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decided: March 20, 1986.


Appeals from the Order of the Environmental Hearing Board in the case of John F. Culp, III v. Commonwealth of Pennsylvania, Department of Environmental Resources, and Consol Pennsylvania Coal Company, Docket No. 83-194-G.


Gary P. Hunt, with him, Anthony P. Picadio, Tucker Arensberg, P.C., for petitioner.

E. J. Strassburger, Strassburger, McKenna, Messer, Shilobod & Gutnick, for respondent.

Marc A. Roda, Assistant Counsel, for intervenor, Department of Environmental Resources.

Judges Doyle and Palladino and Senior Judge Kalish, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Doyle. Judge Colins dissents. Concurring and Dissenting Opinion by Judge Palladino.

Author: Doyle

[ 96 Pa. Commw. Page 95]

On May 28, 1985 this Court issued a decision wherein we upheld the determination of the Environmental

[ 96 Pa. Commw. Page 96]

Hearing Board (EHB) that John F. Culp (Culp) had standing to appeal the issuance by EHB of a subsidence permit issued to Consol Pennsylvania Coal Company (Consol). We reversed the EHB, however, in its determination that Culp's interest in his superincumbent coal seams was not protected by The Bituminous Mine Subsidence and Land Conservation Act, Act of April 27, 1966, Special Sess., P.L. 31, as amended, 52 P.S. §§ 1406.1-1406.21 (Act). We held that Culp was protected against Consol's mining activities so as to entitle him to a hearing on whether Consol complied with Section 5(e) of the Act, 52 P.S. § 1406.5(e). Section 5(e) states in pertinent part:

An operator of a coal mine subject to the provisions of this act shall adopt measures and shall describe to the department in his permit application measures that he will adopt to prevent subsidence causing material damage to the extent technologically and economically feasible, to maximize mine stability, and to maintain the value and reasonable forseeable [sic] use of such surface land. . . .

By our May 28, 1985 Order we remanded the case to the EHB for such a hearing on Consol's compliance. Subsequent to this determination that Culp had a right to challenge the permit's issuance, this Court received a timely petition for reconsideration which it granted. After reargument before the Court en Banc on October 9, 1985 and upon reconsidering the matter, we now vacate our order entered May 28, 1985.

The initial proceedings before the EHB were procedurally complicated, but an understanding of them is necessary. Initially, Culp filed a notice of appeal with the EHB alleging ownership of coal seams underlying Consol's permitted area and further alleging that the Department of Environmental Resources (Department)

[ 96 Pa. Commw. Page 97]

    had abused its discretion in issuing Consol a permit without considering Culp's interest in preserving the economic value of his coal seams and in failing to require Consol to adopt alternative mining methods pursuant to Section 5(e) of the Act. Consol filed a motion to quash the appeal maintaining that because Culp had not alleged either a surface ownership "and/or" construction of a structure on the surface he lacked standing to challenge the permit's issuance under the Act. The EHB denied the motion to quash and permitted Culp to file an amended notice of appeal wherein Culp alleged ownership of (1) coal seams which were superincumbent to Consol's coal seams and (2) 400 acres of land which "overlies the area encompassed within the permit." Subsequent to this, Consol filed a motion for partial dismissal of the appeal. In this motion Consol argued, in essence, that the amended notice did not state a cause of action because the Act does not protect subsurface coal rights. The motion also argued that because Culp had not alleged ownership of a surface structure he had no remedy at law. But, significantly, the motion did not seek dismissal on this basis. Rather, Consol stated in the motion that the motion's purpose was to simplify the proceedings "by eliminating any extraneous considerations relating to Culp's subsurface coal rights." Additionally, Consol further indicated that it did not intend to concede that any ownership which Culp may in fact have had in unstructured surface land would endow him with a cause of action.

The EHB on March 1, 1984 issued an opinion and order wherein it held that Culp had standing but that the Act was not intended to protect his coal seams. The rationale for the EHB decision was that the Act speaks in terms of structures upon the land, not features within the land. The EHB went on to ...

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