Commonwealth v. Marks Contracting, Ltd.

¶1OPINION BY

¶2We must decide whether field inspectors employed by the Department of Environmental Protection (DEP) are vested with the authority, “by law,” to issue citations for violations of what is colloquially known as the Blasting Act.1 The Court of Common Pleas of Schuylkill County held that field inspectors are not vested with such authority by law and, so, are not “law enforcement officers” as defined in Pa. R.Crim. P. 103, and, thus, cannot issue citations under Pa. R.Crim. P. 402. Consequently, it granted an omnibus pre-trial motion dismissing numerous citations issued by DEP field inspector Richard Parsons to Marks Contracting Limited (Marks) and blaster Ralph A. Mase. DEP now appeals to this Court.

¶3Marks is the prime contractor for the McAdoo Borough Sewer Project (Project), which is a construction project that involves installing a sanitary sewer collection system and pump station in the Borough of McAdoo. Mase is a licensed blaster serving on the Project. During the period from October 2002 through January 2003, Parsons, acting in his capacity as a DEP field inspector, filed numerous citations against both Mase and Marks, charging them with various summary offenses under the Blasting Act.2 Marks’ charges stemmed from its status as a blasting activity permittee and Mase’s charges from his status as “blaster-in-charge” of the Project.3 On June 23, 2003, Mase and Marks were convicted by a district justice of the offenses. Both filed de novo appeals to the common pleas court and it consolidated the matters for disposition.

¶4On appeal, DEP argues that its field inspectors are vested by law with enforcement powers under the Blasting Act and, therefore, are “law enforcement officers” as defined under Pa. R.Crim. P. 103.4 Consequently, it asserts that the inspectors, as “law enforcement officers,” are empowered to issue citations under Pa. R.Crim. P. 402.5 Mase and Marks, howev*875er, argue that the field inspectors are not law enforcement officers because the Blasting Act does not specifically authorize them to enforce that statute. Our review of this question of law is plenary. Sakach v. City of Pittsburgh, 687 A.2d 34 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 548 Pa. 676, 698 A.2d 597 (1997). We must, thus, determine whether DEP field inspectors are vested with enforcement powers, by law. If so, they are “law enforcement officers” under the criminal rules and can issue citations.

¶5To determine whether the field inspectors have enforcement power, conferred by statute, we must examine pertinent statutory authority. The first relevant statute is the Blasting Act itself, because it was for violations of this Act that the citations were issued. DEP did not always have enforcement authority for Blasting Act violations; in fact, when the Blasting Act became law on July 10, 1957, the Department of Labor and Industry (L & I) was charged with administering it.6 Then, in 1981, the General Assembly shifted this authority to the Department of Environment Resources,7 which has since been renamed DEP.8 The Blasting Act has not been amended since the 1981 transfer of powers and duties. It contains only five sections: a definition section,9 a section dealing with examination and licensing of blasters,10 a provision requiring that blasting operations be conducted in accordance with regulations,11 a provision authorizing L & I to promulgate rules and regulations to effectuate the act12 and a penalties section.13 The penalty section provides:

Any person violating any of the provisions of this act, or any of the rules or regulations of the Department of Labor and Industry made pursuant thereto, shall, upon conviction in a summary proceeding, be sentenced to pay a fine of not less than ten dollars ($ 10) nor more than one hundred dollars ($ 100), and upon failure to pay such fine and costs, shall undergo imprisonment for not more than thirty, days.

¶6*876Neither the penalty provision, nor any other provision in the Blasting Act, specifies who may initiate or prosecute criminal proceedings. Because there is no specific grant of enforcement authority in the Blasting Act, Marks and Mase argue that field inspectors have no authority.

¶7Although there is no specific grant of authority in the Blasting Act, our inquiry does not end there. We must also examine the enabling legislation which established the agencies involved here, ie., L & I, the Department of Environmental Resources (DER) and DEP, to determine whether enforcement powers are conferred therein. L & I was created by the Act of June 2, 1913, P.L., 396, as amended,14and, under Section 8, it was expressly vested with general enforcement duties over the laws within its purview. The Act provides that, “The Commissioner of Labor and Industry ... shall cause to be enforced ... the provisions of all ... existing laws and of this act_” Later, Section 1701 of what we shall refer to as The 1923 Administrative Code15 continued this authority in L & I, directing that it continue to “exercise the powers and perform the duties by law vested in and imposed upon” it. Thus, the authority granted to L & I in 1913 by its enabling legislation remained vested in it. While Section 3001 of The Administrative Code of 1929,16 did repeal numerous provisions in The 1923 Administrative Code, the 1929 Code also contained a provision retaining L & I’s prior grant of enforcement authority,17 although, like the earlier code, the 1929 Code did not, itself, contain a general grant of enforcement authority to either L & I18 or the then-named Department of Environmental Resources.19 Thus, the general enforcement powers, which were originally delegated to L & I in 1913, remained in effect in 1981, when its enforcement powers were transferred to the DER. In addition, and critical for our purposes, only thirty-four days after The Administrative Code of 1929 was enacted, Section 16 the Act of June 2, 191320 was amended. This amendment states in pertinent part:

It shall be the duty of the Department of Labor and Industry to enforce the provisions of this act, and the rules and regulations of the said department. Prosecutions for violations of the provisions of this act, or the rules and regulations of the said department, may be instituted by the Department of Labor and Industry.....

