82 Pa. Commw. 452 | Pa. Commw. Ct. | 1984
Opinion by
Boyle Land and Fuel Co. (Petitioner) commenced this action in our original jurisdiction seeking both equitable and declaratory judgment relief. Petitioner’s applications for summary relief and for a preliminary injunction have been denied. We now have before us for disposition Petitioner’s motion for sum
On July 22, 1983, DER assessed a $27,000 civil penalty against Petitioner for five violations of various provisions of the SMCRA and ClSL. Petitioner was advised in the notice of assessment that it had the right to appeal the assessment to the EHB but would be obligated to follow the appeal provisions of the SMCRA and GSL, including the deposit or surety bond.
After this Court on September 29, 1983, denied Petitioner’s motion for summary relief and petition for preliminary injunction, Petitioner filed with the DEE a $27,000 surety bond in order to perfect its appeal with the EHB.
Of course, the requirement of bonds to secure the amount of anticipated delayed damages and costs pending the final disposition of an appeal are not uñ
Petitioner contends that the bond requirement violates the mandatory right of appeal created by Article V, Section 9 in our present Constitution which provides that:
There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.
The issue of whether a statutory bond requirement can serve as a jurisdictional prerequisite to an appeal in an administrative proceeding in light of an Article V, Section 9 claim has yet to be decided by an appellate court.
In the instant case, the bond requirement is likewise a reasonable condition on Petitioner’s right to appeal the assessment. While we are well satisfied that the architects of our new Constitution wanted to be very certain that every litigant had the right to an appeal to a court of record at some stage of his litigation, we do not believe that it necessarily follows that the legislature was thereby bound to permit all such appeals without reasonable restrictions which would assure that the courts were not burdened with frivolous appeals and that the public interest in certain appeals would be preserved. The objective of the SMCBA and the CSL is to promote the public interest by protecting our environment. The assessment of civil penalties is one way of achieving that objective. It is in the public interest that DEB’s efforts in enforcing the law should not be frustrated by appeals which, although constitutionally permitted, may be taken solely for the purpose of delay while the violations continue. The bond requirement ensures the underlying validity of appeals and serves to protect the public interest in a safe and clean environment.
We are also satisfied that DEB’s regulations have provided Petitioner with due process of law. Pursuant to 25 Pa. Code 86.201(b), DEB “may upon its own motion, or shall upon written request of the person to whom the assessment was issued, arrange for a conference to review the assessment.” The obvious purpose of this provision is to prevent an arbitrary or capricious action by DEB. We are mindful that there are few significant differences between the review procedures of the SMCBA and CSL and the fed
Petitioner also contends that the bond requirement violates its unconditional right to administrative and judicial review, pursuant to Sections 504, 701 and 702 of the AAL. This contention is erroneous. The sections of the AAL which Petitioner cites pertain to a right to appeal from an adjudication by a Commonwealth agency. The Commonwealth agency at issue, the EHB, has yet to adjudicate this matter, therefore there is no final decision to appeal. Furthermore, Section 1921-A of the Administrative Code
A party challenging the constitutionality of a statutory provision has a heavy burden to overcome the presumption of its constitutionality. In re: Nomination Certificate of Street, 67 Pa. Commonwealth Ct. 441, 447 A.2d 1052 (1982). We conclude that Petitioner has not met that burden.
Order
It is ordered that Respondents’ motion for summary judgment is granted and Petitioner’s motion for summary judgment is denied.
Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. §1396.22.
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §691.605.
Section 18.4 of the SMCRA, 52 P.S. §1396.22 states in pertinent part:
Tbe person or municipality charged with the penalty shall then have thirty (30) days to pay the proposed penalty in full or, if the person or municipality wishes to contest either the amount of the penalty or the fact of the violation, forward the proposed amount to the secretary for placement in an escrow account with the State Treasurer or any Pennsylvania bank, or post an appeal bond in the amount of the proposed penalty, such bond shall be executed by a surety licensed to do business in the Commonwealth and be satisfactory to the department.
Section 605(b) (1) of the CSL, 35 P.S. §691.605(b) (1) states in pertinent part:
The person or municipality charged with the violation shall then have thirty days to pay the proposed penalty in full,*455 ar if the person or municipality wishes to contest either the amount or the fact of the violation, to forward the proposed amount to the department for placement in an escrow account with the State Treasurer or any Pennsylvania bank, or post an appeal bond in the amount of the proposed penalti-, such bond shall be executed by a surety licensed to do business in the Commonwealth and be satisfactory to the department, and thereafter to file an appeal to the Environmental Hearing Board within the same thirty day period.
2 Pa. C. S. §504.
2 Pa. C. S. §§701 and 702.
Petitioner and DER previously stipulated .that Petitioner had the financial capacity to post the semirity to perfect its appeal from BER’s civil penalty.
In Commonwealth v. N. Barsky & Sons, 476 Pa. 13, 381 A.2d 842 (1978), the Supreme Count held that a bond requirement of the Fiscal Code was not an explicit condition of the right to appeal a sales and use tax assessment. While an Article V, Section 9 claim was raised, the Count declined to address this issue.
30 U.S.C. §§1201-1328 (1976 & Supp. V 1981). Specifically, under Section 525(a)(1), 30 U.S.C. §1275(a)(l), an operator can challenge a violation to an administrative law judge without prepayment.
B&M Coal Corp. v. Office of Surface Mining Reclamation and Enforcement, 699 F.2d 381 (7th Cir. 1983) ; John Walters Coal Co. v. Watt, 553 F. Supp. 838 (E.D. Ky. 1982).
Act of April 9, 1929, P.L. 177, as amended, added by Section 20 of the Act of December 3, 1970, P.D. 834, 71 P.S. §510-21.
See Commonwealth v. Coward, 489 Pa. 327, 332, 414 A.2d 91, 94 (1980).
Pa. R.C.P. No. 1035; see Concerned Citizens of Greater West Chester v. Larson, 48 Pa. Commonwealth Ct. 241, 244, 409 A.2d 511, 513 (1980).