Opinion by
This matter is before us on a petition for enforcement of an administrative order brought by Department of Environmental Resources (DER).
In June 1972, respondent, Wheeling-Pittsburgh Steel Corporatiоn, applied for a variance from minimum standards relating to particulate matter emissions into the atmosphere as established by DER regulations, 25 Pa. Code §§123.13, 123.41. The variance sought an extension until April 30, 1973, of the time for compliance with the standards set in the aforementioned regulations as applied to respondent’s sintering plant in Monessen, Westmoreland Cоunty.
As a result of the variance request, DER issued an order on September 25, 1972, granting respondent a variance from the required standards until April 30,1973. Respondent did not appeal this order.
On April 15, 1975, DER initiated enforcement proceedings in this Court pursuant to the Air Pollution Control Act, Act of January 8, 1960, P. L. (1959) 2119, as amended, 35 P. S. §4010, alleging that respondent had not complied with the order.
Respondent filed an answer containing new matter to the DER petition, which new matter raises several legal issues requiring resolution prior to evidentiary hearings on the merits of the petition. Those issues as frаmed by our Order of July 1, 1975, follow:
(a) May defendant (respondent herein) in this proceedings attack DER Regulations 123.13 and 123.41 as invalid and unenforceable;
(b) May defendant in this proceedings attack the DER order of September 25, 1972, as invalid and unenforceable ;
As to the issues of whether respondent can here attack DER Regulations 123.13 and 123.41 or its order of September 25, 1972, respondent has dealt with both issues in a single argument, and DER has used similar rationale and authority in supporting its position on these two questions. In view of the parties’ treatment of these two issues, we will dispose of them together.
Respondent has cited the case of Department of Environmental Resources v. Pennsylvania Power Company,
“A review of that procedure causes us to be very critical of the failure of PPC to contest the possibility of performance by way of an appeal from any of the DER ordеrs.... The failure to take the administrative procedural protections available to a citizen from an order of a regulatory agency is not to be condoned.” Deрartment of Environmental Resources v. Pennsylvania Power Company, supra,12 Pa. Commonwealth Ct. at 221 ,316 A.2d at 101 .
Respondent also stresses in its argument that it was not “aggrieved” by the order of September 25, 1972, because аt that time it did not believe compliance would present any difficulty; therefore, respondent contends that no reason for an appeal was then indicated.
Respondent further argues that since the Act employs the words “may appeal,” it is not mandatory to follow that procedure. We agree that an aggrieved party has no duty to appeal but disagree that upon failure to do so, the party so aggrieved preserves to some indefinite future time in some indefinite future proceedings the right to contest an unappealed order. To conclude otherwise, would postpone indefinitely the vitality of administrative orders and frustrate the orderly operations of administrative law. This principle was expressed in Philadelphia v. Sam Bobman Department Store Company,
“It is settled both under common law and statute that where an act creates a right or liability or imposes a duty and prescribes а particular remedy for its enforcement such remedy is exclusive and must be strictly pursued. This means that one who fails to exhaust his statutory remedies may not thereafter raise an issue whiсh could have and should have been raised in the proceeding afforded by his statutory remedy.
“... This is particularly true of special statutory appeals from the action of аdministrative bodies.” (Citations omitted.)
Similarly, in St. Joe Minerals Corporation v. Goddard,
In Standard Lime and Refractories Company v. Department of Environmental Resources,
Cases involving other administrative agenсies of this Commonwealth have long espoused this policy. Commonwealth v. Lentz,
We conclude that respondent in this proceedings has no right to attaсk the DER order in question nor the validity of the regulations upon which it was predicated.
The question of respondent’s right to trial by jury in this enforcement proceedings necessarily emanаtes from Article I, Section 6, of the Pennsylvania Constitution, which provides:
*286 “Trial by jury shall be as heretofore, and the right thereof remain inviolate.”
Our Supreme Court long has held that this language exists exclusively for the purpose of preserving jury trials as provided by common law.
In an administrative matter, the dismissal of a teacher, the Supreme Court refused a demand for a jury trial based on the proposition that no right to jury trial existed prior to the Constitution, so none existed when the relevant statute did nоt so provide. Watson Appeal,
In short, we hold, consistent with earlier Pennsylvania decisions, that the constitutional right to a jury trial does not extend to respondent in this proceedings, which are wholly a creature of recent statutory law.
Nor do we believe that respondent creates in its favor a right to a jury trial simply because it seeks declaratory relief in its answer to DER’s petition for enforcement. To allow a respondent to alter the essential nature of the proceedings and thereby obtain a jury trial is illogical and would create an anomalous situation detrimental to the orderly operation of administrative law.
“Where, however, a statute provides a special form of remedy for a specific type of case, thаt statutory remedy must be followed....”
The Act with which we are here concerned provides a clear specific form of remedy for those affected by DER orders or regulatiоns. See Friestad v. Travelers Indemnity Company,
Order
Now, Deсember 10, 1975, in further proceedings upon the Commonwealth’s petition for enforcement of its order of September 25,1972, respondent shall not have the right to introduce evidencе relevant to the issues of the validity of the order in question or the DER regulations upon which it was predicated; and respondent is denied a jury trial in this proceedings.
Notes
. Also see Erie Human Relations Commission v. Erie Insurance Exchange,
. Article IX, Section 6, of the Constitution of 1838 contained identical language.