Townships Say PA Prematurely Appealing Act 13 Challenge to Supreme Court

  • Katie Colaneri

The final, 174-page draft of Act 13 also known as the "impact fee law."

Scott Detrow / StateImpact Pennsylvania

The final, 174-page draft of Act 13, also known as the "impact fee law."

The group of Pennsylvania townships challenging the Act 13 local preemption has filed their response to the state’s petition to have the case reargued to include a new Supreme Court justice.
In the answer filed by the group’s attorneys, the municipalities call it a “premature” appeal that “opens up a ‘Pandora’s Box’ for all matters pending before the Court to be reargued despite no new facts or law being present before a decision is rendered.”
Last week, the Public Utility Commission and the state Department of Environmental Protection argued that because the case involves “serious matters of broad Commonwealth importance,”  Justice Correale Stevens should be included in the final decision.

Justice Stevens was sworn in to replace Justice Joan Orie Melvin who was suspended from her duties when six justices heard oral arguments in the case in October 2012. Melvin was eventually convicted of political corruption last spring.
At issue is the part of Act 13 that allows the state to have control over local zoning rules that could limit drilling. The Commonwealth Court struck down that provision in favor of municipalities.
Deron Gabriel is President of the Board of Commissioners of South Fayette. The Allegheny County township is one of the municipalities involved in the litigation. He believes the PUC and the DEP are politicizing the legal process.
“They had windows of time to ask for a reconsideration and they never did,” said Gabriel. “They asked for this case to be expedited back when Justice Melvin was suspended.”
Stevens, who was nominated by Governor Tom Corbett to fill Melvin’s seat, is a Republican and now tilts the bench to a 4-3 GOP majority.
The Supreme Court has said it is unlikely Stevens will participate because the justices rarely allow cases to be reargued.
However, Duquesne University law professor Bruce Ledewitz believes the high court will grant the state’s request if they believe they might have a deadlock with the six justices who heard the case. Otherwise, the parties would end up back in court down the road.
“You need a majority of the state Supreme Court to have a precedentive or authoritative decision on the constitutionality of Act 13 or any other important legal decision and there’s going to be a final decision that is a majority decision,” Ledewitz said.
It is not clear how or when the high court will make its decision. Supreme Court spokeswoman Amy Kelchner told StateImpact that there is no set internal procedure.
“Every petition that comes in is reviewed, assigned to one justice and as a group, they vote to take it,” Kelchner said. “But now this case is ongoing.”