Petition — Wheeling-Pittsburgh Steel Corp. v. Department of Environmental Resources

IN THE

Supreme Court of the United States

October Term, 1977

No UT = 952

WHEELING PITTSBURGH STEEL CORPORATION,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF

ENVIRONMENTAL RESOURCES,

Respondent.

PETITION For Wart Of CrEertTiorari

To THe SupreEME Court Or PENNSYLVANIA

Paut A. MANION

Kerry A. KEARNEY

ArtTuur J. Greir

REED SMITH SHAW & McCLAY

747 Union Trust Building

Pittsburgh, PA 15219

Counsel for Petitioner,

Wheeling Pittsburgh

Steel Corporation

Financia! Press Corporation, Pittsburgh

INDEX TO PETITION

Page

(celeb scunwaae l

as au l

QUESTION PRESENTED FOR REVIEW .......... 2

CONSTITUTIONAL PROVISION AND

SEAT TE TIVE neces ccccccccccccccccs 2

STATEMENT OF THE CASE .......... 00000000005 3

REASONS FOR GRANTING THE WRIT........... 3

I as Be a ee ie ndacts 7

INDEX TO APPENDIX

APPENDIX A:

Opinion of the Supreme Court of Pennsylvania... la

APPENDIX B:

Opinion of the Commonwealth Court of

Pennsylvania

TABLE OF CITATIONS

CASES

Boddie v. Connecticut, 401 U.S. 371, 377 (1971) ....

Page

4

Com. v. Derry Twp., 466 Pa. 31, 351 A.2d

EE shdccdacdevesduaeeawadecsdbessevne 5

5

4

4

5

4,6

Com. ex rel. Dunson v. Erie Ins. Exch.,

465 Pa. 240, 348 A.2d 742 (1976) ..............

Goldberg v. Kelly, 397 U.S. 254 (1970).............

Hovey v. Elliott, 167 U.S. 409, 42 L.Ed.

ER ccuen Pia ciddihedeaeecdened &se60x

Philadelphia v. Sam Bobman Department Stores

Co., 189 Pa. Super. 72, 149 A.2d 518 (1959).....

Smith v. U.S., 199 F.2d 377 (Ist Cir. 1952) ........ .

Standard Lime and Refractories Co. v. DER,

2 Pa. Cmwilth. 434, 279 A.2d 383 (1971) ........ 5

U.S. v. McCrillis, 200 F.2d 884 (Ist Cir. 1952) ..... 4,6

Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed.

PP éi06 gut cd eueaedeunteenesaéeveces 4

AUTHORITIES

3 Davis, Administrative Law Treatise,

eT i ED cea c can stedscendse os 4

L. Jaffe, Judicial Control of Administrative

Action, at 426 (1965 ed.) ........ccceececceees 4

CONSTITUTION, STATUTE AND REGULATIONS

United States Constitution, Amendment XIV,

re! pool cis cei eehe eee eddie déeeetes

to

Pennsylvania Air Pollution Control Act,

35 Purdon’s Pa. Stat. Ann. §4004(4.1) ......... 3, 6

35 Purdon’s Pa. Stat. Ann. §4005(1)............ 5

35 Purdon’s Pa. Stat. Ann. §4013.5............. 5

5

De en nn ee es cegeedasad

IN THE ]

Supreme Court of the United States

October Term, 1976

No.

WHEELING PITTSBURGH STEEL CORPORATION,

Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent.

Petition For Warr Or CEertiorari

‘To THe SupreMe Court Or PENNSYLVANIA

Wheeling Pittsburgh Steel Corporation, petitioner

herein, prays for a writ of certiorari to review the judgment

of the Supreme Court of Pennsylvania in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania is

reported at 375 A.2d 320 (1977) and is reproduced as

Appendix A. The opinion of the Commonwealth Court of

Pennsylvania is reported at 22 Pa. Cmwilth. 280, 348 A.2d 765

(1975) and is reproduced as Appendix B.

JURISDICTION

The judgment of the Supreme Court of Pennsylvania

was entered on July 8, 1977. The jurisdiction of this Court i is

invoked pursuant to 28 U.S.C. §1257(3).

2 Questions Presented for Review

¢& Constitutional Provision and

Statute Involved

QUESTION PRESENTED FOR REVIEW

Whether a ruling which deprives petitioner of any

opportunity to be heard on its constitutional and other

defenses to the validity and enforceability of the order and

regulations which are the subject of this enforcement action

against it violates petitioner's Fourteenth Amendment rights

to due process of law?

