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TOWNSHIP WILKINS v. COMMONWEALTH PENNSYLVANIA (01/31/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 31, 1979.

TOWNSHIP OF WILKINS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND TURNWAY CORPORATION, RESPONDENTS

Appeal from the Order of the Environmental Hearing Board in case of in the Matter of Township of Wilkins v. Commonwealth of Pennsylvania, Department of Environmental Resources and Turnway Corporation, Docket No. 76-167-W.

COUNSEL

John M. Means, with him Harvey I. Goldstein, and Markel, Levenson, Schafer & Means, for petitioner.

Richard S. Ehmann, Assistant Attorney General, for respondent.

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

Author: Macphail

[ 40 Pa. Commw. Page 220]

The Township of Wilkins (Township) has filed with this Court an appeal from an order*fn1 of the Environmental Hearing Board (Board) which sustained in part and denied in part the petition of the Department of Environmental Resources (DER) to quash the Township's appeal from the order of the DER. Although a clarification of the Board's order was requested by DER, that request was refused.

DER has filed preliminary objections to the Township's appeal which we will consider as an application to dismiss the appeal, pursuant to a previous order of President Judge Bowman entered September 9, 1977. Although both parties have briefed and argued the merits of the appeal, as well as the motion to dismiss, we will dispose of the case by sustaining the motion to dismiss.

While we understand the Township's dilemma in this matter, we are satisfied that the order of the Board is interlocutory. On remand, the Township should be afforded an evidentiary hearing regarding

[ 40 Pa. Commw. Page 221]

    all issues presented by the Township's appeal from the DER order including the issuance of the disputed Sewerage Permit No. 464S37 of 1964.

The general rule is that no appeal lies from an interlocutory order. In re: Petition of the Borough of West Mifflin, 34 Pa. Commonwealth Ct. 157, 383 A.2d 542 (1978). None of the recognized exceptions to the general rule apply to the case now before us. The Township admits, as it must, that at least two-thirds of the order is interlocutory. The only part of the order which even facially appears to be "final" is the first sentence. However, neither party is certain about the legal import of that sentence. Neither are we. In any event, it is clear to us that a further hearing has been ordered. Therefore, the Board's order is interlocutory.

We will quash the instant appeal.

Order

And Now, this 31st day of January, 1979, the appeal of the Township of Wilkins is quashed.

Disposition

Appeal quashed.


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