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CADOGAN TOWNSHIP BOARD SUPERVISORS v. COMMONWEALTH PENNSYLVANIA (11/09/88)

decided: November 9, 1988.

CADOGAN TOWNSHIP BOARD OF SUPERVISORS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board, in the case of Cadogan Township Board of Supervisors v. Commonwealth of Pennsylvania, Department of Environmental Resources and Kittanning Equipment, EHB Docket No. 87-440-R.

COUNSEL

Gerald G. DeAngelis, for petitioner.

Donna J. Morris, with her, George Jugovic, for Department of Environmental Resources.

Mark D. Shepard, Buchanan Ingersoll Professional Corporation, for intervenor, Kittanning Equipment Leasing Company.

Judges Barry and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 121 Pa. Commw. Page 19]

Cadogan Township Board of Supervisors (Petitioner) appeals from an order of the Environmental Hearing Board (EHB) dismissing Petitioner's appeal as untimely. We affirm.

On October 13, 1987, Petitioner's appeal of Encroachment Permit No. E03-220 issued to Kittanning Equipment Leasing Company (Kittanning) was received

[ 121 Pa. Commw. Page 20]

    by the EHB. Petitioner stated in the notice of appeal that notice of the permit's issuance appeared at 17 Pa. B. 3637 (1987) on September 5, 1987. The Department of Environmental Resources (DER) thereupon moved to dismiss the appeal on the ground that Petitioner had filed beyond the thirty day statutory time limit;*fn1 therefore, the Board was without jurisdiction to hear said appeal. The Board granted the motion to dismiss and Petitioner now appeals the Board's decision to this Court.

Petitioner's argument before the EHB as well as this Court is that its appeal should be granted nunc pro tunc because the late filing resulted from Petitioner's reliance on an erroneous address for the EHB published in the Pennsylvania Bulletin. It is undisputed that an incorrect address for the EHB appeared at 17 Pa. B. 3855 (1987), which had a publication date of September 26, 1987.

[ 121 Pa. Commw. Page 21]

The time limit on filing an appeal is a jurisdictional limitation which mandates the quashing of untimely appeals. Appeal of C.K. and L.K., 369 Pa. Superior Ct. 445, 535 A.2d 634 (1987). Generally, appeals nunc pro tunc have only been permitted in extraordinary situations involving fraud or some breakdown in the court's operation through default of its officers. C. & K. Coal Co. v. Department of Environmental Resources, 112 Pa. Commonwealth Ct. 505, 535 A.2d 745 (1988); Rostosky Page 21} v. Department of Environmental Resources, 26 Pa. Commonwealth ...


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