¶8(Emphasis added). Thus, to summarize, the status of the law prior to the 1981 reorganization was that L & I had general enforcement powers of those acts under its jurisdiction (including the Blasting Act), and it had the power to institute prosecutions stemming from violations of those acts. Further, in 1929, the legislature acted to make the authority to prosecute specific. That was the state of the law in *8771981 when the authority over the Blasting Act previously vested in L & I was transferred to the Department of Environmental Resources. Thus, included in the transfer were statutorily authorized enforcement powers.

¶9In addition to this general grant of enforcement powers, which were transferred to DER/DEP by statute, there has been a legislative trend to specifically grant enforcement authority to DEP. In legislation that pre-dates the early 1960’s, the legislature, as a general rule, used the passive voice when drafting enforcement and penalties provisions. As such, it did not specifically identify who could institute prosecutions or enforce the legislation. See, e.g., under the jurisdiction of L & I, what is colloquially known as the Stuffed Toy Manufacturing Act,21 and the Act of August 22, 1961, P.L. 1034 (requiring a guard to be posted when a manhole is entered);22 and, under the jurisdiction of DEP, the Pennsylvania Sewage Facilities Act,23 the Dam Safety and Encroachments Act,24 and the Surface Mining Conservation and Reclamation Act.25

¶10Now, however, the legislative trend is to specifically identify who can institute prosecutions. For example, the General Assembly has, at least twice since the 1986 amendment to the criminal rules that established the definition of “law enforcement officer,” incorporated that term into the legislation when granting authority to an agency to issue citations or enforce the acts within its jurisdiction. The two acts that now incorporate the criminal rule definition of “law enforcement officer” are under the jurisdiction of DEP, Section 9 of the Air Pollution Control Act,26 (“Employes of the department authorized to conduct inspections or investigations are hereby declared to be law enforcement officers authorized to issue or file citations for summary violations under this act”) (emphasis added) and Section 1306(a) of the Storage Tank and Spill Prevention Act,27 (“Employees of the department are hereby declared to be law enforcement officers for purposes of issuing citations for summary violations under this act.”). (Emphasis added.) This indicates a recent and clear legislative intent to vest DEP’s field inspectors with the power to issue citations.

¶11There are good reasons that support granting agency personnel enforcement authority. For example, the regulations implemented under the Blasting Act, indicate a growing need for technical specialization in order to establish the existence of violations. The regulations are highly technical and, in many cases, special equipment and expertise are necessary to determine whether a violation has occurred. In the matter sub judice, numerous citations were issued for blasts that “exceeded the maximum allowable peak particle velocity” at a location closest to a structure designated by the DEP as not owned or leased by the permittee. (Citation No. P4397757-0). A lay person cannot make an educated assessment as to whether such a violation *878occurred.28 Police departments cannot possibly buy, maintain and correctly learn to operate all of the specialized equipment available to field inspectors to assist them in assessing whether certain statutory or regulatory standards have been violated under the numerous acts in existence. Moreover, there is no compelling reason to require police to be called upon to issue a citation when the officer must depend upon the information provided by agency inspectors, which, as earlier noted, is often based on highly technical testing.

¶12The courts have also joined the trend by more broadly interpreting legislative grants of authority to include the issuance of citations by inspectors. This is in contrast to earlier case law from this Court that applied a more restrictive interpretation and required that the power to issue citations be expressly conferred.29 For example, last year, Judge Pellegrini recognized that the Superior Court and the Supreme Court had not embraced this Court’s approach, determining instead that the power to issue citations need not be expressly conferred, but can be inferred “where the person issuing the citation has the inherent power to do so by the nature of the position that person holds and the powers of that type of office.” Commonwealth v. Daugherty, 829 A.2d 1273, 1277 (Pa.Cmwlth.2003).

¶13In support of inferring such authority, Judge Pellegrini cited Commonwealth v. Joki, 330 Pa.Super. 406, 479 A.2d 616 (1984), decided before the criminal rule changes, in which the Superior Court held that a zoning officer had police powers and could institute summary criminal proceedings, and Commonwealth v. Lockridge, 570 Pa. 510, 810 A.2d 1191 (2002), in which the Supreme Court held that because a deputy sheriff had inherent common law power to make arrests, he could also issue summary citations under the Vehicle Code. Using this less stringent approach, Judge Pelle-grini concluded in Daughertythat a code enforcement officer employed by a borough could issue citations for violations of the building code. This is an example of the evolving recognition of more highly specialized law enforcement officials. This current approach provides additional support for interpreting the general legislative grant of enforcement authority of the Blasting Act to include issuing citations.

¶14To summarize, we conclude that field inspectors acting under the Blasting Act have the power and authority to issue citations under Criminal Rule 402 based upon the general enforcement powers conferred by statute, which conclusion is supported by and consistent with the change in the criminal rules to recognize the increasing role of agency inspectors who are not police officers, the trend of the legislature to grant authority to agency inspectors to issue citations, the more flexible standards evolving under the case law and the growing technical specialization required to determine if violations have occurred. We *879therefore reverse the order of the trial court and remand this case for trial.

¶15Judge SMITH-RIBNER concurs in the result only.

¶16ORDER

¶17NOW, May 28, 2004, the order of the Court of Common Pleas of Schuylkill County in the above-captioned matter is hereby reversed and this case is remanded for a trial.

¶18Jurisdiction relinquished.