Appeal from the Order of the Environmental Hearing Board in the case of C & K Coal Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket Nos. 86-346-W and 86-361-W, dated December 18, 1986.
Henry Ray Pope, III, Pope, Pope and Drayer, for petitioner.
Michael E. Arch, Assistant Counsel, for respondent.
Judges Barry and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 112 Pa. Commw. Page 506]
C & K Coal Company (Petitioner) has appealed from an order of the Environmental Hearing Board (Board) dismissing its petitions for the allowance of appeals nunc pro tunc.
The relevant facts, as Petitioner summarized them in its notice of appeal to the Board are as follows:
On January 17, 1986 Richard Stempeck, an employee of the DER, assigned to the Knox, Pennsylvania office, issued a Compliance Order which required C & K Coal Company to treat [mine drainage] discharges allegedly emanating from Permit No. 1679123. . . . Immediately after said Order was entered, C & K and the DER orally agreed that the Order would be suspended pending submission of a hydrological study which was to be submitted by February 10, 1986. Subsequently the hydrological report was submitted and on February 10, 1986 a second Compliance Order involving the same violation was issued. . . . Within two days after [the second order] was received, the attorney for C & K wrote the DER concerning the second Compliance Order. . . . Neither C & K nor its counsel received any response to [said letter] and C & K was placed in satisfactory compliance until June 25, 1986 when it received an Inspection Report which required C & K to commence treatment.
Petitioner appealed from the order to commence treatment within the 30-day time limit, and filed requests for permission to file nunc pro tunc appeals from the compliance orders. It also sought to consolidate its appeal with the two requests to file nunc pro tunc appeals. The Board denied Petitioner's request to consolidate and dismissed the appeals from the compliance orders as untimely, prompting this appeal.
[ 112 Pa. Commw. Page 507]
The sole issue before us is whether the Board erred in denying Petitioner's request to file nunc pro tunc appeals. Petitioner contends that appeals nunc pro tunc are permitted when an appellant is precluded from filing an appeal because of fraud or a breakdown in the court's operations, misinformation provided by a person having authority to act, or misinformation provided by an interested party.
Even construing Petitioner's allegations of fraud in the light most favorable to it, the facts as set forth above are clearly distinguishable from cases wherein nunc pro tunc appeals have been allowed. In those cases, the occasion "must be extraordinary and must involve fraud or some breakdown in the Court's operation through a default of its officers, whereby a party has been injured . . ." Nixon v. Nixon, 329 Pa. 256, 259-60, 198 A. 154, 157 (1938). In Nixon, the Court allowed a nunc pro tunc appeal where the delay in filing the appeal was occasioned by the failure of the Superior Court to send notice of its order to appellant as was its custom.
Similarly, late filing of appeals has been excused due to unavoidable events which prevented timely filing: see e.g., Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) (sudden illness of lawyer's secretary in charge of appeal filings); Walker v. Unemployment Compensation Board of Review, 75 Pa. Commonwealth Ct. 116, 461 A.2d 346 (1983) (appellant did not become aware of adverse determination of unemployment compensation authorities until appeal period had expired as a result of failure of post office to forward notice of action to him); Perry v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 388, 459 A.2d 1342 (1983) (mechanical failure of ...