981, the
Pennsylvania legislature enacted H.B. 456, 71 Pa. Cons.
Stat. Ann. §523 (1981), which prohibited the expendi-
ture of any funds for an emission inspection and mainte-
nance program. In August 1981, various Pennsylvania
state legislators filed actions in the state court seeking a
declaratory judgment that the Pennsylvania parties lacked
authority to enter into the federal court consent decree.
In October 1981, Pennsylvania moved to modify the con-
sent order in light of H.B. 456 and Delaware Valley moved
to have the Pennsylvania parties declared in civil contempt
and requested sanctions.
In January 1982, the district court denied Pennsyl-
vania’s motion to modify and found the Commonwealth,
the Secretary of PennDot, and the Secretary of the Penn-
sylvania Department of Environmental Resources in civil
contempt. As a sanction, the court ordered the Secretary
of the United States Department of Transportation to re-
frain from approving any projects or awarding any grants
for highways in areas in the Commonwealth covered by
Opinion, Court of Appeals 13a
the consent decree other than for the purposes of safety,
mass transit, or transportation projects related to air
quality improvement or maintenance. On March 5, 1982,
the EPA proposed to withhold Clean Air Act funds—ap-
proximately $700,000—from PennDot and the Pennsyl-
vania Department of Environmental Resources. The dis-
trict court orders were affirmed by this court. 678 F.2d
470 (3d Cir. 1982). In affirming the district court, we
asserted that the Commonweaith “itself was and remains
bound by the consent decree,” noting that the Pennsyl-
vania Department of Justice, members of which were
signatories of this decree, has the exclusive power to com-
promise and settle lawsuits against the Commonwealth.
Id. at 475. Again the Supreme Court denied a petition
for certiorari. 459 U.S. 969 (1982).
In May 1983, the Pennsylvania legislature enacted
Act 3 of 1983, 75 Pa. Cons. Stat. Ann. §4706(b) (1983),
which created an exception to H.B. 456, and permitted
the establishment of an emission inspection and mainte-
nance program when required by federal law ahd when
necessary to avoid the loss of federal funds. Following
enactment of this statute, the district court lifted the Janu-
ary sanctions.
In October 1983, the Pennsylvania Supreme Court
held that the state officials had no authority to enter into
the federal consent decree in 1978, ruled that the federal
decree was “a nullity,” 502 Pa. at 590, 467 A.2d at 1115,
and remanded the case to its Commonwealth Court which,
in January 1984, enjoined PennDot from respecting the
terms of the federal decree. In March 1984, the Common-
wealth asked the district court to vacate the 1978 consent
decree under motions brought under Rule 60(b) (5) and
14a Opinion, Court of Appeals
(6). The district court denied the motions in Apri! 1984.
This appeal followed.
Il.
We review the district court actions involved here
under an abuse of discretion standard. United States
Steel Corp. v. Fraternal Association of Steelhaulers, 601
F.2d 1269, 1274 (3d Cir. 1979). Understandably, the
Commonwealth appellants contend that the district court
abused its discretion in refusing to open the consent de-
cree, arguing that Scanlon v. Commonwealth of Pennsyl-
vania, 502 Pa. 577, 467 A.2d 1108 (1983), compelled
the district court to vacate the consent decree. Informed
by its own court system that the federal consent decree
was “a nullity,”’ it asked to be relieved from the discom-
fort of being ordered by the federal court system to obey
an injunction and ordered by its own state court system to
ignore it. Because of the obvious comity sensitivities pres-
ent, we are in the unfortunate position of analyzing a de-
cision of the highest court of a sovereignty that in turn
had analyzed a federal case and made a determination that
the federal decree was null and void.
But it is not necessary for courts of two separate
sovereignties to get into a “‘’tis! t’aint!’’ colloquy on the
merits of this dispute. Rather, the resolution of this par-
ticular dispute turns on the efficacy of final judgments
rendered by the federal court system.
This is not a diversity case in which the controlling
legal precepts are found in the body of state substantive
law. The consolidated cases were filed in the federal dis-
trict court under the federal Clean Air Act, as amended,
42 U.S.C. §§7401-7642, which requires each state to sub-
mit a state implementation plan for the attainment and
Opinion, Couri of Appeals 15a
maintenance of national ambient air quality standards for
each air quality control region in the state. After the state
failed to implement the emission inspection and mainte-
nance program, the Delaware Valley group instituted a
citizens’ action on June 29, 1976, pursuant to 42 U.S.C.
§7604, against the Commonwealth of Pennsylvania, the
Secretary of the PennDot, the Secretary of the Pennsyl-
vania Department of Environmental Resources, and the
administrator and regional administrator of the Environ-
mental Protection Agency. The plaintiffs requested an or-
der to enforce the Pennsylvania state implementation plan
requirement for the implementation of the program in the
Philadelphia and Pittsburgh areas. After the EPA issued
notices of violation to the Governor of Pennsylvania and
the Secretary of PennDot, on February 18, 1977, the
United States instituted its own suit against the Common-
wealth of Pennsylvania and certain of its departments and
officers pursuant to 42 U.S.C. §7413(b) to enforce the
Pennsylvania implementation plan. Clearly the federal
courts had federal question jurisdiction. It is equally clear
that what was attacked collaterally in the state court sys-
tem was a final federal court judgment and that the dis-
pute implicated federal law.
Much of the Pennsylvania Supreme Court’s rationale
for its holding that the federal decree was a nullity stems
from its conclusion that the Commonwealth could not be
bound where the consent decree was signed only by the
“counsel for Pennsylvania Department of Transportation’
and ‘“‘counsel for Pennsylvania Department of Environ-
mental Resources.” This appears to be a collateral attack
on this court’s prior holding in Delaware Valley Citizens’
Council for Clean Air vs. Commonwealth of Pennsylvania,
678 F.2d 470, where we had the precise issue before us.
16a Opinion, Court of Appeals
We determined that
the Commonwealth itself was and remains
bound by the consent decree. . . . By its terms “[t]he
provisions of this Consent Decree apply to the De-
fendants Commonwealth of Pennsylvania, . . . and
to each of the officers, agents, employees and suc-
cessors of said parties.’”” This Court has previously
noted that the Pennsylvania Department of Justice,
members of which were signatories of this decree,
has the exclusive power to compromise and settle law
suits against the Commonwealth. . . . And in this case,
we have also recently noted that the Attorney Gen-
eral, who heads the Department of Justice, has repre-
sented the Commonwealth in this litigation from the
time the complaint was filed, through the negotiation
and signing of the consent decree, and up to the
present.
678 F.2d at 475 (citations omitted). See also Vecchione
v. Wohlgemuth, 426 F. Supp. 1297 (E.D. Pa.), aff'd 558
F.2d 150 (3d Cir.), cert. denied, 434 U.S. 943 (1977).
It scarcely need be reiterated here that the relief from a
3 There the district court noted :
We would .. . be gravely concerned about any view
that would bind us to regard a violation of the internal au-
thorization proceduves of the Commonwealth Department of
Justice as a basis for invalidating a factual stipulation en-
tered into in the course of litigation. The Justice Depart-
ment’s responsibility is to supervise its duly appointed as-
sistant attorneys general during litigation and not years
afterward, and to stand behind representations and _ stipu-
lations which its legal representatives made in a court of
law.
426 F. Supp. at 1308 n. 21.
Opinion, Court of Appeals 17a
decision of this court in a federal case can be obtained
only from the United States Supreme Court and not from
the Supreme Court of Pennsylvania.
Unsuccessful in the district court and this court, and
rebuffed by the United States Supreme Court, members
of the Pennsylvania legislature, as private litigants, at-
tempted a collateral attack on the several final judgments
of the federal courts—both trial and appellate. What
was attempted in the state courts and the ostensible relief
granted by the state’s highest court, of course, flies in the
face of settled law and the doctrine of res judicata. The
issue is not novel. The attempt has been made before.
But the United States Supreme Court has issued clear in-
structions when collateral attacks on final federal court
judgments are attempted by state court systems:
Congress . . . has in no way relaxed the old and
well-established judicially declared rule that state
courts are completely without power to restrain fed-
eral-court proceedings in in personam actions like the
one here. And it does not matter that the prohibition
here was addressed to the parties rather than to the
federal court itself. For the heart of the rule as de-
clared by this Court is that:
“Where the jurisdiction of a court, and the
right of a plaintiff to prosecute his suit in it, have
once attached, that right cannot be arrested or taken
away by proceedings in another court. . . . The fact,
therefore, that an injunction issues only to the parties
before the court, and not to the court, is no evasion
of the difficulties that are the necessary result of an
attempt to exercise that power over a party who is
a litigant in another and independent forum.”
18a Opinion, Court of Appeals
Donovan v. City of Dallas, 377 U.S. 408, 413 (1964),
quoting Peck v. Jenness, 7 How. 612, 625 (1849).