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

Section 1 of the Fourteenth Amendment to the United

States Constitution provides as follows:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Section 4 of the Pennsylvania Air Pollution Control Act

provides in relevant part as follows:

“All department orders shall be in writing, contain

therein a statement of the reasons for their issuance, and

be served either personally or by certified mail. Within

thirty (30) days after service of any such order the

person to whom the order is issued or any other person

aggrieved by such order may file with the hearing board

an appeal setting forth with particularity the grounds

relied upon. An appeal to the hearing board of the

department's order shall not act as a supersedeas:

Provided, however, That upon application and for

cause shown, The Hearing Board of the Com-

monwealth Court may issue such a supersedeas. Any

Statement of the Case & 3

Reasons for Granting the Writ

person aggrieved by an adjudication of the hearing

board may appeal to the Commonwealth Court.”

35 Purdon’s Pa. Stat. Ann. §4004(4.1)

STATEMENT OF THE CASE

In this action, filed in the Commonwealth Court of

Pennsylvania, the respondent, Commonwealth of Penn-

sylvania, Department of Environmental Resources (herein-

after the “DER”), seeks to enforce its administrative order

requiring petitioner Wheeling-Pittsburgh Steel Corporation

to comply with certain regulations of the DER concerning

sinter plant emissions. In its answer, petitioner challenged

the validity and enforceability of the DER order and

regulations on a number of grounds, several of which raised

federal constitutional questions. Among others, petitioner

alleged that the regulations exceed the state’s police power

because they are unnecessarily stringent for the protection of

the public health, safety and welfare, are arbitrary and

capricious, are incapable of rational enforcement and are

void for vagueness.

The Commonwealth Court ruled that petitioner would

not be permitted to introduce evidence relevant to these

defenses in this proceeding (Appendix B), and that ruling has

been affirmed by the Supreme Court of Pennsylvania

(Appendix A). Petitioner seeks review of that ruling in this

Court.

REASONS FOR GRANTING THE WRIT

The ruling in question deprives petitioner of any

opportunity to be heard on its constitutional and other

defenses to the validity and enforceability of the order and

regulations which are the subject of this enforcement action

against it. Petitioner respectfully submits that the ruling

therefore violates its Fourteenth Amendment right to due

process of law.

4 Reasons for granting the Writ

As pointed out in Boddie v. Connecticut, 401 U.S. 371,

377 (1971), early in our history this Court firmly established

the principle that, at a minimum, due process requires a

meaningful opportunity to be heard in one’s defense. That

principle has recurred again and again in the decisions of this

Court for over a hundred years. See, e.g., Windsor v.

McVeigh, 93 U.S. 274, 23 L.Ed. 914 (1876); Hovey v. Elliott,

167 U.S. 409, 42 L.Ed. 215 (1897); Goldberg v. Kelly, 397 U.S.

254 (1970); and cases cited in Boddie, 401 U.S. at 377, n. 3.

There could, of course, hardly be a more fundamental

defense on which a defendant should have the right to be

heard than a challenge to the validity and enforceability of

the order and regulations which are the very subject of the

action against him. It is for this reason that the federal courts

have consistently held that, except in the most unusual of

circumstances, one can always challenge the validity and

enforceability of an order or regulation in an enforcement

action. U.S. v. McCrillis, 200 F.2d 884 (1st Cir. 1952); Smith

v. U.S., 199 F.2d 377 (Ist Cir. 1952). See also: 3 Davis,

Administrative Law Treatise, §23.07 at 320 (1958 ed.); and

L.. Jaffe, Judicial Control of Administrative Action, at 426

(1965 ed.). Yet the ruling of the courts below, if permitted to

stand, would deny petitioner any opportunity to be heard on

these fundamental defenses.

The courts below attempt to justify their ruling on the

ground that petitioner should have raised these defenses in

an appeal from the DER order which had granted it a

variance from the regulations in question. That rationale is

based upon a fundamental misconception of the statutory

scheme of the Pennsylvania Air Pollution Control Act

(hereinafter “the APCA”), the grant of variances thereunder

and the nature of the DER order which granted petitioner its

variance.

