# Commonwealth v. Bethenergy Mines, Inc.

> Supreme Court of Pennsylvania · September 29, 2000 · 563 Pa. 170

URL: https://www.frixlaw.com/law-library/cases/4957443

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION v. BETHENERGY MINES, INC.
- **Court:** Supreme Court of Pennsylvania
- **Decided:** September 29, 2000
- **Citations:** 563 Pa. 170; 758 A.2d 1168; 2000 Pa. LEXIS 2402
- **Precedential status:** Published
- **Opinion:** Concurrence by Saylor
- **Judges:** Cappy, Castille, Files, Flaherty, Newman, Nigro, Saylor, Zappala
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4957443

## Opinion text

SAYLOR, Justice,
concurring.
I join the majority in its holding that Section 5(g) of the Mine Subsidence Act, 52 P.S. § 1406.5(g), does not authorize an award of attorneys’ fees against the Department in this appeal from a compliance order issued pursuant to the Department’s authority under Section 9 of the Act, 52 P.S. § 1406.9.1 am not as troubled, however, as the majority by the Department’s compliance-order references to Section 5(e) of the Act, 52 P.S. § 1406.5(e), establishing the requirement for Bethenergy’s subsidence control plan (also referenced, described and relied upon by the Department as a basis for its action), which was a necessary point of reference from which to evaluate Bethenergy’s compliance. Moreover, I question whether the vesting of authority in the Environmental Hearing Board to make a discretionary award of attorneys’ fees in Section 5(g) was ever in the first instance intended by the General Assembly as a basis for awarding monetary relief against the Department related to its essential performance of its statutory role in permitting and bonding matters. Resolution of such question would necessarily entail consideration of the Commonwealth’s sovereign immunity in connection with construction of Section 5 of the Act, and whether there is an express, applicable waiver to be found within the Act’s provisions. Given the Court’s holding that Section 5(g) is not implicated in the first instance, such issue need not be resolved in the present appeal — I write merely to make my reservation express.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4957443. Public record. Not legal advice.