The Supreme Court of the United States is the final
arbiter of conflicts between the several sovereignties un-
der our federal system. Thus, although Congress imple-
mented the Constitution’s full faith and credit clause of
Article IV, §1, in language referring only to state courts,"
there ‘‘is a clearly established rule that state courts must
give full faith and credit to the proceedings of federal
courts[.] That this is the rule is beyond doubt, and the
state courts have generally accepted it.” Degnan, Feder-
alized Res Judicata, 85 Yale L. J]. 741, 744 (1976); see also
18 C. Wright, A. Miller & E. Cooper, Federal Practice and
Procedure §4468 (1981) (“It would be unthinkable to
suggest that state courts should be free to disregard the
judgments of federal courts. . .”’). The Supreme Court
has consistently assumed that the implementing statute re-
quires such recognition. Thus, in Embry v. Palmer, 107
U.S. 3 (1882), the Court concluded that ‘‘the judgments
#28 U.S.C. §1738 provides in pertinent part :
The records and judicial proceedings of any court of
any such State, Territory or Possession, or copies thereof,
shall be proved or admitted in other courts within the United
States and its Territories and Possessions by the attestation
of the clerk and seal of the court annexed, If a seal exists,
together with a certificate of a judge of the court that the
said attestation is in proper form.
Such Acts, records and judicial proceedings or copies
thereof, so authenticated, shall have the same full faith and
credit in every court within the United States and its Terri-
tories and Possessions as they have by law or usage in the
, courts of such State, Territory or Possession from which
they are taken.
Opinion, Court of Appeals 19a
of the courts of the United States have invariably been
recognized as upon the same footing, so far as concerns
the obligation created by them, with domestic judgments
of the States, whenever rendered and whenever sought to
be enforced.” Id. at 10 (citations omitted). See also
Hancock National Bank v. Farnum, 176 U.S. 64 (1900) ;
Supreme Lodge, Knights of Pythias v. Meyer, 265 U.S. 30,
33 (1924). The precept has been most recently stated in
1938. In Stoll v. Gottlieb, 305 U.S. 165 (1938), the
Court states that the implementing statute
is broader than the authority granted by Article
Four, section one, of the Constitution to prescribe the
manner of proof and the effect of the judicial pro-
ceedings of states. Under it the judgments and de-
crees of the federal courts in a state are declared to
have the same dignity in the courts of that state as
those of its own courts in a like case and under similar
circumstances.
Id. at 170. We lecrn from Chief Justice Stone that the
purpose of full faith and credit is to “establish throughout
the federal system the salutary principle of the common
law that a litigation once pursued to judgment shall be as
conclusive of the rights of the parties in every other court
as in that where the judgment was rendered... .” Mag-
nolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).
Like the commerce clause, the full and credit clause ‘“‘be-
came a nationally unifying force.” Jd. Although Chief
Justice Stone was writing in a state-to-state context, the
principle is as powerful in state-federal relations. We
agree completely with Professor Degnan that “[wJere
there no such rule, it would be necessary to invent one—
so invent it the Supreme Court did.” Degnan, Federalized
20a Opinion, Court of Appeals
Res Judicata, 85 Yale L. J. at 749. The rule that governs
us today is succinctly stated by the Court in Stoll:
[W]here the judgment or decree of the federal
court determines a right under a federal statute, that
decision is “final until reversed in an appellate court,
or modified or set aside in the court of its rendition.”
305 U.S. at 170, quoting Deposit Bank v. Frankfort, 191
U.S. 499, 520 (1903) (emphasis supplied). ‘“‘Any other
conclusion strikes down the very foundation of the doc-
trine of res judicata, and permits the state court to deprive
a party of the benefit of its most important principle, and
is a virtual abandonment of the final power of the Federal
courts to protect all who come before them relying upon
rights . . . established by the judgments of the Federal
courts.”” Deposit Bank v. Frankfort, 191 U.S. at 520.
Obviously, the Pennsylvania Supreme Court did not
consider the doctrine of res judicata in rendering the Scan-
lon decision. Perhaps the parties did not brief the issue
there, as they have failed to do in this court. However,
Pennsylvania courts have long recognized the principle
that state courts are bound by the judgments of federal
courts. See London v. City of Philadelphia, 412 Pa. 496,
499, 194 A.2d 901, 902-03 (1963) (once federal court
validity acquired jurisdiction, its jurisdiction extended to
all matters ancillary to the main cause of action and it
would violate res judicata doctrine to permit relitigation
of state claim in state court); Bardo v. Commonwealth of
Pennsylvania, 40 Pa. Commw. 585, 587 n. 1, 397 A.2d
1305, 1307 n. 1 (1979) (“It is clear that a federal court
decision is res judicata in subsequent state proceedings.’’) .
Quite clearly. the Commonwealth could have litigated in
1978 in the federal court issues presented before the state
Opinion, Court of Appeals 21a
court in Scanlon. But they elected not to do so. Having
made that decision in 1978—for whatever reason—the
Commonwealth today is bound by the federal judgment
under res judicata, a doctrine recognized by the highest
courts in both the federal and the Pennsylvania court sys-
tems.
Therefore, the case devolves to this. Only the fed-
eral courts have the power to determine the authority of
federal court litigants, bringing suit under federal law, to
enter into consent decrees approved by a federal court.
The resolution of this dispute does not go to the substan-
tive merits of the controversy, but it goes directly to basic
jurisdictional powers of courts of separate sovereignties.
Accordingly, although the Pennsylvania Supreme Court’s
discussion of state statutes and especially its motor vehicle
code is impressive and erudite, jurisprudentially speaking,
it is irrelevant to the overarching question of the compe-
tency of a state court to interfere with a final, federal court
judgment bottomed on federal law.”
III.
We must now apply the foregoing precepts to review
the district court’s exercise of discretion. The Common-
5 We are not presented in this appeal with a case arising
solely from state substantive law. We only decide here the con-
clusive effect of a federal consent decree based on federal law.
We are impressed, however, with the compelling legal reasoning
embodied in a general rule proposed by Professor Degnan:
A valid judgment rendered in any judicial system with-
in the United States must be recognized by all other judicial
systems within the United States, and the claims and issues
precluded by that judgment, and the parties bound thereby,
are determined by the law of the system which rendered
the judgment.
Degnan, Federalized Res Judicata, 85 Yale L. J. at 773.
22a Opinion, Court of Appeals
wealth’s motion to vacate the consent decree was based on
Rule 60(b) (5) or, alternatively, Rule 60(b) (6). We
have held that Rule 60(b) ‘“‘provides for extraordinary re-
lief and may be invoked only upon a showing of excep-
tional circumstances.” Mayberry v. Maroney, 529 F.2d
332,335 (3d Cir. 1978). Under Rule 60(b) (5) the Com-
monwealth is required to demonstraie that it was entitled
to be relieved from the terms of the consent decree because
“it is no longer equitable that the judgment should have
prospective application”. Under this rule relief is per-
mitted for ‘any . . . reason [other than those enumerated
in the preceding sections of the rule] justifying relief from
operation of the judgment.” F. R. Civ. P. 60(b) (6).
We now consider whether equities were present in
such quantity so as to persuade us to determine that there
was an abuse of discretion. We have previously empha-
sized that in signing a consent decree, the signatories make
“a free, calculated and deliberate choice to submit to an
agreed upon decree rather than seek a more favorable liti-
gated judgment.” United States Steel Corp. v. Fraternal
Association of Steelhaulers, 601 F.2d 1269, 1274 (3d Cir.
1979). At oral argument counsel for the Commonwealth
was asked to state for the record who he represented in
these proceedings. We were informed that he represented
the executive branch of the state government, including the
Governor, the Secretary of PennDot and the Secretary of
the Department of Environmental Resources. He was
asked that if we were to grant the relief sought in this ap-
peal whether Pennsylvania was prepared to return over
one-half billion dollars of highway funds distributed by
the federal government in reliance upon Pennsylvania’s
compliance with the consent decree. We were informed
that there was no such intention. He was also asked that
Opinion, Court of Appeals, Concurring Opinion 23a
if Pennsylvania were successful, did the state authorities
intend to dismantle the emission inspection and mainte-
nance program now in effect in the Philadelphia and Pitts-
burgh areas. We were told that there was no such inten-
tion. Under these circumstances, in addition to the settled
law that a final federal court judgment based on federal
law cannot be collaterally attacked by a state court, we
find a profound lack of equities in the Commonwealth’s
position before the district court.
The judgment of the district court will be affirmed
in all respects.®
6 We are confident that the Commonwealth will encounter
no further interference with its respect of the federal court de-
cree. It searcely needs mention that in the event of a further
attempt, the Commonwealth parties may avail themselves of
remedies ‘‘to protect and effectuate [United States court] judg-
ments’’ permitted under 28 U.S.C. §2283.
STERN, District Judge, concurring:
I wholeheartedly join in the majority opinion. I
write only to emphasize what is, for me, the most important
basis for decision.
We are confronted with an order from the court of a
state enjoining compliance with the final orders of the
courts of the United States.
The state’s order is untenable not only «cause the
prior federal order was res adjudicata, which it was, but
because a state has no power to disturb any federal de-
cree. This conclusion flows necessarily from the constitu-
tional principles that structure ‘““Our Federalism,” and
most particularly from the supremacy clause.
24a Concurring Opinion, Court of Appeals
State courts are “destitute of all power” to interfere
with the proceedings or decisions of the national courts.
