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filed: September 1, 1988.




William H. Andring, Esq., Camp Hill, Pa. for PETITIONER

Amy L. Putnam, Esq., Harrisburg, Pa. FOR HEMPT BROS, INC., Horace A. Johnson, Esq., James A. Johnson, Esq., MYERS, JOHNSON, DUFFIE & WEIDNER, Lemoyne, Pa. for RESPONDENT

Before Honorable John A. MacPhail, Judge, Honorable James Gardner Colins, Judge, Honorable Emil E. Narick, Senior Judge. Judge MacPhail dissents.

Author: Colins


The Commonwealth of Pennsylvania, Department of Environmental Resources (Department) and Hempt Bros., Inc. (Hempt) have requested reconsideration of an Opinion and Order of this Court, dated February 25, 1988, which reversed a decision of the Environmental Hearing Board (Board) dismissing as untimely an appeal filed by the Lower Allen Citizens Group (petitioner) challenging the Department's issuance of a permit to Hempt. Concurrently, we remanded the matter to the Board so that a hearing might be conducted and an adjudication issued. By order dated May 2, 1988, we granted reconsideration to address arguments raised by the Department and Hempt suggesting that we mischaracterized petitioner as a "person" rather than a "party" to the instant proceeding and thus subject to the more liberal appeal period applicable to persons. See 25 Pa. Code § 21.36. Our characterization, of course, rendered petitioner's appeal timely.

We find it necessary to repeat the following facts, previously set forth in our prior decision. See Lower Allen Citizens Action Group, Inc. v. Department of Environmental Resources, Pa. Commonwealth Ct. , 538 A.2d 130 (1988). Petitioner first became involved in the Department's processing of Hempt's application for a mine drainage permit by filing objections thereto on February 10, 1985. On September 17, 1985, the Department conducted a public hearing on the application with counsel for petitioner and several members in attendance.*fn1 The Department subsequently approved the application and, on March 20, 1986, a Department employee advised petitioner's attorney by letter that the permit had been issued on March 18, 1986, and that any appeal of such action must be filed within thirty days of the receipt of the letter. Notice of the approval appeared in the Pennsylvania Bulletin on April 5, 1986, and on May 5, 1986, petitioner filed a Notice of Appeal with the Board. The Board guashed petitioner's appeal as untimely and the instant appeal to this Court followed.

The heart of this matter, as indicated in our initial decision, is the characterization of petitioner as either a "party" or "person" as so defined in 25 Pa. Code § 21.2. That regulation defines "party" as a "person with the right to institute or defend or otherwise appear and participate in proceedings before the Board. A party shall be an appellant, appellee, plaintiff, defendant or intervenor." The term "person" is therein defined as an "individual, partnership, association, corporation, political subdivision, municipal authority or other entity."*fn2

The difficulty arises, as we now view it, when the definitional terms "party" and "person" come into play with the notice provision of 25 Pa. Code § 21.36. That provision states that "[p]ublication of a notice of action or proposed action by the department or board in the Pennsylvania Bulletin shall constitute notice to or service upon persons, except a party, effective as of the date of publication." (Emphasis added.) We believe the definitions of "party" and "person" interact with the quoted notice provision in an untenable and inconsistent fashion. For example, if an interested person, in perusing the Pennsylvania Bulletin, becomes aware of an adverse departmental action and files an appeal with the Board, he becomes a "party" as defined in 25 Pa. Code § 21.2 (a "party" is "an appellant"). By that juncture, however, the appeal period applicable *to parties may well have expired. See 25 Pa. Code § 21.52. That is the scenario of the instant case.

At issue here is a procedure by which interested taxpayers are afforded an opportunity to be heard in a governmental forum. Petitioner does not dispute that it received actual notice by mail of the Department's approval of Hempt's application for an amendment to its permit and readily admits that it participated in the public hearing pertaining to same. Nevertheless, where, as here, the pertinent regulations are ambiguous, we choose to err on the side of assuring that opportunity.

Accordingly, we affirm our initial determination that petitioner received notice of the Department's adverse action upon publication in the Pennsylvania Bulletin. As we previously indicated, petitioner had thirty days from that date within which to file an appeal to the Board and did so. Therefore, the appeal is timely.


AND NOW; this 1st day of September, 1988 following reconsideration, our prior Order of February 25, 1988 is confirmed; the decision of the Environmental Hearing Board in the above-captioned matter is reversed and the case is remanded ...

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