Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Scranton Army Ammunition Plant and Chamberlain Manufacturing Corporation, Order of July 31, 1973.
James W. Walker, Assistant U.S. Attorney, with him S. John Cottone, U.S. Attorney, for appellants.
No appearance for appellee.
Barbara H. Brandon, Assistant Attorney General, with her Marvin A. Fein, Chief Counsel, for intervening appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Kramer.
[ 13 Pa. Commw. Page 340]
Appellants, Daniel E. Duggan, Commanding Officer, Scranton Army Ammunition Plant, and Chamberlain Manufacturing Corporation, filed an appeal in this Court from an adjudication of the Environmental Hearing Board (EHB) assessing against them, jointly and severally, civil penalties in an amount of $1,667,000.00. The Department of Environmental Resources was allowed to intervene as a party appellee, whereupon it filed a motion to quash the above appeal as untimely taken. Upon being advised of proceedings initiated in
[ 13 Pa. Commw. Page 341]
the Federal Courts,*fn1 we ordered the motion to quash to be argued prior to argument on the merits and stayed all further proceedings in this Court pending disposition of certain motions then pending in the Federal action. To our knowledge these motions remain outstanding in the Federal action at this time.
The only issue before us at this time is intervening appellee's motion to quash. On July 31, 1973, the EHB issued the adjudication in question and so entered it on its docket from which adjudication the instant appeal was filed in this Court on September 5, 1973.
The Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. § 1710.41,*fn2 provides that appeals from administrative agencies must be taken within "thirty days after service of the adjudication." The appellants assert that service of the adjudication was made by mail and was received on August 6, 1973. Accordingly, they contend, under the provisions of the Administrative Agency Law, their appeal, filed on September 5, 1973, was timely filed.
Section 502 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.502 (Supp. 1973-1974), (ACJA), however, contains a provision that is inconsistent with the Administrative Agency Law. The ACJA provides that an appeal shall be filed within "thirty days of ...