Central National Bank v. Stevens, 169 U.S. 432, 460-61
(1897) (exemption from interference by state judicial ac-
tion is ‘“‘essential’’ to the “independence and efficiency of
United States courts); see also Riggs v. Johnson, 73 U.S.
(6 Wall.) 166, 194-96 (1867) (‘the Constitution itself
becomes a mockery . . . if . . . the nation is deprived of
the means of enforcing its own laws by the instrumen-
talities of its owa tribunals”) ; McKim v. Voorhies, 11 U.S.
(7 Cranch) 279, 280 (the state court has no jurisdiction
to enjoin a judgment of the circuit court of the United
States). The Constitution’s full faith and credit clause is
neither the source of this principle nor the best basis for
today’s decision. The clause addresses only relations be-
tween states, declaring that one state must respect the
judicial proceedings of another state. U.S. Const. art. IV,
§1.
The ultimate source for binding state courts to fed-
eral decrees is the supremacy clause, part of article VI,
as it operates through article III. See 18 C. Wright, A.
Miller & E. Cooper, ’ »!eral Practice and Procedure §4468
(1981). Article i! gives to the Supreme Court and to
congressionally created “inferior courts” the “‘judicial
power” to decide certain “‘cases” and “controversies.”
U.S. Const. art. III, §§1, 2. Since 1792, finality of judg-
ments has been recognized as an essential attribute of this
federal judicial power to render decisions. See Hayburn’s
Case, 2 U.S. (2 Dail.) 408, 410, 413 (1792). The stat-
utes enacted to implement the jurisdiction of the Supreme
Court and of the lower federal courts, then, are statutes
that contemplate entry of final judgments by the federal
courts. By command of the supremacy clause, judges in
hie
Concurring Opinion, Court of Appeals 25a
every state are bound by these statutes, which in turn give
to the federal courts the power to render unassailable final
judgments.
In my view, the courts of the Commonwealth of Penn-
sylvania were without power to enjoin compliance even
with a federal court decree that was preliminary. Indeed,
it is for this reason that the federal courts, as a matter of
self-restraint, have developed the doctrine of comity so as
not to interfere with pending state proceedings. Younger
v. Harris, 401 U.S. 37 (1971); see Huffman v. Pursue,
Ltd., 420 U.S. 592, 604 (1974). Without that self-re-
straint, the courts of the nation could enjoin pending mat-
ters in the courts of the states—not merely as victors of
a race to judgment rewarded with res adjudicata, but as the
tribunals of a superior sovereign. If the state courts have
no power to interfere with pending federal cases, it fol-
lows that they have no power to disturb a federal judg-
ment that was final.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
26a Opinion, Supreme Court of Pa.
Eugene F. SCANLON, et al., Appellants
Vv.
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
[ Reported 502 Pa. 577, 467 A.2d 1108 (1983) ]
Supreme Court of Pennsylvania
Argued May 25, 1983
Decided Oct. 26, 1983
Reargument Denied Dec. 1, 1983
Certain members of General Assembly brought ac-
tion for declaratory judgment and injunctive relief seek-
ing to prevent the Department of Transportation from im-
plementing automobile emission inspection and mainte-
nance program to control air pollution in metropolitan
areas of state. On General Assembly members’ motions
for summary judgment, the Commonwealth Court, Nos.
1506 and 1762 C.D. 1981, John A. MacPhail, j., 66 Pa.
Cmwilth. 129, 443 A.2d 1197, denied motion. . The same
court thereafter entered decree finding that the Depart-
ment had authority to establish, implement, and maintain
program as called for by consent decree entered into in
Opinion, Supreme Court of Pa. 27a
connection with action commenced in United States Dis-
trict Court contemplating implementation of such pro-
gram. Members appealed. The Supreme Courts, Nos. 4
and 5 M.D. Appeal Dockets 1983, Larsen, J., held that:
(1) Department had no statutory authority to establish
and implement automobile emissions inspection atid main-
tenance program at time at which the Department entered
into consent decree in connection with actions commenced
in United States district court contemplating implementa-
tion of such a program, and purported agreement of the
Department to do so was void, and (2) subsequently en-
acted statute permitting establishment of such program as
necessary as to comply with valid decrees of United States
courts, so as to avoid cutoff of federal transportation funds,
could not validate retroactively the Department’s consent
to implement program.
Reversed and remanded.
Roberts, C.J., and Zappala, J., filed dissenting opin-
ions and would have granted the Commonwealth’s request
for reargument.
1. Health and Environment
Pennsylvania Department of Transportation had no
statutory authority to establish and implement automobile
emissions inspection and maintenance program at time at
which the Department entered into consent decree in ac-
tion commenced in the United States district court, which
decree contemplated implementation of such a program,
and purported agreement of the Department to do so was
void. 75 Pa. C.S.A. §§101 et seq., 4521, 4531, 4531
(a, b) , 4701, 4702, 4702 (a) , 6103.
pitied
28a Opinion, Supreme Court of Pa.
2. Health and Environment
Inasmuch as Pennsylvania Department of Transpor-
tation had no statutory authority to establish and imple-
ment automobile emissions inspection and maintenance
program at time at which the Department entered into con-
sent decree in actions in United States district court con-
templating implementation of such program, subsequently
enacted statute permitting establishment of such program
as necessary to comply with valid decrees of United States
courts, so as to avoid cutoff of federal transportation funds,
could not validate retroactively Department’s consent to
implement such a progrom. 75 Pa. C.S.A. §§101 et seq.,
4702, 4706(a, b), 6103; 71 P.S. §523 (Repealed).
Michael T. McCarthy, Harrisburg, for appellants
Scanlon, et al.
Allen C. Warshaw, Deputy Atty. Gen., for appellee
Com.
John Hrubovcak, Harrisburg, for appellee Penndot.
Joseph W. Marshall, III, Philadelphia, for appellants
Burd, et al.
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) ,
* This case was reassigned to writer on Sept. 20, 1983.
Opinion, Supreme Court of Pa. 29a
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 Clean Air.’ The action was brought to enforce
the inspection/maintenance auto emission regulation (40
CFR 52.2038), under the authority of the Clean Air Act,
as amended, 42 U.S.C. §7401 et seq. Later, on February
18, 1977, a second lawsuit was brought against the appel-
lees in the same court, by the United States of America,”
to compel the implementation, maintenance, and enforce-
ment of an inspection/maintenance auto emission program
in certain particular counties in Pennsylvania under au-
thority of Federal Law.’ Eventually, the two cases were
consolidated.*
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.” Under the terms and conditions of the con-
1 Delaware Valley Citizens Council for Clean Air, et al. v.
Commonwealth of Pennsylvania, et al., in the United States Dis-
trict Court for the Eastern District of Pennsylvania, Civil Ac-
tion No. 76-2068.
2United States of America v. Commonwealth of Pennsyl-
vania, et al., in the United States District Court for the Eastern
District of Pennsylvania, Civil Action No. 77-619.
3 Clean Air Act, as amended, 42 U.S.C. §7413(b).
4 Civil Action Nos. 76-2068 and 77-619, see notes 1 and 2.
5Mr. Justice Zappala’s dissenting opinion is factually in-
correct when it states that the Commonwealth of Pennsylvania _
is an active party in these proceedings. Although the Common-
wealth of Pennsyl’ania was an original named party, these pro-
ceedings are based upon the consent decree which was signed
only by the Pennsylvania Department of Transportation and the
Pennsylvania Department of Environmental Resources. Addi-
30a Opinion, Supreme Court of Pa.
sent 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 As-
sembly failed to provide legislation for a franchise system
and Penndot proceeded to arrange for implementation of
a private garage system as agreed. On December 22, 1979,
pursuant to the consent decree, appellee Penndot adopted
final regulations for an auto emission inspection program.°
On March 7, 1981, the consent decree was modified
to extend the time within which Penndot was to imple-
ment 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 ap-
pellees to have a fully operational program by May 1, 1982.
Penndot proceeded to carry out the provisions of the con-
sent decree which necessarily involved the expenditure of
state monies. Final equipment standards were adopted
and promulgated on October 10, 1981.’
tionally, this matter was submitted to the lower court by stipu-
lations of the parties and the only appellee parties who signed
the stipulations were the Pennsylvania Department of Transpor-
tation and the Pennsyivania Department of Environmental Re-
sources.
° 67 Pa. Code §177.1 et seq.
711 Pa. Bul. 3519 (1981).
Opinion, Supreme Court of Pa. 3la
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 depart-
ment or agency of the executive branch of state gov-
ernment shall expend any public funds for the estab-
lishment 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 imple-
ment 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 Common-
wealth Court.* Both suits allege that the appellee Penndot
was not empowered by any legislation to enter into a con-
sent decree committing the Commonwealth to the imple-
mentation of an auto emissions inspection/maintenance
program. The actions aver that, without authorizing legis-
lation, Penndot lacked the authority to: (1) establish and
implement an auto emissions inspection program; (2) en-
sure enforcement of such a system; and (3) establish any
subsidiary programs to a primary emissions program. In
each lawsuit the appellants asked, inter alia, for a declara-
tory judgment ruling that Penndot did not have the power
® Burd, et al. v. Commonwealth, et al., No. 1506 C.D. 1981.
