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MICHAEL PAWK v. COMMONWEALTH PENNSYLVANIA (12/29/78)

decided: December 29, 1978.

MICHAEL PAWK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board in case of Michael Pawk v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 74-052-D.

COUNSEL

Leo M. Stepanian, with him John J. Vierthaler, for petitioner.

Elissa Parker, Assistant Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 39 Pa. Commw. Page 458]

This is an appeal by Michael Pawk (Appellant) from an adjudication and order of the Environmental Hearing Board (EHB) affirming the order of the

[ 39 Pa. Commw. Page 459]

Department of Environmental Resources (DER) directing Appellant to remove a culvert and roadfill that he had constructed in West Butler Creek, to dredge the creek and grade and vegetate its slopes.

Underlying the appeal are the following facts. On February 15, 1974, DER issued an order pursuant to Section 5 of the Water Obstructions Act, Act of June 25, 1913, P.L. 555, as amended, 32 P.S. § 685; Section 1917-A of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by the Act of December 3, 1970, P.L. 834, as amended, 71 P.S. § 510-17; and Section 5 of a permit previously issued to Appellant. The Water and Power Resources Board (Board) of the Department of Forests and Waters (predecessor to DER) had authorized the construction of the culvert by permit in 1968 which DER has now ordered removed. The 1974 order is based on evidence that the culvert and landfill constructed by Appellant have caused flooding of neighboring properties and homes, constitutes a dangerous obstruction which will cause future flooding, and is a nuisance which affects the public health.

Appellant frames five issues for our review:

1. Does the Environmental Hearing Board lack jurisdiction because an administrative agency initially elected to pursue its remedy in the Court of Common Pleas and is thereafter precluded from proceeding by the issuance of an administrative order?

2. Is an order of an administrative agency which attempts to amend a prior order of a Court of Common Pleas valid and enforceable?

3. Does the summary denial ex parte without hearing or the taking of testimony of a petition to take testimony on the basis of ...


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