13 Pa. Commw. 213 | Pa. Commw. Ct. | 1974
Lead Opinion
Opinion by
The facts in this case are not in dispute. On March 21, 1972, the Department of Environmental Resources (DER) filed a complaint with the Environmental Hearing Board alleging that Bethlehem Mines Corporation had “willfully” permitted a discharge of coal fines from a settling pond into a nearby creek, thereby polluting the creek and violating provisions of The Clean Streams Law, Act of June 22, 1937, P. L. 1987, as amended, 35 P.S. §691.1 et seq. After an evidentiary hearing, the Board, on April 18, 1973, with an opinion containing extensive findings, conclusions, and discussion, and with a concurring opinion, dismissed DER’s complaint. Upon a DER “petition for oral argument and/or rehearing and/or reconsideration,” filed 19 days later
The sole issue involved here is whether this appeal should be quashed as an appeal from an interlocutory order. The Board’s order of May 29, 1973, granting the DER petition for reargument, was not a final order in the matter before the Board. The order, therefore, was interlocutory and this appeal must be quashed.
The basis for deciding that the granting of a remand is an interlocutory order is, as Judge Blatt noted in Royal Pioneer Ind., Inc., supra, at 134, 309 A. 2d at 832, that “the Board has not yet reached a final decision and a reviewing court should hesitate to act before the administrative process has been completed.” This reasoning applies equally to the granting of reargument. The Board’s order did nothing more than allow the parties to present their arguments before the Board en banc. The order was not an “adjudication” within the meaning of the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.1 et seq. Section 2 of the Administrative Agency Law, 71 P.S. §1710.2, states, in pertinent part: “(a) ‘Adjudication’ means any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities or obligations
In deciding that the present appeal is from a nonappealable, interlocutory order, we expressly do not decide whether the Environmental Hearing Board has the power and authority to grant reargument. Appellant may, of course, raise this issue later, i.e., after the entry of the final order. As appellees noted in their brief: “All the Environmental Hearing Board granted to the appellee herein was a reargument. A final order would have been entered only after [re] argument and appellant could then have appealed from that order, if necessary, and argued that the Environmental Hearing Board erred in granting an oral [re] argument to the parties.”
Accordingly, we enter the following
Obdeb
Now, April 22, 1974, appellee’s motion to quash is hereby granted and the record is remanded to the Environmental Hearing Board.
In addition to arguing on the merits that the Board does not have authority to grant a reargument, appellant presents the point that, assuming the right to grant reargument, the Board's own rules require it be granted within 10 days.
In Sunbeam Coal Corporation v. Department of Environmental Resources, 8 Pa. Commonwealth Ct. 622, 304 A. 2d 169 (1973), notices of violations given to coal operators by the Department of Environmental Resources were not considered “adjudications” or “actions” engendering review by administrative boards or courts of record.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. The basic premise on which the principle of due process of law is based is fairness. Fairness requires that the parties to a controversy under our adversary system know at what point in the proceeding the case is decided. Fairness requires that there be some point in the process of determining rights, duties and responsibilities when both the citizens and the governmental agencies understand that the issues have been resolved with some finality. It seems to this writer that the very purpose of the many rules and regulations promulgated either by the Legislature
Today tbe majority bas permitted tbe Environmental Hearing Board (Board) to grant a reconsideration long after tbe time limit (as set by a Board regulation) within wbicb reargument may be granted.
Tbe majority specifically states that it is not deciding whether tbe Board bas tbe power and authority to grant reargument. This writer recognizes that tbe
The majority cites Royal Pioneer Ind., Inc. v. Workmen’s Compensation Appeal Board, 11 Pa. Commonwealth Ct. 132, 134, 309 A. 2d 831, 832 (1973), for the proposition that “a reviewing court should hesitate to act before the administrative process has been completed.” I agree with that position; however, I believe that in this case the administrative process was completed when the Board issued its adjudication on April 18, 1973. The permitted reopening of this case by the Board, from my point of view, was an error of law, especially without a showing in the record of a compelling and persuasive reason. Having come to the conclusion that the Board’s adjudication was final, it makes no sense to this writer to put Bethlehem through all of the time and expense of what could be a long proceeding, the result of which is to give DER the benefit of hindsight, and to permit it to bolster its position a second time merely because the original result was unfavorable. Insofar as procedural rules are concerned, DER is in no different position than any citizen before
In summary, I would determine that the adjudication of the Board was a final order, and that in reopening the case, the Board committed an error of law. Therefore, I would deny the motion to quash. ,
See Regulations of the Environmental Hearing Board, Title 25, Rules and Regulations, Part I, Sub-part A, Article III, Chapter 21, Section 21.32(g), 2 Pa. B. 932, which reads as follows: “The Board may at any time on its own notion [sic], or upon application of counsel, within ten (10) days after a decision has been rendered, grant reargument before the Board en bane. Such action will be taken only for compelling and persuasive reasons.”
See Administrative Code of 1929, April 9, P. L. 177, Art. XIX-A, §1921-A, Added 1970, December 3, P. L. 834, §20, 71 P.S. §510-21.