Scanlon, et al. v. Commonwealth, et al., No. 1762 C.D. 1981.
32a Opinion, Supreme Court of Pa.
to establish, implement and maintain an inspection/main-
tenance auto emission program as contemplated by the con-
sent decree; and further that an injunction issue, enjoining
appeliees from performing the terms and conditions of the
consent decree without obtaining authorization from the
legislature.
After the two cases were consolidated for trial, the
Commonwealth Court entered a decree finding that the ap-
pellee 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.
[1] The appellants argue that appellees lacked the
authority to establish and implement an auto emissions in-
spection 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
Code® which Sections provide, in the order set forth, as
follows:
9 Act of 1976, June 17, P.L. 162, No. 81, §1, eff. July 1,
1977, 75 Pa. C.S.A. 4701; Act of 1976, June 17, P.L. 162, No. 81,
§1, eff. July 1, 1977, 75 Pa. C.S.A. 4702; Act of 1976, June 17,
P.L. 162, No. 81, §1, eff. July 1, 1977, 75 Pa. C.S.A. §4521; Act
of 1976, June 17, P.L. 162, No. 81, §1, eff. July 1, 1977, 75 Pa.
C.S.A. §4531; Act of 1976, June 17, P.L. 162, No. 81, §1, eff.
July 1, 1977; 75 Pa. C.S.A. $6103.
Opinion, Supreme Court of Pa. 33a
§4701. Duty to comply with inspection laws
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 es-
tablish a system of semiannual inspection of vehicles
registered in this Commonwealth.”
§4521. Promulgation of regulations by depart-
ment
The department shall promulgate regulations
governing the number, size, color, type, construction,
location and use of other equipment on vehicles con-
sistent with but not limited by the provisions of this
subchapter and taking into consideration different re-
quirements 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,
42 U.S.C. §1857) , or any amendments or supplements
thereto, sltia!! have emissions exceeding the maximum
permissible levels prescribed by law.
(b) Limitation on alteration of system.—No
person shall change or alter the emission control sys-
10Tn 1982, Section 4702 was amended to provide for annual
inspection of vehicles.
‘‘Except as provided in subsection (b), the department
shall establish a system of annual inspection of vehicles .. .’’
34a
Opinion, Supreme Court of Pa.
tem of a vehicle in such a manner that it fails to com-
ply with the prescribed emissions criteria. I: is un-
lawful for the vehicle to be operated under its own
power uniil a reinspection at an official inspection
station establishes its full compliance.
§6103. Promulgation of rules and regulations
by department
In addition to the specific powers granted to the
department by this title to promulgate rules and regu-
lations, the department shall have the power in ac-
cordance with the provisions of the act of July 31,
1968 (P.L. 769, No. 240), known as the “Common-
wealth Documents Law,” to promulgate, consistent
with and in furtherance of this title, rules and regu-
lations in accordance with which the department shall
carry out its responsibilities and duties under this
title.
None of the statutory provisions cited by the appellee Penn-
dot empower it to implement an auto emissions inspection/
maintenance program such as that which it agreed to im-
plement in the Federal Court consent decree.
In considering Section 4701, it is helpful to examine
its predecessor, Section 834 (75 P.S. §834) which pro-
vided:
“(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 consul-
tation with the Secretary of Environmental Resources,
had adopted inspection procedure and requirements
Opinion, Supreme Court of Pa. 35a
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 con-
trol systems and devices. The inspection of such de-
vices and systems shall commence on the first day of
inspection periods. . . . Such emission control systems
and devices shall be inspected once a year.” (Em-
phasis added)
The language of Section 834(a) set forth above is
not the original statutory language as adopted by the legis-
lature 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 demon-
strates a legislative intent, at that time, to grant Penndot
the authority to mandate auto emissions inspections, an
authority it did not previously have. The legislature ac-
complished this end by including in the statute such
phrases as: “including such emission control systems and
devices”; and “inspection procedure and requirements
which shall, to the extent possible and practical, be con-
sistent with the requirements of the ‘Clean Air Act’ ”’; 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.” Section 834 (a)
was repealed by the General Assembly in 1976 when a
comprehensive Motor Vehicle Code“ was adopted. Among
11 Vehicle Code, 1976, June 17, P.L. 162, No. 81, §1, eff. July
i, 1977, 75 Pa. C.S.A. 101 et seq.
36a Opinion, Supreme Court of Pa.
the provisions of the new code is Section 4701. Upon a
reading of Section 4701, it is readily apparent that all ref-
erences to emission control systems, emission control de-
vices, inspection procedures and requirements, and the
“Clean Air Act’ were eliminated. The deletion of emis-
sions systems language and “Clean Air Act’ references
evinces that the legislature intended to deny Penndot the
authority to require emission systems inspections. “Change
in the language of a statute ordinarily indicates a change
in legislative intent.”” Masland v. Bachman, 473 Pa. 280,
374 A.2d 517 (1977). From 1959 to 1972 Penndot did not
have authority to require auto emission systems inspections.
By virtue of the amended Section 834(a), from 1972 to
1977 Penndot was empowered to administer such an in-
spection system. After the repeal of Section 834(a) and
the adoption of Section 4701, Penndot was left without
authority to order a system of auto emissions inspection.
Section 4701 requires vehicle owners and drivers to sub-
mit their vehicles to any inspection and test authorized by
chapter 47 of the Motor Vehicle Code.’ We find that
nothing contained in chapter 47 authorizes Penndot to es-
tablish and implement an auto emissions inspection sys-
tem.
Section 4702((e) provides for a semi-annual vehicle
inspection system for all vehicles registered in Pennsylva-
nia. A program providing for annual auto emissions in-
spections of certain types of vehicles registered in a limited
number of counties in the Commonwealth is not within the
authority of Section 4702(a). Penndot does not have the
power to modify or alter the extent of authority it statu-
torily receives from the legislature.
12 Chapter 47, Inspection of Vehicles, 1976, June 17, P.L.
162, No. 81, §1, eff. July 1, 1977, 75 Pa. C.S.A. §§4701 to 4732.
Opinion, Supreme Court of Pa. 37a
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, 596
(1978).
Section 4521 provides Penndot with authority to regu-
late the type and kind of equipment which must be in-
cluded in various classes of vehicles. No authority to im-
plement 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 con-
tended 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.’"* Section 4531(b) prohibits any
alteration of the emissions control equipment which re-
duces its efficiency below the standard set by 4531 (a).
Neither 4531(a) nor 4531(b) vests Penndot with the au-
thority to implement an annual system of inspection and
testing of the required equipment. In addition Section
4531 applies to ali vehicles throughout the entire Common-
1377 Stat. 392, 42 U.S.C. §1857.
38a Opinion, Supreme Court of Pa.
wealth manufactured in compliance with the Clean Air Act.
It is not limited to certain types of vehicles registered in a
small number of counties, regardless of whether the ve-
hicles were manufactured in compliance with the Clean
Air Act.
Section 6103 merely grants Penndot the general au-
thority to promulgate rules and regulations in 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 or-
der. The desirability and merits of the system is not the
quesiion 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
[2] While this appeal was pending, the legislature
*wacted Act 3 of 1983"* which provides, in pertinent part,
as follows:
(a) General rule——Except as provided in sub-
section (b) neither the department nor any other de-
partment or agency of the executive branch of State
government shall expend any public funds for the
1475 Pa. C.S.A. §4706(b), as amended.
Opinion, Supreme Court of Pa. 39a
establishment and administration of any system for
the periodic inspection of emissions or emission sys-
tems 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 re-
ceive 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
cf 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; 71 P.S. §523 prohibiting expendi-
tures for any emission inspection program in the Common-
wealth.” Subsection (b) provides an exception to the
general prohibition mandated by subsection (a) and the
previous Act of Oct. 5, 1981. Subsection (b) grants Penn-
dot the authority to establish and administer an emissions
inspection program whenever “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.’"* The Act goes on to further
limit appellee’s authority by providing that if the Secretary
makes such a certification, then Penndot may implement
an inspection system only in areas of the Commonwealth
15 Section 6 of Act 3 of 1983 repeals the Act of Oct. 5, 1981
(71 P.S. §523).
16 Vehicle Code, 1976, June 17, P.L. 162, No. 81, §1, eff. July
1, 1977, 75 Pa. C.S.A. 101 et seq.
40a Opinion, Supreme Court of Pa.
where periodic emissions inspections are (1) ‘“‘required by
the Environmental Protection Agency of the United States,”’
or (2) required by ‘“‘Decrees of the Courts of the United
States.””"*
Penndot points to Act 3 of 1983 as evidence of its
authority to agree to the implementation of an auto emis-
sions 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 estab-
lished. We do not see Act 3 of 1983 as a limiting enact-
ment in the sense advanced by the appellees. Rather Act
3 of 1983 is a statuie, coerced by a Federal Court Order,'*
and delivered as ransom for the rescue of the citizens of
Pennsylvania from the considerable financial distress
17 Vehicle Code, 1976, June 17, P.L. 162, No. 81, §1, eff. July
1, 1977, 75 Pa. C.S.A. 101 et seq.
