The opinion
Concurring Opinion by
Judge Kramer :
I agree with the majority’s analysis of the law and the results under the facts of this case. However, I believe I must register a caveat for the reason that I am concerned that the Department of Environmental Resources (DER) may use this case as precedent for imposing future hardships on coal operators.
It appears to me that the modus operandi of DER is to utilize the notice sent to the coal operator as a fmt accompli in the establishment of a basis for the refusal of the issuance of a future license or the reissuance of an annual license.
*628 I agree that the notice, in and of itself, is not an appealable adjudication. However, when DER uses that notice, which the appellant has no way to test or contest, as the basis for its refusal of a subsequent license, it is of little solace to a small coal operator to advise him that he can thereafter take an appeal on the license issue. There is no provision in the statute, nor in DER’s rules and regulations for an automatic supersedeas in such cases under which the coal operator could continue his operation while the reason for the refusal of the issuance of the license is finally resolved. Even if a supersedeas is granted upon petition, that takes several days, under the best of circumstances. If neither the statute nor DER’s rules and regulations provide for a continuance of a coal operator’s business, under such circumstances, then I am concerned that to deprive a coal operator of a means to clear his operation, or to prove that the notice has no valid foundation prior to the refusal of the license, and thereby deprive him of his business (even for a few days, which could be disastrous to the coal operator, whether small or large) may be a taking of his property without due process of law. Even if DER’s approach to this problem cannot be deemed to be violative of constitutional rights, such governmental practice from my point of view is unfair, and should not be condoned. Whenever possible, a citizen should be afforded the opportunity to protect his I property rights before a governmental deprivation.