DISSENTING OPINION BY
Judge PELLEGRINI.I respectfully dissent from the majority’s decision because this matter is not ripe for review and this Court lacks jurisdiction to hear its appeal. Bayada Nurses, Inc. (Bayada) has not yet suffered any harm, and if and when it does suffer any harm, it must first exhaust its administrative remedies with the Department of Labor and Industry (Department).
Bayada is a home health care provider. On September 27, 2005, the Department sent Bayada a letter stating that it would be conducting an audit on October 14, 2005, and requesting that Bayada “examine [its] payroll records for a period ex*1061tending back not less than two years with regard to compliance with [the Minimum Wage and Overtime Law]. Our investigators will assist in any questions you may have concerning specific areas of compliance. We ask that you compile any information in audit format, including specific pay periods, hours worked, and amount owed along with the name, address, telephone number and social security number of any employee potentially affected by the audit ready for review.” This was due to “possible discrepancies” in the manner Ba-yada paid overtime to its home health aides. From the date of that letter through March 22, 2007, Bayada and the Department sent letters back and forth with Bayada disputing the definition of “domestic services” found at 34 Pa.Code § 231.1 under Pennsylvania’s Minimum Wage Act (MWA)1 and requesting the Department not to proceed with the audit. After much discussion on the interpretation of the definition, the Department’s position was that Bayada was not entitled to the domestic services exemption under 43 Pa.Code § 333.105, and it would proceed with the audit. As of the date of the last letter from the Department to Bayada on March 22, 2007, it stated that the audit would proceed.
On October 3, 2007, Bayada filed a petition for review in the nature of a complaint for declaratory judgment in this Court’s original jurisdiction seeking a declaratory judgment invalidating the definition of “domestic services” found in the MWA, a declaration that Bayada’s clients were employers of the Home Health Aide that it employed,2 and a determination that the MWA domestic services exemption should be interpreted the same as the Federal Fair Labor Standards Act (FLSA) of 1938, 29 U.S.C. § 213(a)(15).3 It argued that it qualified for the domestic services exemption under the plain and unambiguous language in Section 5(a)(2) of the MWA and the definition of domestic services in 34 Pa.Code § 231.1(b). It also argued that the domestic services exemption in the MWA should be construed in pari materia with the FLSA to allow third party employers to claim the exemption for its employees pursuant to 29 C.F.R. § 552.109(a). Nowhere in the complaint *1062did Bayada allege that the audit had been completed and an assessment had been made by the Department.
In response, the Department has filed preliminary objections which are now before this Court arguing that Bayada’s petition is legally insufficient because the Department’s definition of domestic services was a proper exercise of its rule-making authority. It also argues that Bayada has failed to state a claim upon which relief may be granted. It did not contend that Bayada had failed to exhaust its administrative remedies.
After addressing both parties’ arguments, the majority agrees, concluding that “The regulation at 34 Pa.Code § 231.1(b) is reasonable and valid, it is consistent with Section 5(a)(2) of the MWA and neither Section 5(a)(2) nor 34 Pa.Code § 231.1(b) is preempted by the FLSA.” (Majority opinion at 16.) I respectfully disagree because the majority need not have addressed any of the arguments raised as the issues raised by Bayada are not ripe for review and this Court lacks jurisdiction to hear the matter. Bayada has not alleged in its complaint that the audit has taken place and that fees have been assessed; therefore, no injury has been suffered. “Courts are reluctant to grant a declaratory judgment and injunc-tive remedies against administrative agencies, unless the controversy is ripe for judicial resolution.” Pennsylvania Dental Hygienists’ Association, Inc. v. State Board of Dentistry, 672 A.2d 414, 416 (Pa. Cmwlth.1996).4
Even though not raised by the parties, the failure to utilize an available administrative remedy constitutes a jurisdictional defect, which may be raised at any point in the proceedings, either by the parties or by the court sua sponte. Lashe v. Northern York County School District, 52 Pa. Cmwlth. 541, 417 A.2d 260, 263 (1980) (holding that the parties cannot confer jurisdiction by their failure to raise an issue. “The distinction between power to hear an action and the form of action is significant because a court has the duty to raise the issue sua sponte where the former is involved, i.e., where a true jurisdictional issue is present. It is clear that parties may not confer jurisdiction over a cause of action or the subject matter of an action by consent or agreement.”) See also Cope v. Bethlehem Housing Authority, 501 A.2d 1178 (Pa.Cmwlth.1985); Brog v. Department of Public Welfare, 43 Pa.Cmwlth. 27, 401 A.2d 613 (1979).
