Appeal from the Order of the Environmental Hearing Board in case of Commonwealth of Pennsylvania, Department of Environmental Resources, v. John Bednar, et ux. and E. Bryce Wolford, et ux., No. 73-351-W.
Eugene B. Dice, Assistant Attorney General, for appellant.
James W. Evans, for appellees, Wolford.
James D. Campbell, Jr., and Nauman, Smith, Shissler & Hall, for appellees, Bednar.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Concurring Opinion by Judge Kramer.
[ 16 Pa. Commw. Page 256]
We deal here with motions to quash an appeal from a January 25, 1974 adjudication and order of the Environmental Hearing Board (Board) and from a May 20, 1974 order of the Board denying a petition for reargument and to reopen evidence, on the ground that the appeal was not filed within the statutory period.
On January 25, 1974, the Board entered an adjudication reversing an order of the Department of Environmental Resources (appellant) and finding in favor of John and Louise Bednar and E. Bryce and Geraldine S. Wolford (appellees). Instead of filing an appeal from this adjudication, appellant filed a "Petition for Reargument and to Reopen Evidence" (petition) with the Board on February 5, 1974. On February 14, 1974, the Board entered an order denying appellant's petition. However, notice of this order was not served on appellant until May 17, 1974. The Board then, in an effort to rectify its mistake in failing to serve appellant promptly, issued a new order denying appellant's petition. This order was filed and mailed to appellant on May 20, 1974 and was intended by the Board to supersede the order of February 14, 1974. On June 18, 1974, appellant filed its appeal from both the Board's adjudication of January 25, 1974 and its order of May 20, 1974 denying appellant's petition. Appellees then filed the motions to quash the appeal which are the subject of this opinion.
It is not disputed by appellant that its appeal from the Board's adjudication of January 25, 1974 was not filed until June 18, 1974, some 144 days later. It is appellant's contention that this constituted a timely filing of its appeal because the appeal period did not start to run until after the Board's order denying its petition was filed and mailed on May 20, 1974.
[ 16 Pa. Commw. Page 257]
Appellant's argument is based on Section 41 of the Administrative Agency Law*fn1 which reads in pertinent part as follows: "Within thirty days after the service of an adjudication (or if a petition for rehearing or reconsideration is filed pursuant to statutory authority, then within thirty days after service of the order of the agency refusing such petition, or of the order following rehearing or reconsideration) any person aggrieved thereby who has a direct interest in such adjudication shall have the right to appeal therefrom. Such appeal shall be taken to the court of common pleas of Dauphin County." (Emphasis added.)
Appellant contends that its appeal of June 18, 1974 was timely under the above section since it was filed within thirty days of the Board's amended order dated May 20, 1974 refusing its petition.*fn2
Section 41 of the Administrative Agency Law was repealed in two respects by the Appellate Court Jurisdiction Act of 1970 (ACJA).*fn3 Section 508(a)(71) of the ACJA, 17 P.S. § 211.508(a)(71), provides that the jurisdiction of the court named in Section 41 is transferred to and vested in the Commonwealth Court. Section 502 of the ACJA, 17 P.S. § 211.502, provides that an appeal from any order shall be filed within thirty days of its entry rather than within thirty days after the ...