Appeal from the Order of the Pennsylvania Environmental Hearing Board in the case of Al Hamilton Contracting Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 83-248-G.
William C. Kriner, Kriner and Koerber, for petitioner.
Timothy J. Bergere, Assistant Counsel, for respondent.
Judges Craig and Doyle and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Senior Judge Kalish concurs in the result only.
[ 90 Pa. Commw. Page 229]
This is an appeal by the Al Hamilton Contracting Company (Hamilton) from an order of the Environmental Hearing Board (EHB) dismissing Hamilton's appeal of an abatement order as moot. On September 3, 1983 a Department of Environmental Resources (DER) inspector conducted an inspection of Hamilton's operation. During his inspection, the inspector noticed that an underdrain constructed by Hamilton was plugged with silt and other debris. In his written report the inspector included an instruction that Hamilton clean the underdrain. On September 19, 1983 two supervisory inspectors conducted a partial examination of Hamilton's operation; they noted that a catch basin and diversion ditch needed cleaning and further noted that the underdrain, which had been examined on September 3, 1983, was still plugged. Consequently, on September 19, 1983 the two supervisors ordered Hamilton to clean up the diversion ditch, catch basin and underdrain by September 30, 1983. This September 19, 1983 order apparently was not formalized until it appeared as an abatement order dated September 29, 1983 and issued pursuant to Section 4.3 of the Act of May 31, 1945, P.L. 1198, as amended, 52 P.S.
[ 90 Pa. Commw. Page 230]
§ 1396.4c (Act).*fn1 The compliance date was, however, extended at Hamilton's request to October 15, 1983. An inspection on October 20, 1983 revealed that Hamilton had fully complied with the September 19, 1983 directive and the September 29, 1983 abatement order.
On October 28, 1983 Hamilton filed an appeal from the September 29, 1983 abatement order with the EHB alleging, inter alia, that the abatement order was devoid of any factual basis, that it was arbitrary and capricious, that compliance by September 30, 1983 had been physically impossible because the order had not been received until October 4, 1983, and that the order violated constitutional and statutory rights because no hearing had been afforded to Hamilton prior to the administrative order. At no time did Hamilton seek a stay of the September 29, 1983 order. By order dated February 23, 1984 the EHB concluded that the September 29, 1983 order had been fully complied with and, thus, that there was no relief which the EHB could grant. Accordingly, it dismissed the appeal as moot. Hamilton has appealed that dismissal to this Court.
[ 90 Pa. Commw. Page 231]
Where there is no fact finding below, our scope of review is, of necessity, limited to determining whether there has been a constitutional violation or an error of law. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. In determining whether a case is moot, the appropriate inquiry is whether the litigant has been deprived of the necessary stake in the outcome, In Re Gross, 476 Pa. 203, 382 A.2d 116 (1978), or whether the court (or agency) will be able to grant effective relief. Commonwealth v. One 1978 Page 231} Lincoln Mark V, 52 Pa. Commonwealth Ct. 353, 415 A.2d 1000 (1980).
In attempting to demonstrate the necessary stake, Hamilton first maintains that by complying with the DER abatement order it expended time and money and is now deprived of the opportunity to challenge whether it was, in fact, guilty of the named violations. It argues that denial of a hearing constituted deprivation of property without due process. Hamilton has already complied with the abatement order; certainly the EHB would not issue an order after a hearing directing them to again plug the catch basin, diversion ditch and underdrain. While sums of money may have been expended, the clean up is now complete. Had Hamilton seriously questioned the propriety of the abatement order it could have requested a stay pursuant to DER regulation 21.76, 25 Pa. Code § 21.76. This it failed to do. Thus, it took the clean-up action at its own risk that such action would not, in fact, be found to be legally required. The fact that Hamilton was deprived of property without a hearing because of its compliance with the abatement order does not justify ignoring the fact that the appeal is moot with respect to the injury of expenditure of time and money to achieve compliance with the abatement order. To the contrary, where a case is moot and a constitutional issue is raised the courts are most reluctant to consider the constitutional claim. In Re Gross, 476 Pa. at 210, 382 A.2d at 120.
Hamilton next maintains that a civil penalty has been assessed against it pursuant to Section 18.4 of the Act,*fn2 52 P.S. § 1396.22. DER has pointed out, however, that this civil penalty is a separate agency action. Section 18.4 provides in pertinent ...