failure to appeal to EHB from a DER order granting a variance until a given date rendered that order final and foreclosed any attack on its validity or content in the enforcement proceeding
How later courts described this case
- failure to appeal to EHB from a DER order granting a variance until a given date rendered that order final and foreclosed any attack on its validity or content in the enforcement proceeding
- order precluding presentations of affirmative defense held final
Written by the judges who cited it.
The opinion
*444 POMEROY, Justice,
concurring and dissenting.
The order of the Commonwealth Court dated December 10, 1975 prohibits appellant Wheeling from introducing at trial evidence relative to the validity of the September 25, 1972 order of the DER and regulations in support thereof; it also denies Wheeling’s request for a jury trial. Had the order been directed only to the latter point, certainly the correct' disposition of an appeal therefrom would be to quash as interlocutory. As it is, however, it seems to me that the Court is being more technical than practical in isolating the jury trial portion of the order and quashing it. All agree that the principal part of the order of the Commonwealth Court, that which denies Wheeling the opportunity to present evidence relevant to a complete defense, is a final order and hence properly before us. See, e. g., Posternack v. American Casualty Co. of Reading, 421 Pa. 21 , 218 A.2d 350 (1966). Because of this I can see no jurisprudential purpose to be served by our delaying a decision on the jury trial question; we are still obliged now to entertain the appeal from that portion of the order below which is final, and a decision now on the jury issue might avoid a later appeal and a duplicative trial proceeding. *
By way of analogy, the same considerations of judicial economy-and convenience which impel federal courts to entertain jurisdiction over a “pendent” state cause of action, of which a federal court would not otherwise have subject matter jurisdiction, suggest that the more prudent approach in the case at bar is for the Court to hear the appeal in its entirety. See United Mine Workers v. *445 Gibbs, 388 U.S. 715 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966).
For the reasons above indicated, I dissent from the Court’s partial grant of appellee’s motion to quash. In all other respects, I join in the opinion of Mr. Justice O’BRIEN.
There may be cases where the issue involved in the “final” portion of an order appealed from is so lacking in substance as to be frivolous. Where this is so, I believe an appellate court should decline to exercise its discretion to decide the non-final issues, lest it lend encouragement to the use of the appealable aspect of the order as a mere vehicle for having interlocutory claims heard on appeal. Cf. Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977).