18 By order dated January 22, 1982, the U.S. District Court
for the Eastern District of Pennsylvania ordered, inter alia, as
follows :
‘The Secretary of the United States Department of
Transportation (‘‘Secretary’’), or his designee, shall not ap-
prove any projects or award any grants under Title 23 of
the United States Code in the Philadelphia or Pittsburgh
areas, as those areas am@ defined in §2(c)(VI) below, other
than for safety, mass transit, or transportation improvement
projects related to air quality improvement or maintenance.
See: 42 U.S.C. §7506(a).”’
‘‘The Philadelphia Areas shall consist of Philadelphia,
Bucks, Montgomery, Chester and Delaware Counties; the
Pittsburgh Area shall consist of Allegheny, Beaver, Butler,
Westmoreland and Washington Counties; See; Consent De-
eree §§3(f), 3(g).”’
Opinion, Supreme Court of Pa. 4la
caused by the withholding of million of dollars in tax-
payers’ funds ticketed for Pennsylvania highways. But
for the freezing of these critical funds and their threatened
permanent loss, it is fair to conclude that the ‘‘exception”’
provisions of Act 3 of 1983 would not have been even con-
ceived, let alone enacted into law.
Nothing contained in the provisions of Act 3 of 1983
gives the appellee blanket authority to establish an emis-
sions 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 imple-
ment 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 re-
fers to a valid decree based upon proper authority. Where
the decree is a consent decree, as in the case here, proper
authority includes the lawful ability and power of the par-
ties 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 conditions of the consent decree. Fur-
thermore, the legislature, by passing Act 3 of 1983, cannot
validate retroactively Penndot’s consent to implement an
emissions inspection program which, at the time of its con-
sent, was beyond its authority. See: Hartle v. Long, 5 Pa.
42a Opinion, Supreme Court of Pa.
491 (1846). The unrestrained power to validate actions
taken without authority tends to erode government by pre-
viously enacted laws and in its place substitute government
by men acting without authority, whose illegal acts may
subsequently be validated. The rights of society are better
protected when they can only be affected by previously
enacted laws. Our system of government rests upon the
will of the people and the authority granted thereby as ex-
pressed in previously enacted legislation, and not upon the
adoption of legislation to justify actions previously taken
without authority. When action comes first and legisla-
tive authority later, we have strayed from constitutional
government. See: Horton v. Kyle, 81 Fla. 274, 88 So. 757
(1921). |
Ill
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.
Dissenting Opinions, Supreme 43a
Court of Pa.
The decree of the Commonwealth Court is reversed
and the case remanded for proceedings consistent with this
opinion.
ROBERTS, C.jJ., 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 Transportaiion had
the requisite statutory authority to implement the inspec-
tion system required by the terms of the consent decree
into which appellees validly entered. See Burd v. Depart-
ment of Transportation, 66 Pa. Cmwlth. 129, 133-135, 443
A.2d 1197, 1199-1200 (1982). It is unnecessary to ad-
dress the effect of the initial version of 75 Pa. C.S. §4706
(71 P.S. §523), which prohibited the expenditure of pub-
lic funds “for the establishment and administration of any
system for the periodic inspection of emissions or emission
system of motor vehicles.”” Not only was that statute
enacted after the entry of the consent decree, but it has
since been amended to authorize appellee’s expenditure of
funds on an inspection system which is certified as being
required by federal law and necessary to the Common-
wealth’s receipt of federal funds, 75 Pa. C.S. §4706(b),
clearly the circumstance of this case. Accordingly, the or-
der of the Commonwealth Court, which denied appellants’
motions for summary judgment, should be affirmed.
44a Dissenting Opinions, Supreme
Court of Pa.
ZAPPALA, Justice, dissenting.
This is an appeal from an Order of the Common-
wealth Court denying Appellants’ petitions for declaratory
and injunctive relief. The Appellants in these consoli-
dated cases are members of the Pennsylvania General As-
sembly. They instituted these actions to challenge the au-
thority of the Appellee, Department of Transportation
(PennDOT), to establish and implement an automobile
emission inspection and maintenance (I/M) program.
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, 42
U.S.C. §7410(a) (2) (G). The suits were settled in Au-
gust of 1978 when the parties entered into a consent de-
cree.
According to the terms of this consent decree, Penn-
DOT was to seek legislative approval for a franchise sys-
tem of emission inspections or, in the event of failure to
obtain such approval, to implement a private garage inspec-
tion system under its own authority. When the General
Assembly failed to pass the franchise system legislation
proposed by PennDOT, the Department promulgated regu-
lations and standards for the private garage system, to take
Dissenting Opinions, Supreme 45a
Court of Pa.
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 ad-
ministration of any system for the periodic inspection of
emissions or emission system of motor vehicles.” 75 Pa.
C.S. §4706 (1981) (amended 1983). Having thus been
disabled from proceeding with the I/M program, Penn-
DOT sought a stay of the consent decree in the federal
actions. The stay was denied, and upon motion of the
plaintiffs the Commonwealth was found in contempt for
failure to proceed with implementation of the program.
Delaware Valley Citizens’ Council for Clean Air v. Com-
monwealth of Pennsylvania, 533 F. Supp. 869 (E.D. Pa.
1982) , aff'd, 678 F.2d 470 (3rd Cir. 1982); cert. denied,
US. , 103 S.Ct. 298, 74 L.Ed. 2d 280 (1982).
In these actions, the Appellants sought to establish
that PennDOT at all times lacked the authority to imple-
ment 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 in-
spection 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 in-
junctive relief as well.
Subsequent to the Commonwealth Court’s decision,
and the filing of this appeal, the General Assembly enacted
46a Dissenting Opinions, Supreme
L ourt of Pa.
Act 3 of 1983. While maintaining the prohibition on ex-
penditure of funds for emissions inspection programs as
the general rule of 75 Pa. C.S. §4706, Act 3 added as an
exception that such prohibition “‘shall not apply when the
secretary [of transportation] shall certify that such sys-
tem is required to comply with Federal law and is neces-
sary for the Commonwealth to receive or avoid the loss of
Federal funds,” and affirmatively provided that in such
a case ‘ .'s department may establish and administer such
a system for motor vehicles registered in areas where
periodic inspection of emissions systems of motor vehicles
is required by the Environmental Protection Agency of the
United States or decrees of the court of the United States.”
A Majority of this Court today holds that the Depart-
ment 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 imple-
ment 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, Pennsyl-
vania Department of Transportation (Penndot) , and Penn-
sylvania Department of Environmental Resources, et. [sic ]
al.” Slip opinion at 1. What is stated is true as far as it
goes. The Majority errs by what it does not state. Even
a cursory giance at the record of the federal court actions
maxes it clear that those cases involved, as separate defend-
ants, the Commonwealth of Pennsylvania; the Department
of Transportation and the Secretary of the Department;
and the Department of Environmental Resources and the
Dissenting Opinions, Supreme 47a
Court of Pa.
Secretary of that Department. The captions and innumer-
able references in the Opinions and Orders entered in the
course of that litigation indicate that the Commonwealth
was the primary defendant in those cases. In affirming
the District Court’s order holding the Commonwealth in
contempt, the Court of Appeals for the Third Circuit noted
that a motion to intervene filed by two groups of state
legislators had been denied, which denial had been af-
firmed with the holding that the interests of the legislators
were adequately represented by the Commonwealth de-
fendants. Delaware Valley Citizens Committee for Clean
Air, et al. v. Commonwealth of Pennsylvania, et al., 678
F.2d 470, 474 (3rd Cir. 1982) ; cert. denied, US. i
103 S.Ct. 298, 74 L.Ed. 2d 280 (1982). The Court also
noted that the ‘‘Pennsylvania Department of Justice, mem-
bers of which were signatories of this decree, has the ex-
clusive power to compromise and settle lawsuits against the
Commonwealth,” [see 71 P.S. §293 (Repealed 1980, Oct.
15, P.L. 950, No. 164, $503 imd. effective) ] and that
“the Attorney General, who heads the Department of Jus-
tice, has represented the Commonwealth in this litigation
from the time the complaint was filed, through the nego-
tiation and signing of the consent decree, and up to the
present.” 678 F.2d at 475. The Court further stated in
unmistakable language “that the Commonwealth itself was
and remains bound by the consent decree.” Id. The Ma-
jority conveniently ignores the fact that the federal courts
had before them as defendants not only the two' agencies
1The actions which are the subject of this appeal were
brought against both PennDOT and DER, but were discontinued
as to DER on August 28, 1981. The removal of DER as a de-
fendant in these actions does not, however, permit decision of the
48a Dissenting Opinions, Supreme
Court of Pa.
involved in the case at bar, but also the Commonwealth
itself.
The importance of this misstatement of fact becomes
immediately obvious in the next paragraph where the Ma-
jority 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 (Em-
phasis added). If, as the Majority implies, the party de-
fendant was simply PennDOT, then the question addressed
by the Majority, whether that agency had authority to es-
tablish an I/M system at the time it entered into the con-
sent decree, might indeed be the relevant question. If
however, as was found by the federal courts, the Com-
monwealth itself was the party defendant, then regard-
less of the intragovernmental processes necessary to com-
ply, 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. Environ-
mental 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 Common-
wealth itself, the processes of all branches of the Common-
wealth government were implicated.
