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BOYLE LAND AND FUEL COMPANY v. COMMONWEALTH PENNSYLVANIA (05/15/84)

decided: May 15, 1984.

BOYLE LAND AND FUEL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, ENVIRONMENTAL HEARING BOARD ET AL., RESPONDENTS



Original Jurisdiction in the case of Boyle Land and Fuel Company v. The Environmental Hearing Board; Edward Gerjuoy, Member; Anthony J. Mazullo, Jr., Member, and Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

George G. Mahfood, with him, Gregg M. Rosen, Rosen & Mahfood, and James R. Kelley, for petitioner.

Diana J. Stares, with her, William F. Larkin, Assistant Counsels, for respondent, Department of Environmental Resources.

John G. Knorr, III, Deputy Attorney General, with him, Allen C. Warshaw, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondent, Environmental Hearing Board.

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

Author: Macphail

[ 82 Pa. Commw. Page 453]

Boyle Land and Fuel Co. (Petitioner) commenced this action in our original jurisdiction seeking both equitable and declaratory judgment relief. Petitioner's applications for summary relief and for a preliminary injunction have been denied. We now have before us for disposition Petitioner's motion for summary

[ 82 Pa. Commw. Page 454]

    judgment seeking to declare Section 18.4 of the Surface Mining Conservation and Reclamation Act*fn1 (SMCRA) and Section 605 of the Clean Streams Law*fn2 (CSL) unconstitutional. Both sections require persons or municipalities who wish to appeal an assessment of a civil penalty by the Department of Environmental Resources (DER), to deposit the amount of the assessment in an escrow account in the State Treasurer's office or file a surety bond in the amount of the assessment as a condition precedent to the hearing of the appeal by the Environmental Hearing Board (EHB). DER and EHB (Respondents) have filed a cross motion for summary judgment.

On July 22, 1983, DER assessed a $27,000 civil penalty against Petitioner for five violations of various provisions of the SMCRA and CSL. Petitioner was advised in the notice of assessment that it had the right to appeal the assessment to the EHB but would be obligated to follow the appeal provisions of the SMCRA and CSL, including the deposit or surety bond.*fn3 On July 29, 1983, Petitioner filed a notice of

[ 82 Pa. Commw. Page 455]

    appeal with the EHB and its petition for review with this Court, requesting this Court to declare that the bond requirement is unconstitutional because it violates the unfettered right of appeal under Article V, Section 9 of the Pennsylvania Constitution and violates due process rights under Article I, Section 11 of the Pennsylvania Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. Petitioner subsequently amended the petition for review stating additionally that the bond requirement unduly burdens the right to an administrative hearing under Section 504 of the Administrative Agency Law*fn4 (AAL) and the right to judicial review under Sections 701 and 702 of the AAL.*fn5

After this Court on September 29, 1983, denied Petitioner's motion for summary relief and petition for preliminary injunction, Petitioner filed with the DER a $27,000 surety bond in order to perfect its appeal with the EHB.*fn6 This Court must now decide whether either party ...


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