As in most precepts, there are exceptions to the rule and the exception applicable here is one set forth in Arsenal Coal Company v. Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984) (a court of equity must refrain from exercising its jurisdiction when there exists an adequate statutory remedy.) Arsenal Coal involved whether equity was available to hear a pre-enforcement challenge to certain regulations of the Department of Environmental Resources even though there was a “post enforcement” remedy available. While it cautioned that normally the administrative process must be followed,5 Arsenal held that a pre-en-*1063forcement challenge brought in equity is allowable where the regulation causes actual, present harm. Whether that harm is present is determined by whether “the effect of the challenged regulations upon the industry is direct and immediate, the hardship thus presented suffices to establish the justiciability of the challenge in advance of enforcement.” 505 Pa. at 209, 477 A.2d at 1339. In finding that the remedy was not adequate, it focused on the “lengthy process” by which the validity of the regulations would be addressed which would result in “ongoing uncertainty in the day to day business operations of an industry which the General Assembly clearly intended to protect from unnecessary upheaval.” Id. at 210, 477 A.2d at 1340. In Concerned Citizens of Chestnut-hill Township, 158 Pa.Cmwlth. 248, 632 A.2d 1, 3 (1993), this Court summarized the Supreme Court’s position in Arsenal Coal as follows: “In other words, unless the regulation itself is self-executing, there is no harm done to the litigant until the [Department of Environmental Resources] takes some action to apply and enforce its regulations, in which case the normal post-enforcement review process is deemed an adequate remedy.”
In this case, Bayada is contending that 34 Pa.Code § 231.1 defining “domestic services” as “work in or about a private dwelling for an employer in his capacity as a householder, as distinguished from work in or about a private dwelling for such employer in the employer’s pursuit of a trade, occupation, profession, enterprise or vocation” is inconsistent with the MWA defini-turn which provides that employment is exempt from the overtime provisions if it involves “[d]omestic services in or about the private home of the employer.” 43 P.S. § 333.105.(a)(2). It contends that as a result, it will have to pay more to its employees and correspondingly charge more to private individuals who use the services for home health care if the Department’s regulation is enforced, and that there will be uncertainty in the whole health care industry as a result because the Department regulation is causing uncertainty to the home health care industry as it is also at variance with how similar FLSA provisions are administered.
While Bayada’s argument would certainly fall within the exception if the Department had recently promulgated this regulation, the regulation was adopted in 1977. A regulation existing for that long cannot cause “ongoing uncertainty in the day to day business operations of an industry” when it has been existing for over 31 years.
Because Bayada has failed to exhaust its administrative remedies, I would dismiss its petition for review. Accordingly, I dissent.
Judges COHN JUBELIRER and LEAVITT join this dissenting opinion.. Act of January 17, 1968, P.L. 11, as amended. 43 P.S. § 333.105.(a)(2) provides:
(a) Employment in the following classifications shall be exempt from both the minimum wage and overtime provisions of this act:
(2) Domestic services in or about the private home of the employer.
The regulation found at 34 Pa.Code § 231.1 defines “domestic services” as "work in or about a private dwelling for an employer in his capacity as a householder, as distinguished from work in or about a private dwelling for such employer in the employer’s pursuit of a trade, occupation, profession, enterprise or vocation.”
. The MWA defined "Employer” to include "any individual, partnership, association, corporation, business trust, or any person or group of persons acting, directly or indirectly, in the interest of an employer in relation to any employe.” Section 3(g) of the MWA, 43 P.S. § 333.103(g).
.Section 213(a)(l 5) of the FLSA provides:
(a) Minimum wage and maximum hour requirements.
The provisions of section 206 [relating to minimum wage] (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 [relating to maximum hours] of this title shall not apply with respect to—
(15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).
. In Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 18 L.Ed.2d 681, the United States Supreme Court explained the rationale behind the ripeness doctrine stating:
"[It] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”
. “It is fundamental that prior to resorting to judicial remedies, litigants must exhaust all the adequate and available administrative *1063remedies." County of Berks, ex rel. Baldwin v. Pennsylvania Labor Relations Board, 544 Pa. 541, 678 A.2d 355 (1996). "Even where a constitutional question is presented, it remains the rule that a litigant must ordinarily follow statutorily-prescribed remedies.” Muir v. Alexander, 858 A.2d 653, 660 (Pa. Cmwlth.2004). "The additional element required to confer equitable jurisdiction is either the absence of a statutorily-prescribed remedy or, if such a remedy exists, then a showing of its inadequacy in the circumstances.” Id. (quoting Borough of Green Tree v. Board of Property Assessments, Appeals and Review of Allegheny County, 459 Pa. 268, 328 A.2d 819, 823 (1974)).