Indeed, "[a]dministrative agencies are not empowered to make rules and regulations which are violative of or exceed the powers given them by the statutes and the law, but must keep within the bounds of their statutory authority in the promulgation of general rules and orders." Pennsylvania Association of Life Underwriters v. Department of Insurance , 29 Pa.Cmwlth. 459, 371 A.2d 564, 566 (1977), aff'd , 482 Pa. 330, 393 A.2d 1131 (1978). "An agency cannot confer authority upon itself by regulation.
Nevertheless, even where a statute does not explicitly provide an agency with rule-making powers, if the agency is directed to operate under the statute, the agency may also create rules concerning its administration of the statute based on its interpretation of the statute. Borough of Pottstown, 712 A.2d at 743; Uniontown Area Sch., 313 A.2d at 168-69; see also Pennsylvania Assoc. of Life Underwriters v. Commonwealth Dep't of Ins., 371 A.2d 564, 565 (Pa.Commw. 1977) (interpretative rules commonly arise as a result of the tasks assigned to the agency). Where an administrative agency is specifically authorized to adopt rules under a statute, the rules adopted by an agency are binding upon a reviewing court as part of the statute as long as they are "(a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable."
More recent cases invoking the power of equity have arisen within the original jurisdiction of the Commonwealth Court. See, e.g., Hospital Association v. Bachman, 40 Pa. Commw. 262, 397 A.2d 65 (1979), affirmed sub nom, Hospital Association of Pennsylvania v. MacLeod, 487 Pa. 516, 410 A.2d 731 (1980); Pennsylvania Association of Life Underwriters v. Comm., Department of Insurance, 29 Pa. Commw. 459, 371 A.2d 564 (1977) affirmed 482 Pa. 330, 393 A.2d 1131 (1978). Thus, the propriety of invoking the original equitable jurisdiction of the Commonwealth Court in a case seeking preenforcement review of a substantial challenge to the validity of regulations promulgated by an administrative agency is clear.
Decided October 5, 1978. Reargument Denied November 8, 1978. Appeal No. 82 May Term, 1977, from the Decree of the Commonwealth Court at No. 176 C.D. 1976, Equity, 29 Pa. Commw. 459, 371 A.2d 564. Thomas R. Balaban, Shaffer, Calkins Balaban, Harrisburg, for appellant.
"Administrative agencies are not empowered to make rules and regulations which are violative of or exceed the powers given them by the statutes and the law, but must keep within the bounds of their statutory authority in the promulgation of general rules and orders." Pennsylvania Association of Life Underwriters v. Department of Insurance, 371 A.2d 564, 566 (Pa. Cmwlth. 1977), affirmed, 393 A.2d 1131 (Pa. 1978). "An agency cannot confer authority upon itself by regulation. Any power exercised by an agency must be conferred by the legislature in express terms.
42 Pa. C.S. § 7541(a). In Pennsylvania Association of Life Underwriters v. Department of Insurance, 29 Pa. Commw. 459, 371 A.2d 564 (1977), aff'd 482 Pa. 330, 393 A.2d 1131 (1978), this Court also assumed original jurisdiction to determine whether the Pennsylvania Insurance Commissioner had authority under the Insurance Unfair Practices Act, Act of June 5, 1947, P.L. 445, to promulgate certain regulations. Because the Association's claim is premised on a constitutional violation and because that claim alleges both that the substance of the order violates the legislated regulatory scheme and that the Governor was without either constitutional or statutory authority to issue an order effectively altering that scheme, we must find that an action for declaratory judgment is the appropriate procedure by which to resolve the instant matter.
This Court has held that a legislative regulation promulgated under an express or implied grant of power is valid if written within that power, if issued pursuant to proper procedure and if reasonable. Pennsylvania Association of Life Underwriters v. Commonwealth, 29 Pa. Commw. 459, 371 A.2d 564 (1977), aff'd, 482 Pa. 330, 393 A.2d 1131 (1978). Moreover, regulations promulgated pursuant to statutory authority will not be disturbed in the absence of fraud, bad faith or abuse of power.
Clearly, the fact that DER did promulgate the challenged regulation under the PBL in this case indicates that it believed it had the power to do so. See also Pennsylvania Ass'n of Life Underwriters v. Department of Insurance, 29 Pa. Commw. 459, 371 A.2d 564 (1977), aff'd, 482 Pa. 330, 393 A.2d 1131 (1978), where we took original jurisdiction of a case to determine whether the Pennsylvania Insurance Commissioner had authority under The Insurance Unfair Practices Act, Act of June 5, 1947, P.L. 445, formerly, 40 P. S. § 1151-1162, repealed by Section 15 of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, as amended, 40 P. S. § 1171.15, to promulgate certain regulations. We turn now to Respondents' demurrer.
While it is true that the Act does not grant the Commissioner or the Insurance Department any specific power to promulgate regulations, we have recognized that there is an implied power in a public administrative agency to make or adopt regulations with respect to matters within the province of such agency, provided such regulations are not inconsistent with law. Pennsylvania Association of Life Underwriters v. Department of Insurance, 29 Pa. Commw. 459, 371 A.2d 564 (1977), aff'd per curiam, 482 Pa. 330, 393 A.2d 1131 (1978). The contested regulation, 31 Pa. Code § 63.2(a), provides as follows:
We perceive no way in which this structure restricts Act 101's conferring of eligibility or its beneficent purpose. Where interpretative regulations track the statute they seek to interpret, they are valid. Pennsylvania Association of Life Underwriters v. Department of Insurance, 29 Pa. Commw. 459, 463, 371 A.2d 564, 566 (1977) aff'd per curiam, 482 Pa. 330, 393 A.2d 1131 (1978). We thus decline to adopt the Township's position that the regulations should be held invalid.