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SOUTHWEST PENNSYLVANIA NATURAL RESOURCES v. COMMONWEALTH PENNSYLVANIA (09/12/83)

decided: September 12, 1983.

SOUTHWEST PENNSYLVANIA NATURAL RESOURCES, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Commonwealth of Pennsylvania, Department of Environmental Resources in case of Southwest Pennsylvania Natural Resources, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 81-001-H.

COUNSEL

Thomas W. Hills, with him Robert O. Lampl and Edward A. Olds, for petitioner.

Diana J. Stares, Assistant Counsel, for respondent.

Judges Craig, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 77 Pa. Commw. Page 115]

On March 11, 1982, the Environmental Hearing Board (Board) issued an adjudication regarding the forfeiture by the Department of Environmental Resources (DER) of a surety bond which guaranteed reclamation of a 44.1 acre surface mining site operated by Southwest Pennsylvania Natural Resources, Inc. (Petitioner). The Board permitted the bond, in the amount of $44,100, to be forfeited to the extent of $20,000. The $20,000 figure represents a bond forfeiture of $1,000 for each of the twenty acres which the Board found had been affected by Petitioner's mining activities. Petitioner did not file a timely appeal from that order under Pa. R.A.P. 1512(a). Instead, Petitioner filed a motion, which the Board treated as one for reconsideration, alleging that only fifteen acres were subject to reclamation*fn1 and that the Board's

[ 77 Pa. Commw. Page 116]

    order, therefore, should have permitted only a $15,000 forfeiture. The Board denied Petitioner's motion by order dated April 6, 1982. Petitioner filed its petition for review with this Court on May 6, 1982.

The sole issue raised by Petitioner in this appeal is whether or not the forfeiture amount of $20,000 permitted by the Board was excessive. We must first determine, however, whether the issue presented by Petitioner may be considered by this Court at the present time.

In this regard DER has filed a motion to quash Petitioner's appeal on two grounds. First, DER contends that Petitioner is attempting, through this appeal, to challenge the merits of the Board's adjudication of March 11, 1982. We must agree that the specific issue raised by Petitioner here does go to the merits of the Board's decision on the forfeiture issue. Of course, the Petitioner cannot by way of the instant appeal from the Board's order of April 6, also gain review of the Board's March 11 adjudication. Having failed to file a timely appeal from the Board's original order pursuant to Pa. R.A.P. 1512(a) and having failed to obtain reconsideration of the Board's decision, Petitioner may not be permitted at this juncture to indirectly obtain appellate review of the Board's action of March 11.

We observe, however, that the petition for review filed with this Court cites the Board's order of April 6

[ 77 Pa. Commw. Page 117]

    as the only order which has been appealed.*fn2 Therefore, while we agree with DER that Petitioner may not use this appeal as a vehicle for resurrecting a challenge to the merits of the Board's original order, we do not think that the Petitioner's attempt to do so presents a reason for quashing the instant ...


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