decided: July 21, 1989.
TWELVE VEIN COAL COMPANY, PETITIONER,
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT
PETITION FOR REVIEW (ENVIRONMENTAL HEARING BOARD).
Eugene E. Dice, Harrisburg, for petitioner.
Mary Martha Truschel, Asst. Counsel, Harrisburg, for respondent.
Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, Palladino and Smith, JJ.
[ 127 Pa. Commw. Page 431]
Before us for consideration is a petition for review of an order of the Environmental Hearing Board (EHB) filed by Twelve Vein Coal Company (Coal Company). In that order, EHB granted the motion of the Department of Environmental Resources (DER) to dismiss the Coal Company's appeal of a civil penalty assessed by DER against the Coal Company.
On May 21, 1987, DER assessed a three thousand dollar ($3,000.00) civil penalty against the Coal Company for mining without a permit pursuant to Section 18.4 of the Pennsylvania Surface Mining Conservation and Reclamation
[ 127 Pa. Commw. Page 432]
Act*fn1 (SMCRA), 52 P.S. § 1396.22, and Section 605 of the Pennsylvania Clean Streams Law,*fn2 (CSL) 35 P.S. § 691.605. Both of these provisions provide for a right of appeal to EHB from DER's penalty assessment. In order to perfect an appeal pursuant to these sections, however, the party appealing must either forward the amount of the penalty to EHB for placement in an escrow account or post an appeal bond in the amount of the penalty. If it is determined, through administrative or judicial review of the civil penalty assessed, that no violation occurred or the penalty is reduced, DER is required to return the appropriate amount of money to the appellant with accumulated interest. The assessment document received by the Coal Company herein included instructions for filing and perfecting an appeal.
On June 22, 1987, the Coal Company filed an appeal from the civil penalty assessment with EHB. However, the Coal Company failed to perfect its appeal by either forwarding the amount of the penalty or posting an appeal bond in that amount.*fn3 Thereupon, DER filed a motion to dismiss the
[ 127 Pa. Commw. Page 433]
Coal Company's appeal to EHB on the ground that its failure to perfect the appeal deprived EHB of jurisdiction. EHB granted the motion to dismiss by order dated March 15, 1988. This petition for review followed.
The Coal Company is a small anthracite deep mine coal operator. It alleges in its petition for review that it was unable to comply with the statutory appeal procedure requiring that it post an appeal bond or prepay the amount of the civil penalty because of its poor financial condition. Due to this alleged inability to comply with the appeal procedure, the Coal Company was unable to perfect its appeal, which resulted in the dismissal of the appeal by EHB. The Coal Company therefore asserts that it has no legal remedy to attack the penalty assessment and that it has been unlawfully deprived of its constitutional due process opportunity to be heard.
The Coal Company presents two issues for our review, asserting first, that the prepayment requirements of Section 18.4 of the SMCRA and Section 605 of the CSL violate article V, Section 9, and article I, Section 11 of the Pennsylvania Constitution, and the Fifth and Fourteenth amendments to the United States Constitution; and second, that the statutory review process for civil penalty assessments before EHB violates the Seventh amendment to the United States Constitution because it fails to provide for a determination by a jury of liability for a civil penalty.
We have previously had occasion to address a similar petition in Boyle Land and Fuel Company v. Environmental Hearing Board, 82 Pa. Commw. 452, 475 A.2d 928 (1984). In that case, Boyle attacked the prepayment requirement on the grounds that it violated the unfettered right of appeal under article V, Section 9 of the Pennsylvania Constitution, and that it violated due process rights under article, I, Section 11 of the Pennsylvania Constitution and the Fifth and Fourteenth amendments to the United States Constitution.
[ 127 Pa. Commw. Page 434]
The Boyle court held that the prepayment requirement was a reasonable condition on Boyle's right to appeal, and that DER's regulations provided due process of law.*fn4 Further, we concluded that because there are few significant differences between the review procedures of the SMCRA and the CSL on the one hand, and the Federal Surface Mining Control and Reclamation Act of 1977 (Federal Act), 30 U.S.C. §§ 1201-1328 on the other, Section 18.4 of the SMCRA and Section 605 of the CSL were constitutional.*fn5
However, in Boyle, unlike the instant case, we noted that "[Boyle] and DER previously stipulated that [Boyle] had the
[ 127 Pa. Commw. Page 435]
financial capacity to post the security to perfect its appeal from DER's civil penalty." 82 Pa. Commw. at 455 n. 6, 475 A.2d at 929 n. 6. As such, for this reason and for the reason stated in note 4 supra, we believe the instant case to be distinguishable from Boyle.*fn6
Article V, Section 9 of the Pennsylvania Constitution provides as follows:
There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.
Further, article 1, section 11 provides that:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
We are not, in this case, faced with the situation where one who can afford to prepay the assessment or post a bond is before this Court to complain about the temporary deprivation of funds. We have, instead, a more serious
[ 127 Pa. Commw. Page 436]
issue; a petitioner who, because of alleged impecunity, may be denied access to our courts and due process of law. There is ample reason, therefore, to tread carefully in this case. See e.g. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (requiring courts to strike a balance between private and government interests).
However, we are unable to assess the Coal Company's claims at this juncture because the record is nonexistent with respect to its alleged inability to comply with the statutory appeal procedure by filing an appeal bond or prepaying the amount of the civil penalty assessment. EHB merely dismissed the Coal Company's appeal for lack of jurisdiction without any finding, as a matter of fact, that it was or was not financially able to comply with the appeal procedure. Accordingly, we are compelled to remand this matter back to EHB for a hearing in the nature of that contemplated by EHB in Ray Martin.
NOW, July 21, 1989, the order of the Environmental Hearing Board in the above-captioned matter is vacated, and this matter is remanded back to that Board for proceedings consistent with this opinion.