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UPPER ALLEGHENY JOINT SANITARY AUTHORITY v. COMMONWEALTH PENNSYLVANIA (12/08/89)

decided: December 8, 1989.

UPPER ALLEGHENY JOINT SANITARY AUTHORITY, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



PETITION FOR REVIEW, (ENVIRONMENTAL HEARING BOARD).

COUNSEL

James L. Nardelli, Nardelli & Nardelli, New Kensington, for petitioner.

Donna J. Morris, Dept. of Environmental Resources, Pittsburgh, for respondent.

Craig and Doyle, JJ., and Narick, Senior Judge.

Author: Craig

[ 130 Pa. Commw. Page 107]

The Upper Allegheny Joint Sanitary Authority appeals from an order of the Environmental Hearing Board granting the motion for summary judgment of the Department of Environmental Resources and dismissing the authority's appeal of the department's action returning the authority's unprocessed application for a sewage treatment plant subsidy pursuant to the Act of August 20, 1953, P.L. 1217, as amended, 35 P.S. ยง 701-703 (Act 339).

The issue in this case is whether the authority timely submitted its Act 339 application to the department.

The facts of this case are not in dispute. On February 1, 1988, the authority completed its Act 339 application. On that day, although the authority's office closed at 4:30 p.m.,

[ 130 Pa. Commw. Page 108]

    a general manager of the authority requested an employee to remain at the office in order to mail the authority's Act 339 application to the department.

Before receiving the authority's application, the employee, in anticipation of the next business day, changed the date on the authority's postage meter from February 1, 1988, to February 2, 1988. At approximately 5:15 p.m., the employee affixed postage to the envelope containing the application, but bearing a metered date of February 2, 1988. The employee then proceeded to the post office. Because the post office had already closed, the employee deposited the application in an outside receptacle marked "Out-of-Town".

The postal personnel do not remove mail placed in an "Out-of-Town" receptacle after 5:00 p.m. until the following morning. Thus, authority's application did not leave the post office until February 2, 1988.

The department received the authority's application on Monday, February 8, 1988. On the ground that the application was not received by the department or postmarked by January 31, as the law requires, the ...


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