———
actions by reference only to statutory enactments concerning
PennDOT. The legislative program for enforcemert of air pollu-
tion policy must be read as a whole, and ali statutes in that re-
gard must be read in pari material. See 1. Pa. CS. $1982.
5 esata dl
Dissenting Opinions, Supreme 49a
Court of Pa.
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 Fed-
eral Government and the states would cooperate to
reach the primary goal of the Act . . . Under its pro-
visions, state and local governments retain responsi-
bility for the basic design and implementation of air
pollution strategies, subject to approval and, if neces-
sary, enforcement by the Administrator. We believe
that this approach represents a valid adaption [sic]
of federalist principles to the need for increased fed-
eral involvement.
500 F.2d at 262 (emphasis added). See also, Delaware
Valley Citizens Council v. Commonwealth, 678 F.2d at
476. Asa matter of Federal law then, the Commonwealth
itself, through all its branches, must enforce the require-
ments of the Clean Air Act and Pennsylvania’s SIP. [It
must be noted that although the Commonwealth challenged
a particular requirement of the SIP in that case, the pert
of the plan requiring the Commonwealth “to establish an
inspection system for certain motor vehicles to ensure that
they do not emit carbon monoxide and hydrocarbons above
the level prescribed by EPA . . . [was] not challenged by
the petition for review.” Id. at 249.] It is against this
background that the present case must be examined.
50a Dissenting Opinions, Supreme
Court of Pa.
The Majority reviews the legislative history of various
sections of the Motor Vehicle Code, additions and dele-
itons, and concludes that “the deletion of emissions sys-
tems 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 i, ‘‘Safe-
ty 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 tak-
ing into consideration different requirements for dif-
ferent classes or types of vehicles. (Emphasis added.)
Section 4531(b) provides that
No person shall change or alter the emission con-
trol 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 inspec-
tion 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 au-
thority to set emissions criteria, require emission control
equipment, and require inspections to establish compli-
ance. Although the deleted language had made such au-
thority explicit by retaining the language of Sections 4521
Dissenting Opinions, Supreme 5la
Court of Pa.
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 emis-
sions equipment, to make unlawful the tampering with such
equipment and the operation of a vehicle until re-inspec-
tion 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 au-
thority must be recognized in PennDOT’s power to
“promulgate regulations . . . consistent with but not
limited by the provisions of this subchapter”. 75 Pa. C.S.
§4521. It is a basic rule of statutory construction -that
the legislature does not intend an absurd result. 1 Pa.
C.S.A. §1922(1). (Contrary to the assumption of the
Majority, the change in language does not necessarily in-
dicate a change in intent. The deletion of language is also
consistent with the view that because that authority de-
scribed by the deleted language was adequately spelled out
by other statutory language, the language was no longer
necessary. Such a view is particularly worthy of con-
sideration when the deletion and change in language occurs
as a result of the consolidation of statutes in a compre-
hensive Motor Vehicle Code.) We must, therefore, in-
terpret the Motor Vehicle Code as having established in
PennDOT the duty to promulgate the challenged regula-
tions.
This interpretation is further supported by reference
to 35 P.S. §4001 et seg., the Air Pollution Control Act,
1960, Jan. 8, P.L. (1959) 2119, as amended 1972, Oct.
26, P.L. 989, No. 245, §1. In that Act the Department
of Environmental Resources, a party defendant in the fed-
52a Dissenting Opinions, Supreme
Court of Pa.
eral litigation, is given the power to “[r]Jequire the owner
or operator of any air contamination source to sample the
emissions thereof in accordance with such methods and
procedures and at such locations and intervals of time as
the department may reasonably prescribe and to provide
the department with the results thereof.” 35 P.S. §4004
(2.3). Air contamination source is previously defined in
the Act as “[a]ny place, facility or equipment, stationary
or mobile, from .. . which there is emitted . . . any air con-
taminant.” 35 P.S. §4003(7). (Emphasis added). DER
is further given authority to ‘“[e]valuate motor vehicle
emission control programs with respect to their effect on
air pollution and determine the need for modifications of
such programs.” 35 P.S. §4004(10.1). Finally, the En-
vironmental Quality Board of DER has the power to
“[rJecommend to the Secretary of Transportation per-
formance or specification standards, or both, for emission
control systems and devices on motor vehicles.”’ 35 P.S.
§4005 (4). It would be anomolous indeed if the legisla-
ture granted DER authority to require the owners of cars
to submit them for emissions inspections, to evaluate emis-
sions control programs, and to recommend emission con-
trol systems standards to the Secretary of Transportation,
and yet, along with all the previously enumerated powers
of the Department of Transportation, withheld from that
department the authority to implement an emission con-
trol inspection/maintenance program.
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
Dissenting Opinions, Supreme 53a
Court of Pa.
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 in-
terests of the Commonwealth in those proceedings.
The Majority’s discussion of the effect of Act 3 of
1983, 75 Pa. C.S. §4706(b), as amended, compounds the
error previously noted. That Act provides that PennDOT
may establish and administer an I/M program where re-
quired by EPA of the federal courts ‘“‘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.” The Majority,
relying on its analysis that PennDOT did not have au-
thority to enter into the consent decree, declares that the
decree was not a valid decree based upon proper authority.
Because Act 3 contemplates such a decree as a pre-requisite
for the establishment of an I/M program, says the ma-
jority, the conditions of Act 3 have not been met and the
program is enjoined.
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 be-
cause the decree is invalid the program must be enjoined.
This conclusion ignores the alternate basis for implementa-
tion of an I/M program set out in Act 3, “when it is re-
quired 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 liti-
gation is required by federal law, by Pennsylvania’s SIP,
54a Dissenting Opinions, Supreme
Court of Pa.
and by EPA regulations, and that the federal court action
was only a means of enforcing those requirements. Penn-
DOT clearly has the authority to implement the challenged
program following the enactment of Act 3 of 1983. In-
deed, 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 Ap-
pellants. 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 the authority possessed
by PennDOT which is at issue.” Majority opinion at
1113), the Majority Opinion belies a clear intent to re-
write both federal and state environmental law according
to the conceptions of the Majority. In its zeal to fend off
the “coercion” of the federal court and redeem the “‘ran-
som” paid by the citizens of the Commonwealth for the
release of their captive tax dollars, the Majority adopts
only those facts of record which support its position and
discards those which implicate a different result. The
federal government through its several branches, and the
state government through its several branches, over the
years have established the applicable policies in regard to
air pollution, the means by which those policies are to be
implemented, and the authorities responsible for their im-
plementation and enforcement. The Commonwealth,
through enactments of several sessions of the General As-
sembly, has delegated the authority to bring the Common-
wealth into compliance with the requirements of federal
Dissenting Opinions, Supreme 55a
Court of Pa.
law to two agencies. To allow a select group of disen-
chanted legislators and former legislators to overturn duly
enacted legislation and regulations by resort to an action
such as the present one is to abandon constitutional gov-
ernment and the stability it promises in the face of con-
tinuous changes in personnel, and to substitute anarchy,
government changing with the whims and caprices of those
who happen to gain control for the moment. I cannot
subscribe to this total abandonment of our traditions of
governmental order.
I would dismiss the appeals as moot.
56a Denial of Reargument
SUPREME COURT OF PENNSYLVANIA
Middle District
434 Main Capitol Building
P. O. Box 624
Harrisburg, Pennsylvania 17108
(717) 787-6181
December 2, 1983
Allen C. Warshaw, Esquire
Office of the Attorney General
15th Floor—Strawberry Square
Harrisburg, Pa. 17120
Re: Scanlon, ect al., Burd, et al., Appellants v.
Commonwealth, Department of Transporta-
tion, et al.
Nos. 4 & 5 M.D. Appeal Dockets 1983
Dear Mr. Warshaw:
This is to advise that the following Order has been
entered on the Application for Reargument filed in the
above-captioned matter:
“December 1, 1983.
Application denied. s/ Per Curiam.
Mr. Chief Justice Roberts and Mr. Justice Zap-
pala dissent and would grant the Common-
wealth’s request for reargument.”’
Very truly yours,
(s) Mildred E. Williamson
Deputy Prothonotary
Order, Jan. 9, 1984, Commonwealth 57a
Court of Pa.
IN THE COMMONWEALTH COURT
OF
PENNSYLVANIA
No. 1506 C.D. 1981
JAMES M. BURD, et al.,
Petitioners
Vv.
COMMONWEALTH OF PENNSYLVANIA, DEPART-
MENT OF TRANSPORTATION, et al.,
Respondents
No. 1762 C.D. 1981
EUGENE F. SCANLON, et al.,
Petitioners
Vv.
