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CLAIR D. AND VICKI HARDY AND CURTIS A. AND SUZANNE C. EPPLEY AND JACK E. AND ELIZABETH H. NAEGELE AND LOU AND CAROLYN HOFFMAN v. COMMONWEALTH PENNSYLVANIA (09/24/86)

decided: September 24, 1986.

CLAIR D. AND VICKI HARDY; AND CURTIS A. AND SUZANNE C. EPPLEY; AND JACK E. AND ELIZABETH H. NAEGELE; AND LOU AND CAROLYN HOFFMAN, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board in the case of Clair D. and Vicki Hardy et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 83-127-M.

COUNSEL

Eugene E. Dice, for petitioners.

Timothy J. Bergere, Assistant Counsel, with him, Paul Simon, for respondent.

Judges MacPhail and Colins, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 101 Pa. Commw. Page 2]

Clair D. and Vicki Hardy et al. (petitioners) appeal an order of the Environmental Hearing Board (Board), which denied their application for attorneys' fees pursuant to the Act of December 13, 1982, P.L. 1127, 71 P.S. ยงยง 2031-2035 (Costs Act or Act).

Petitioners are property owners in Hill-N-Dale Estates, a seven lot subdivision in Carroll Township (Township), York County. This subdivision had not been incorporated into the official Township Sewage Facilities Plan and, after their existing sand-lot septic system malfunctioned,*fn1 petitioners requested that the Department of Environmental Resources (Department) compel the Township to amend the official plan and provide

[ 101 Pa. Commw. Page 3]

    for effective sewage disposal.*fn2 On June 2, 1983, petitioners were notified by the Department that the Township had retained an engineering firm to seek a "cost effective and environmentally sound solution to [their] sewage problems" and to "prepare a revision" to the official Township plan. Petitioners appealed this decision to the Board.

On June 8, 1984, while the appeal was pending, the Department ordered the Township to revise its official sewage plan so as to adequately address the current and future needs of petitioners' subdivision. The Department moved to dismiss the appeal as moot and petitioners, admitting that the Department's order effectively satisfied their initial request for revision, agreed to withdraw their appeal.

Petitioners then filed an application for an award of attorneys' fees pursuant to the Costs Act, which petition, as we have indicated, was denied by the Board. In its decision, the Board determined that: (1) any Department action appealable to the Board, as is the denial of a private request to revise an official sewage facilities plan, constitutes an adversary adjudication, as defined in the Act, but that (2) the Act applies only to those adversary adjudications initiated by the Department, namely, to those cases in which an agency, upon its own initiative, takes some action against a party. The Board concluded that the Costs Act did not apply to these proceedings because the Department had not initiated the action.

[ 101 Pa. Commw. Page 4]

We must determine whether petitioners are entitled to an award of counsel fees, pursuant to the Costs Act, where the Department defers action on a petition to compel revision of an official sewage disposal plan. We believe an interpretation of ...


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