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PROFESSOR KENNETH CAMPBELL AND DR. PATRICIA SLOANE CAMPBELL v. COMMONWEALTH PENNSYLVANIA (01/12/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 12, 1979.

PROFESSOR KENNETH CAMPBELL AND DR. PATRICIA SLOANE CAMPBELL, HIS WIFE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND SWISTOCK, INC., RESPONDENTS

Appeal from the Order of the Environmental Hearing Board in case of Dr. Patricia Sloane Campbell and Kenneth Campbell v. Commonwealth of Pennsylvania, Department of Environmental Resources and Swistock, Inc., No. 75-276-C.

COUNSEL

Professor Kenneth Campbell and Dr. Patricia Sloane Campbell, petitioners, for themselves.

Louis A. Naugle, Assistant Attorney General, and Leslie B. Handler, with them Handler and Handler, for respondents.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 39 Pa. Commw. Page 625]

This petition for review of an adjudication by the Environmental Hearing Board (Board) dismissing petitioners' appeal from the grant of mine drainage permit No. 4275SM12 issued by the Department of Environmental Resources (DER) presents a narrow question concerning adequacy of notice. While the parties have argued and briefed what they consider to be the appropriate form of notice required by The Clean Streams Law, Act of June 22, 1937 (Act), P.L. 1987, as amended, 35 P.S. § 691.1 et seq. prior to issuance of a mine drainage permit, since we find under

[ 39 Pa. Commw. Page 626]

    the circumstances of this case that petitioners had adequate actual notice we will not reach the ultimate issue ably argued by the parties.*fn1

It is axiomatic that we will not disturb a judgment, order, or decree on appeal for harmless error. Paley v. Trautman, 317 Pa. 589, 177 A. 819 (1935); see generally, 2 P.L.E. Appeals §§ 461 et seq. (1957). In the present case the complained of error -- lack of statutorily required notice -- is not reflected in the record as having caused any injury to petitioners. The requirement of notice in a case such as this serves the purpose of affording persons situated like petitioners an opportunity to participate in the administrative process to protect their interests. A review of the pertinent facts regarding the participation of petitioners in that process clearly fails to indicate any harm.

Petitioners first learned of the possibility of strip mining on an area of land adjacent to their own in December, 1974, almost five months prior to the application by Swistock and George the predecessor in interest to Swistock, Inc. (both hereinafter simply Swistock). The record reveals nearly unintermitted participation by petitioners through discussions with officials of DER and representatives of Swistock. The permit in question was issued by DER on October 20,

[ 39 Pa. Commw. Page 6271975]

; petitioners timely filed formal appeal papers on November 17, 1975. Following four days of hearings in July and August of 1976, the Board entered its order dismissing the appeal on July 1, 1977.*fn2 We think the words of our Supreme Court in Richmond v. Otter, 364 Pa. 191, 195, 70 A.2d 314, 316 (1950) most appropriate in the situation now before us: "Harmful error is requisite to a reversal upon appellate review; and, the appellants have notably failed to point out any such error."

Petitioners argued, both in their brief and before the Court, that the failure to give newspaper notice deprived other property owners in the vicinity of an opportunity to join in the controversy. Whether there is merit to this contention or not such facts will not supply the showing of injury to petitioners necessary to sustain this appeal. Petitioners unquestionably lack standing to assert such error on this appeal; any harm resulting from the alleged error would accrue to persons not parties to this appeal.*fn3

[ 39 Pa. Commw. Page 628]

On the basis of the record before us*fn4 we believe the petitioners have failed to establish facts sufficient to sustain the present appeal.

Accordingly, we will enter the following

Order

And Now, January 12, 1979, the Order of the Environmental Hearing Board at No. 75-276-C dated July 1, 1977, dismissing the appeal of Kenneth and Partricia Sloane Campbell from the grant of mine drainage permit No. 4275SM12, is hereby affirmed.

Disposition

Affirmed.


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