Bethlehem Mines Corp. v. Commonwealth

318 A.2d 373, 13 Pa. Commw. 213, 1974 Pa. Commw. LEXIS 921

• Court: Commonwealth Court of Pennsylvania
• Decided: April 22, 1974
• Docket: Appeal, No. 835 C.D. 1973
• Status: Published

Opinions

Opinion by

Judge Wilkinson,

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 later¹ on May 7, 1973, the Board “granted in part” the request and agreed to reconsider its original adjudication following reargument before the Board, en banc. On July 13, 1973, Bethlehem Mines Corporation, appellant, filed a petition for a writ of prohibition in this Court which was dismissed on December 28, 1973. 11 Pa. Commonwealth Ct. 375, 313 A. 2d 790 (1973). While the prayer for the Writ of Prohibition was pending, appellant filed this appeal from the grant of the request for reargument to which appellees have filed a motion to quash.

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.

Although this Court has not had to decide what actions by the Environmental Hearing Board² constitute final, appealable orders and what actions constitute interlocutory, nonappealable orders, we have decided that the granting of a rehearing by the Workmen’s Compensation Appeal Board is an interlocutory order, Besco v. General Woodcraft & Foundry, 1 Pa. Commonwealth Ct. 32, 298 A. 2d 60 (1972). Although exceptions exist to this general rule, “an order of the [Workmen’s Compensation Appeal] Board remanding a case to a referee for taking additional testimony is interlocutory.” Royal Pioneer Ind., Inc. v. Workmen’s Compensation Appeal Board, 11 Pa. Commonwealth Ct. 132, 133, 309 A. 2d 831, 832 (1973).

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 of any or all of the parties to the proceeding in which the adjudication is made. . . .” The Board’s order was not a final order or decree which determined the issues between the parties, and, therefore, must be considered an interlocutory order.

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.

1 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.

2 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.