COMMONWEALTH OF PENNSYLVANIA, DEPART-
MENT OF TRANSPORTATION, et al.,
Respondents
ORDER
NOW, January 9, 1984, the Supreme Court of Penn-
sylvania having stated that ‘“‘consistent with our holding
that PennDOT lacked the authority to consent to estab-
lish and implement an auto emissions inspection program,
an injunction should issue enjoining appellees from per-
forming the terms and conditions of the consent decree,”’
58a Order, Jan. 9, 1984, Commonwealth
Court of Pa.
Scanlon v. Commonwealth of Pennsylvania, Pa.
A.2d (Nos. 4 and 5 M.D. Appeal Dkt. 1983,
filed October 26, 1983), slip op. at 16, and the Supreme
Court having remanded the case to this Court for proceed-
ings consistent with its Opinion, it is found, declared and
ordered that:
(1) Respondents did not have the requisite au-
thority to enter into the Consent Decree, as well as its sub-
sequent modifications, signed and entered by the Federal
Court in Delaware Valley Citizens’ Council for Clean Air
v. Commonwealth of Pennsylvania, 533 F. Supp. 869
(E.D. Pa. 1982), aff'd, 678 F.2d 470 (3d Cir. 1982).
(2) Respondents do not have the requisite authority
to carry out the terms and conditions of the Consent De-
cree, as well as its subsequent modifications, signed and
entered by the Federal Court in Delaware Valley Citizens’
Council for Clean Air v. Commonwealth of Pennsylvania.
(3) Respondents’ agreement to enter into and carry
out the terms and conditions of the Consent Decree, as
well as its subsequent modifications, signed and entered
by the Federal Court in Delaware Valley Citizens’ Council
for Clean Air v. Commonwealth of Pennsylvania is void.
(4) From the date of this Order, Respondents shall
cease all activities associated with the carrying out of the
terms and conditions of the Consent Decree, as well as its
subsequent modifications, signed and entered by the Fed-
eral Court in Delaware Valley Citizens’ Council for Clean
Air v. Commonwealth of Pennsylvania.
(5) Respondents are permanently enjoined from
carrying out the terms and conditions of the Consent De-
Order, Jan. 9, 1984, Commonwealth 59a
Court of Pa.
cree, as well as its subsequent modifications, signed and
entered by the Federal Court in Delaware Valley Citizens’
Council for Clean Air v. Commonwealth of Pennsylvania.
(6) Nothing herein shall be construed to restrict or
in any manner affect prospectively respondents’ authority
granted under Section 4706 of the Vehicle Code, us
amended, 75 Pa. C.S. §4706.
(s) James Crumlish, Jr.
James Crumlish, Jr.
President Judge
Date: January 9, 1984
\
\
\
60a Consent Decree
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 76-2068 and No. 77-619
DELAWARE VALLEY CITIZENS’ COUNCIL FOR
CLEAN AIR, et al.,
Plaintiffs
VS.
COMMONWEALTH OF PENNSYLVANIA, et al.,
Defendants
UNITED STATES OF AMERICA,
Plaintiff
vs.
COMMONWEALTH OF PENNSYLVANIA, et al.,
Defendants
CONSENT DECREE
WHEREAS, the United States Environmental Pro-
tection Agency (hereinafter “EPA”) promulgated a trans-
portation control plan for the Metropolitan Philadelphia
and Southwest Pennsylvania Air Quality Control Regions
on November 28, 1973 for the purpose of attaining the
primary health-related ambient air quality standards for
photochemical oxidants and carbon monoxide in the two
regions;
Consent Decree 61a
WHEREAS, said transportation control plan included
the requirement that the Commonwealth of Pennsylvania
establish a mandatory inspection/maintenance program
for light-duty and medium-duty vehicles in the two regions,
40 CFR Section 52.2038;
WHEREAS, Plaintiff Delaware Valley Citizens’
Council for Clean Air, and other Plaintiffs, both organiza-
tional and individual, instituted Civil Action No. 76-2068
against the Commonwealth of Pennsylvania, the Secretary
of the Pennsylvania Department of Transportation (here-
inafter “PennDOT”) the Secretary of the Pennsylvania De-
partment of Environmental Resources (hereinafter “Penn-
DER”), the Administrator and Regional Administrator of
EPA to enforce the inspection/maintenance regulation,
under the authority of the Clean Air Act, as amended, 42
U.S.C. 7401, ef seg., on June 29, 1976;
WHEREAS, EPA issued Notices of Violation to the
Governor of Pennsylvania and the Secretary of PennDOT
on September 23, 1976, under the authority of Section
113(a) (1) of the Clean Air Act, as amended 42 US.C.
7413(a) (1), for their failure to implement the inspec-
tion/maintenance regulation;
WHEREAS, Plaintiff United States instituted Civil
Action No. 77-619 against the Commonwealth of Penn-
sylvania and certain of its departments and officers on
February 18, 1977 under the authority of Section 113(b)
of the Clean Air Act, as amended, 42 U.S.C. 7413 (b);
WHEREAS, pursuant to a Stipulation entered into
by the Plaintiffs in Civil Action No. 76-2068 and EPA
on February 16, 1977, EPA was dismissed as a Defend-
ant in that action upon the filing of Civil Action No. 77-
619;
62a Consent Decree
WHEREAS, extensive pre-trial motions and discovery
proceedings have taken place in these actions, including
oral argument of summary judgment motions by all par-
ties on July 21, 1977, several sets of written interroga-
tories, and oral depositions of 14 employees of the Com-
monwealth of Pennsylvania;
WHEREAS, the parties agree that the entry of this
Consent Decree is the most beneficial means to resolve
this litigation;
WHEREAS, this Consent Decree is entered without
the adjudication of any issues of fact or law.
NOW THEREFORE, before the taking of any testi-
mony upon the pleadings and upon the consent of the
parties by their respective attorneys and authorized offi-
cials, it is hereby ORDERED, ADJUDGED, and DE-
CREED:
1. This Court has jurisdiction of the subject mat-
ter of these actions and of the parties hereto.
2. The provisions of this Consent Decree apply to
the Defendants Commonwealth of Pennsylvania, Secre-
tary of PennDOT and the Secretary of PennDER, to all
Plaintiffs and to each of the officers, agents, employees
and successors of said parties.
3. The following definitions apply to this Consent
Decree:
A. Inspection—the testing of the exhaust emis-
sions of a vehicle by means of the insertion of a probe
of an emission analyzer or similar instrument into the
tailpipe of the vehicle while its engine is operating.
B. Maintenance—the repair or adjustment of
a vehicle in order to reduce the level of its exhaust
Consent Decree 63a
emissions below exhaust emission standards pre-
scribed by the Commonwealth.
C. Inspection/maintenance program—a_pro-
gram to reduce subject vehicle exhaust emissions by
annually identifying vehicles that require maintenance
and requiring that such maintenance be performed.
D. Private garage system—an inspection/main-
tenance program in which the Commonwealth certi-
fies a number of privately-owned facilities to perform
the inspection of vehicles.
E. Franchise system—an_ inspection/mainte-
nance program in which the Commonwealth enters
into a contract with a single person or entity to es-
tablish and operate the inspection aspects of the pro-
gram for a geographic area or areas under the gen-
eral administration of the Commonwealth and where-
by the Commonwealth may also certify fleet opera-
tors, and motor vehicle dealers, who own, lease or
operate at least 15 subject vehicles, to conduct inspec-
tions of subject vehicles owned, leased or operated
by them.
F. Philadelphia Area—Philadelphia, Bucks,
Montgomery, Chester and Delaware Counties.
G. Pittsburgh Area—Allegheny, Beaver, But-
ler, Westmoreland and Washington Counties.
H. Light-duty motor vehicle—a gasoline pow-
ered 4-wheel motor vehicle rated at 7,000 pounds
gross vehicle weight (GVW) or less which is com-
monly used on public roads or highways.
I. Medium-duty motor vehicle—a_ gasoline
powered motor vehicle rated at more than 7,000
Consent Decree
pounds GVW and no more than 11,000 pounds GVW
which is commonly used on public roads or highways.
J. Subject Vehicle—each light-duty or medium-
duty motor vehicle registered in the Philadelphia or
Pittsburgh area except an antique or classic vehicle
as presently defined in the Pennsylvania Vehicle
Code, or any other vehicle that the Commonwealth
determines is rarely used on the public roads or high-
ways.
K. Inspector—a person authorized by the Com-
monwealith to perform inspections on subject vehicles.
L. Inspection facility—a place of business au-
thorized by the Commonwealth to perform inspec-
tions on subject vehicles.
M. Exhaust emission standard—the level of
exhaust emissions, prescribed by the Commonwealth,
which separates subject vehicles requiring mainte-
nance frem those that do not.
N. Stringency Factor—a measure of the rigor
of an inspection/maintenance program based on the
estimated percentage of all subject vehicles whose
exhaust emissions would exceed the exhaust emission
standards for carbon monoxide and/or hydrocarbons
prior to the performance of maintenance.
O. Single Sticker System—a system in which
one inspection sticker is issued which does not, in any
way, distinguish between compliance with the inspec-
tion/maintenance program and the inspection pro-
gram presently in operation in the Commonwealth.
P. Double Sticker System—any system in
which the inspection program sticker or stickers is-
sued distinguish between compliance with the inspec-
Consent Decree 65a
tion/maintenance program and the inspection pro-
gram presently in operation in the Commonwealth.
