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COMMONWEALTH PENNSYLVANIA v. RONALD BURR AND ROY AND MARCIA CUMMINGS AND CHARLES AND MARY HAUDENSHIELD (04/28/89)

decided: April 28, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, PETITIONER
v.
RONALD BURR AND ROY AND MARCIA CUMMINGS AND CHARLES AND MARY HAUDENSHIELD, RESPONDENTS



Appeal from the Order of the Environmental Hearing Board, in the case of Ronald Burr, Roy and Marcia Cummings, Charles and Mary Lou Haudenshield v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket Nos. 87-434-R; 87-435-R; and 87-436-R.

COUNSEL

Virginia Davison, with her, William S. Cumings, Jr., Assistant Counsel, for petitioner.

Howard J. Wein, for respondents.

Judges Craig and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 125 Pa. Commw. Page 476]

This Court granted permission to the Department of Environmental Resources (DER) to appeal from an interlocutory order of the Environmental Hearing Board (EHB) denying DER's motion to dismiss Appellees'*fn1 appeals to the EHB for lack of jurisdiction.

Appellees filed three separate appeals to the EHB from denials of their claims on mine subsidence insurance policies.*fn2 The policies were issued under subscriptions to the Coal and Clay Mine Subsidence Insurance Fund (Fund), a fund established by the Act of August 23, 1961, P.L. 1068, as amended, 52 P.S. §§ 3201-3241 (Subsidence Fund Act). The Fund is administered by the Coal and Clay Mine Subsidence Insurance Board (Subsidence

[ 125 Pa. Commw. Page 477]

Board), a division of DER. In the three cases at issue, the Subsidence Board denied the Appellees' claims, concluding that mine subsidence had not damaged their houses.

Appellees appealed to the EHB and DER moved to dismiss the appeals on the grounds that the Board of Claims had exclusive jurisdiction over these appeals. The EHB concluded that it did have jurisdiction and denied the motion. We affirm.

The sole issue before us is whether jurisdiction over these types of appeals lies in the Board of Claims or the EHB.

DER asserts that it has historically taken the position that the Board of Claims is the proper forum for the resolution of claim disputes arising under the Fund.*fn3 The Board of Claims was established by the Act of May 20, 1937, P.L. 728, as amended, 72 P.S. §§ 4651-1 -- 4651-10, "to arbitrate claims against the Commonwealth arising from contracts entered into by the Commonwealth . . . ." 72 P.S. § 4651-1. DER argues that since the insurance policies here at issue are contracts (citing Cleland Simpson Co. v. Firemen's Insurance Co. of Newark, 11 Pa. D. & C. 2d 607 (1957), aff'd, 392 Pa. 67, 140 A.2d 41 (1958)), the Board has exclusive jurisdiction to resolve these claim disputes. 72 P.S. § 4651-4 provides, in pertinent part: "The Board of Claims shall have exclusive ...


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