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BETHLEHEM MINES CORPORATION v. COMMONWEALTH PENNSYLVANIA (04/22/74)

decided: April 22, 1974.

BETHLEHEM MINES CORPORATION, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE



Appeal from the Order of the Environmental Hearing Board in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Bethlehem Mines Corporation, No. 72-170.

COUNSEL

Henry McC. Ingram, with him Lawrence A. Demase, Philip C. Wolf and Rose, Schmidt and Dixon, for appellant.

Marvin A. Fein, Special Assistant Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Kramer.

Author: Wilkinson

[ 13 Pa. Commw. Page 215]

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*fn1 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.

[ 13 Pa. Commw. Page 216]

Although this Court has not had to decide what actions by the Environmental Hearing Board*fn2 constitute final, appealable orders and what actions constitute interlocutory, non-appealable 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, 7 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

[ 13 Pa. Commw. Page 217]

    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 non-appealable, 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 ...


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