Appeal from the Order of the Environmental Hearing Board, in the case of Dithridge House Association v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket No. 86-550-R, dated June 17, 1987.
Henry E. Rea, Jr., Brandt, Milnes & Rea, for petitioner.
Katherine S. Dunlop, Assistant Counsel, for respondent.
Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Craig.
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Dithridge House Association (Dithridge), the governing body of a condominium complex known as Dithridge House, appeals from a decision of the Environmental Hearing Board (board) affirming a decision of the Department of Environmental Resources (DER) which (1) rejected Dithridge's request to withdraw its application for a public bathing place permit for the condominium's swimming pool, (2) held that a permit was required, and (3) denied a permit for that pool as constructed.
The issues presented are (1) whether Dithridge should be precluded from arguing that a 1979 amendment to the Public Bathing Law, Act of June 23, 1931, P.L. 899, as amended, 35 P.S. §§ 672-680d, eliminates the permit requirement in regard to this pool, because of Dithridge's failure to appeal from a 1973 DER denial of a permit or a 1974 closure order issued by DER; (2) if Dithridge is not so precluded, whether DER has the
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authority, under the Public Bathing Law as it now exists, to deny a permit to Dithridge based on the lack of a four-foot wide deck on all sides of the pool, and (3) if not, whether DER has authority under the Administrative Code of 1929 to deny this permit.
The facts are not in dispute. In 1971 Dithridge built a swimming pool inside its condominium complex. The contractor who built the pool applied for a public bathing place permit for it in 1973. DER denied the application because the pool does not comply with the requirement of section 2.6.8 of DER's Bathing Place Manual that "[t]here shall be provided, completely around every swimming pool, a clear unobstructed paved walk or deck not less than four feet wide, extending from the pool side edge or lip of the coping of the pool . . . ."*fn1 The contractor did not appeal that denial. On June 3, 1974, DER ordered the pool closed until a bathing place permit was obtained. Neither the contractor nor Dithridge appealed from that order.
In 1979 the legislature amended the Public Bathing Law to exclude condominium pools from the definition of "public bathing place" except with respect to certain enumerated matters. In 1985 Dithridge submitted another application to DER for a permit for this pool. Dithridge later requested permission to withdraw that application because it had received a legal opinion to the effect that the 1979 amendment exempted the pool from the permit requirement. DER denied the request to withdraw the application, based on its view that the permit requirement still applied, and it denied the application
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because the pool still lacked a four-foot wide deck around all sides. Dithridge appealed that decision to the Environmental Hearing Board. The board granted summary judgment in favor of DER on the bases of its conclusions (1) that the provisions of the Public Bathing Law, including the permit requirement, still applied to this pool after the amendment of the law, and (2) that, "because Dithridge did not appeal DER's June 3, 1974 permit denial [meaning, apparently, the 1974 closure order, which was based on the findings of the 1973 permit denial], it is now estopped from challenging the findings set forth in that order." Dithridge has appealed from the board's decision.
DER contends that the doctrine of finality of administrative decisions precludes Dithridge from challenging the factual or legal basis for DER's earlier permit denial or closure order in this appeal of a subsequent permit denial, because Dithridge did not appeal from those earlier orders. The Pennsylvania Supreme Court applied this doctrine in Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corp., 473 Pa. 432, 375 A.2d 320, cert. denied, 434 U.S. 969 (1977), when a steel maker sought to challenge the constitutionality of certain DER regulations relating to particulate matter emissions. The court held that, because the company did not appeal from DER's initial order directing that it comply with the regulations by a specified date, the company was "precluded from attacking the validity or content of either the order or the underlying regulations in the instant enforcement proceeding." 473 Pa. at 443, 375 A.2d at 325.
The doctrine of administrative finality focuses upon the failure of a party aggrieved by administrative action to pursue his statutory ...