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MAYNARD C. GRAHAM AND MARIAN GRAHAM v. COMMONWEALTH PENNSYLVANIA (01/09/84)

decided: January 9, 1984.

MAYNARD C. GRAHAM AND MARIAN GRAHAM, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Original jurisdiction in the case of Maynard C. Graham and Marian Graham v. Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

Allan E. MacLeod, for petitioners.

Dennis W. Strain, Assistant Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Rogers.

Author: Rogers

[ 79 Pa. Commw. Page 403]

In an amended petition for review in the nature of a complaint in equity addressed to our original jurisdiction as provided by Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. ยง 761(a)(1), Maynard and Marian Graham have requested that we order the respondent, the Department of Environmental Resources (DER), to provide information and conduct

[ 79 Pa. Commw. Page 404]

    studies of the petitioners' property which they allege are necessary for them to apply to DER for a permit to mine coal and to provide them with information concerning a variety of other subjects. DER filed preliminary objections in the nature of a petition raising a question of jurisdiction, a demurrer, and a motion to strike impertinent matter.

The amended petition for review, stated in ninety-three paragraphs on thirty pages, to which are appended seventy-one pages of exhibits, essentially pleads that after the petitioners in July or August of 1979 had strip mined all of the coal from a bonded mining area under a DER mining permit, they continued to mine about ten acres off the bonded area with the consent of the property owner but without the necessary mining permit. The petitioners additionally allege that in October, 1979, DER "shut down" the mining on the unbonded area but in January, 1980, an arrangement was worked out between DER and the petitioners under which the petitioners were given a permit to mine the ten acres on condition that they pay the first $10,000 of receipts to DER as security for compliance with the statutes and regulations. The petitioners further allege that they continued to mine not only the ten acres covered by the agreement but also an additional off permit area. DER served the petitioners with a notice to cease mining operations which the latter ignored until they were enjoined from continuing operations by the Clearfield County Common Pleas Court on suit by DER. A court hearing on the matter was held and a court order dated March 21, 1980 was entered directing DER to accept a $60,000 second mortgage on the petitioners' property as a bond to cover a thirty acre amendment to the petitioners' permit, if it should be submitted to DER within ten days, and dissolving the

[ 79 Pa. Commw. Page 405]

    injunction unless the petitioners failed to submit the mortgage. The petitioners allege that they submitted a mortgage to DER prior to March 31, 1980, but no mining permit was issued. On April 22, 1980, the court continued its March 21, 1980 order in effect for ninety days from March 21, 1980.

The petitioners also allege that they continued to mine the unbonded area without a permit and on June 10, 1980 the Office of Surface Mining (OSM) of the United States Department of the Interior served the petitioners with a notice of violation of federal regulations prohibiting mining without a permit. On July 8, 1980, an Information Cessation Order Review was held and the reviewing officer concluded that OSM had acted properly in giving the petitioners the notice of violation and that the petitioners must cease mining without a permit or pay a fine of $750 for each day they violate the notice. The petitioners continued to mine and OSM imposed a fine in the amount of $22,500.

The petitioners also allege that on September 19, 1980, Maynard Graham was convicted in Clearfield County of making threats against Robert P. Ging, Jr., who was the DER attorney who had handled DER's litigation against the petitioners. The petitioners allege that Mr. Ging's actions on behalf of DER were "abusive, unprofessional, based upon misstatements of fact and law, and [were] contrary to any sense of balanced and guided discretion uniformly applied."

Following another hearing in the equity case, the Court of Common Pleas of Clearfield County on January 15, 1981 vacated its order of March 21, 1980 requiring DER to accept a $60,000 mortgage as a bond and ordered that the petitioners "cease mining on any and all areas where no bonds ...


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