4. Because the Commonwealth seeks to secure the
enactment by the Pennsylvania General Assembly of en-
abling legislation for a franchise system, PennDOT shall
have until July 1, 1979 to use its best efforts to obtain
such legislation. Defendant PennDOT shall further per-
form those other activities related to the establishment of
an inspection/maintenance program which are listed in
paragraphs 1 through 3 of the attached Schedule A and
paragraph 1 of the attached Schedule B, which are an-
nexed hereto and incorporated by reference into this Con-
sent Decree, by the dates provided therein. If such legis-
lation is not enacted by July 1, 1979, Defendant Penn-
DOT shall immediately proceed toward implementation
of a private garage system in accordance with paragraphs
2 through 8 of Schedule B pursuant to, inter alia, 75 P.S.
§4701 et seq. However, on or before July 1, 1979, the
parties may agree to extend this date to a date no later
than October 1, 1979. If such an extension is granted and
franchise legislation is not enacted within the extended
time period, the dates specified in paragraphs 2 through
6 of Schedule B shall be extended by the same time period
as such extension, and the dates specified in paragraphs
7 and 8 of Schedule B will be extended by three months.
5. If enabling legislation for a franchise system is
enacted within the time period (or any extension thereof)
specified in paragraph 4 above, Defendant PennDOT shall
immediately proceed toward implementation of a franchise
system in accordance with the schedule set forth in para-
graphs 4 through 10 of Schedule A. If such legislation is
enacted, Defendant PennDOT shall not be required to
66a Consent Decree
comply with any portion of Schedule B (except as pro-
vided in paragraph 4 above) .
6. The Executive Branch of the government of the
Commonwealth of Pennsylvania shall not reduce below
an operating level the funds for the inspection/mainte-
nance program because of any reductions in funds ap-
propriated to PennDOT.
7. Defendants shall establish exhaust emission stan-
dards for the inspection/maintenance program which shall
result in at least a twenty-five per cent (25%) reduction
in both hydrocarbon and carbon monoxide exhaust emis-
sions by December 31, 1987, compared to the level of
exhaust emissions that would exist on that date without
the program; provided, that in no case will a stringency
factor greater than twenty-five per cent (25%) be re-
quired if the inspection/maintenance program is imple-
mented in accordance with the time periods specified in
this Consent Decree. Should Defendants fail to establish
the mandatory inspection/mandatory maintenance phase
of the program on the dates specified in the applicable at-
tached compliance schedule, Plaintiffs may seek modifi-
cation of such stringency factor in order to achieve the
above-referenced twenty-five per cent (25%) exhaust
emissions reduction. In the event that the carbon mon-
oxide or the photochemical oxidant primary ambient air
quality standard is attained in the Philadelphia or the
Pittsburgh area, the required reduction in the related ex-
haust emissions may be reduced in such area to a level
which will at a minimum maintain such standard.
8. Defendant Commonwealth of Pennsylvania will
pay, within thirty days of the entry of this Decree, reason-
able counsel fees and costs to Plaintiffs’ counsel in Civil
Consent Decree 67a
Action No. 76-2068, the Public Interest Law Center of
Philadelphia, in the amount of $30,000.00, which is a
full, final and complete settlement of all counsel fees, costs
and any other expenses.
9. The United States and the Public Interest Law
Center of Philadelphia, counsel for Plaintiffs in Civil Ac-
tion No. 76-2068, will reach final agreement on the at-
torneys’ fees question within two weeks of the entry of
this decree.
10. In order to defray a portion of the start-up costs
of the inspection/maintenance program, EPA hereby
agrees to award a grant of $40,000.00 to PennDOT.
PennDOT agrees that it shall submit no later than ninety
days prior to the date upon which expenditures of funds
are to be made, a full and complete grant statement (on
a form to be supplied by EPA) which shall include, but
not be limited to, a work plan, budget, and a statement of
federal and non-federal funds to be used for the project.
EPA’s review of said grant statement shall be limited to
insuring its completeness, insuring that moneys listed are
to solely be used for inspection/maintenance start-up costs,
and insuring that the payment and expenditures of funds
will be made in accordance with all applicable Federal
laws and regulations. The parties agree that payment shall
be made in accordance with a payment schedule which
shall be included in the grant award document. Nothing
contained herein shal! preclude the Commonwealth from
requesting or being considered for additional funding for
inspection/maintenance efforts; provided, however, that
compliance with the terms of this Consent Decree shall
not be conditioned upon the award of any such future
funding.
68a Consent Decree
11. For the purpose of insuring compliance with
this Consent Decree, PennDOT shall submit reports to the
parties listed in paragraph 14 describing all actions (in-
cluding the status of franchise legislation) taken toward
compliance with this Decree, beginning with a report post-
marked no later than January 1, 1979 and continuing
every three months thereafter until the commencement of
mandatory inspection and voluntary maintenance, and a
report every six months thereafter until the end of the
first year of mandatory inspection and mandatory mainte-
nance. Commencing with a report postmarked no later
than ninety days following completion of the first year of
mandatory inspection and mandatory mainteiance and
continuing every year thereafter, Defendant PennDOT
shall submit reports for the previous year which include
at least the following:
(a) The number of subject vehicles inspected
in the inspection/maintenance program;
(b) The number of such subject vehicles whose
exhaust emissions initially exceeded the exhaust emis-
sion standards for carbon monoxide and/or hydro-
carbons, in total and by pollutant;
(c) The number of inspection stickers issued
to subject vehicles and the number of subject vehicles
registered.
12. The Commonwealth shall be allowed to institute
a waiver of maintenance program, based on the establish-
ment of maximum maintenance costs for certain subject
vehicles, pursuant to regulations to be enacted by the Com-
monwealth. The Commonwealth shall make available to
Plaintiffs evidence demonstrating the effect of such pro-
gram. However, Plaintiffs will have the right to challenge
any reasonable waiver provision.
Consent Decree 69a
13. Jurisdiction is retained by this Court for the
purpose of enabling any party to apply to the Court at any
time for such further orders and directions as may be
necessary or appropriate for carrying out of this Consent
Decree, for the modification or termination of any of the
provisions herein upon a showing of chatiged circum-
stances and good cause, or for the enforcement of com-
pliance therewith and the punishment of violations thereof.
14. All reports and other information that must be
submitted to Plaintiffs in satisfaction of a requirement of
this Consent Decree shall be sent to:
United States Environmental Protection Agency
Region III
6th and Walnut Streets
Philadelphia, Pennsylvania 19106
Attention: Director, Enforcement Division (3ENO0)
United States Environmental Protection Agency
401 M. Street, S.W.
Washington, D.C. 20460
Attention: Director, Mobile Source Enforcement
Division (EN-340)
United States Department of Justice
Land and National Resources Division
Washington, D.C. 20530
Attention: Chief, Pollution Control Section
Albert Slap, Esquire
Public Interest Law Center
1315 Walnut Street, 16th Floor
Philadelphia, Pennsylvania 19107
(Signatures appear on next page)
70a Consent Decree
We hereby agree to the entry of the foregoing Con-
sent Decree.
(s) Sanford Sagalkin
Sanford Sagalkin
Acting Assistant Attorney
General, Land and Natural Resources Division
(s) Peter F. Vaira
Peter F. Vaira
United States Attorney
Philadelphia, Pennsylvania
(s) Thomas A. Pursley, III
Thomas A. Pursley, III
Attorney for United States Department of Justice
(s) Robert S. Forster, Jr.
Robert S. Forster, Jr.
Assistant United States Attorney
Philadelphia, Pennsylvania
(s) Jack J. Schramm
Jack J. Schramm
Regional Administrator
United States Environmental
Protection Agency, Region III
(s) Albert J. Slap
Albert J. Slap
Public Interest Law Center of Philadelphia
Counsel for Plaintiffs in C.A. 76-2068
(s) John Hrubovcak
John Hrubovcak, Counsel for
Pennsylvania Department of Transportation
Consent Decree 71a
(s) Keith Welks
Keith Welks
Counsel for Pennsylvania,
Department of Environmental Resources
(s) B.R. Jackson
Benjamin R. Jackson
Acting Deputy Assistant
Administrator for Mobile Source
and Noise Enforcement, United States
Environmental Protection Agency
So ordered this 29th day of August, 1978.
(s) Louis C. Bechtle
Louis C. Bechtle, J.
SCHEDULE A
To the extent Schedule A is applicable by the terms
of this Consent Decree, Defendant PennDOT shall imple-
ment the following schedule for a franchise inspection/
maintenance program:
1. September 15, 1978. Submit to Plaintiffs a cur-
rent copy of the legislation which Defendants intend to
introduce in the Pennsylvania General Assembly.
2. October 1, 1978.
(A) Introduce legisiation in the Pennsylvania Gen-
eral Assembly and submit a copy of such legislation to
Plaintiffs.
(B) Commence development work on a Request for
Proposals to establish an inspection/maintenance program
in the Philadelphia and Pittsburgh areas.
72a Consent Decree
(C) Commence development of standards, proce-
dures, and regulations for the inspection/maintenanc
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