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JOSEPH ROSTOSKY v. COMMONWEALTH PENNSYLVANIA (10/05/76)

decided: October 5, 1976.

JOSEPH ROSTOSKY, TRADING AS JOSEPH ROSTOSKY COAL COMPANY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Joseph Rostosky, t/a Joseph Rostosky Coal Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 75-257-C.

COUNSEL

Clyde G. Tempest, for appellant.

Howard J. Wein, Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 26 Pa. Commw. Page 479]

The question presented here is whether an appeal was properly quashed by the Environmental Hearing Board (Board). The appellant's counsel admits that the period for appeals to the Board expired after he filed erroneously with the appellee Department of Environmental Resources (DER). He claims, however, that he was misled by an outdated copy of procedural regulations sent him by the DER. We hold the quashing proper.

On July 21, 1975, a hearing before the DER found that the appellant had violated a condition of his surface mine permit. Notice of this decision was sent to appellant on August 4, 1975, by the director of

[ 26 Pa. Commw. Page 480]

DER's Bureau of Surface Mine Reclamation. The notification stated that the appellant had the right to appeal to the Board within thirty days of receipt.*fn1

Within the notification of August 4 were two enclosures for the use of appellant. The significance of the enclosures is that appellant's counsel claims that they wrongfully confused him as to the proper place to file his appeal. One enclosure was a copy of Chapter 21 of the Rules and Regulations of the DER, governing practice and procedure before the Board. The copy enclosed, however, was outdated, having been superseded by revisions published in the Pennsylvania Bulletin in December 1974.*fn2 The only revision relevant here is that the former regulations contained no address for the filing of appeals from DER rulings, while the new regulations include the Board's address for that purpose.

The other enclosure was a notice of appeal, which clearly indicated that it was to be sent to the Board. Near the end of the notice appeared the address of DER's Bureau of Administrative Enforcement (Bureau) with instructions that the Bureau was to be served with a copy of the appeal. Immediately below the Bureau's address was a different address and the typed or printed notation "Address correction eff: 2/8/75."

Appellant's counsel sent the original of the appeal to the Bureau, not to the Board, at the address noted on the correction.*fn3 The Bureau received it on September 5, ...


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