. ~ - ———TT

Reasons for Granting the Writ 5

The APCA authorizes the adoption of regulations for

the prevention, control, reduction and abatement of air

pollution. 35 P.S. Purdon’s Pa. Stat. Ann. §4005(1). Pursuant

to that authority the regulations in question were promul-

gated and became effective on March 19, 1972. 2 Pa. Bulletin

383. However, because the regulations were technology-

forcing in nature and were technologically impossible of

compliance for certain industries at the time they were

adopted, the APCA was amended to give the DER the

power to grant variances therefrom. 35 Purdon’s Pa. Stat.

Ann. §4013.5. It was pursuant to this procedure that

petitioner applied for and received the identical variance

which it had requested from the DER.

The courts below assert that petitioner nonetheless

should have appealed from the DER order which granted it

that variance because the order imposed an obligation of

compliance with the regulations by April 30, 1973. But

having been granted the very relief which it had requested,

petitioner was not aggrieved by that order and it therefore

had no right to appeal therefrom at that time.'

Moreover, petitioner had no way of knowing at the time

its variance was granted that the regulations would prove

impossible of compliance after the variance had expired.

Thereafter, petitioner immediately challenged the validity

and enforceability of the regulations as soon as the DER

‘In concluding that petitioner was aggrieved by the order which

yranted it the identical variance which it had requested, the courts below

relied upon such Pennsylvania cases as Com. v. Derry Twp., 466 Pa. 31,

351 A.2d 606 (1976); Com. ex rel. Dunson v. Erie Ins. Exch., 465 Pa. 240,

348 A.2d 742 (1976); Philadelphia v. Sam Bobman Department Stores Co.,

189 Pa. Super. 72, 149 A.2d 518 (1959); and Standard Lime and

Refractories Co. v. DER, 2 Pa. Cmwith. 434, 279 A.2d 383 (1971). But in

each of those cases, unlike the case at bar, the defendant had been directly,

immediately and substantially aggrieved by the order in question. Here

petitioner had received the very relief it had requested in the order.

6 Reasons for Granting the Writ

attempted to enforce them against it. As the Smith and

McCrillis cases point out, as a matter of constitutional due

process a defendant in an enforcement action can always

challenge the validity and enforceability of the ad-

ministrative order or regulation in question unless there is a

clear legislative intent to the contrary. And there is no such

intent in the Pennsylvania Air Pollution Control Act under

which even a person who has been aggrieved by an order of

the DER may, but is not required to, appeal therefrom. 35

Purdon’s Pa. Stat. Ann. §4004(4.1).

Conclusion 7

CONCLUSION

For these reasons, petitioner requests the Court to issue

a writ of certiorari to review the judgment of the Supreme

Court of Pennsylvania.

Respectfully submitted,

Paut A. MANION

Kerry A. KEARNEY

ARTHUR J. GREIF

REED SMITH SHAW & McCLAY

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner,

Wheeling Pittsburgh Steel

Corporation

APPENDIX A la

Supreme Court of Pennsylvania

WESTERN DisTrRict

COMMONWEALTH OF

PENNSYLVANIA, DEPART-

MENT OF ENVIRON-

MENTAL RESOURCES No. 64

v. March Term, 1976

WHEELING-PITTSBURGH

STEEL CORPORATION,

Appellant )

ORDER

AND NOW, this 8th day of July, 1977, it is ordered as

follows:

_X_ Order Affirmed. Case remanded to Common-

wealth Court for further proceedings.

—_— Order Reversed.

_— Order Vacated and lower court directed to pro-

ceed in accordance with opinion filed herewith.

__. Order Modified as set forth in opinion filed here-

with.

__. Order as set forth in opinion filed herewith.

___. Costs to be taxed as provided by Chapter 27 of the

Pa. R. A. P.

__. Costs to be taxed as provided in opinion filed

herewith.

By THe Court

/s/ SALLY Mrvos

Prothonotary

NOTE: Unless another date is hereinafter set forth, the

foregoing order was entered on the docket on the

date set forth above. Order entered: —

2a Appendix A

Supreme Court of Pennsylvania

WESTERN District

COMMONWEALTH OF

PENNSYLVANIA, DEPART- No. 64

MENT OF ENVIRON- March Term, 1976

MENTAL RESOURCES

V. Appeal from an

WHEELING-PITTSBURGH Order of the

STEEL CORPORATION, Commonwealth Court

Appellant at No. 529 C.D. 1975

OPINION OF THE COURT

Filed: July 8, 1977

O'Brien, J.

This appeal arises from the December 10, 1975, pretrial

order of Commonwealth Court, which precluded appellant,

Wheeling-Pittsburgh Steel Corporation (Wheeling), from

introducing evidence relevant to the issues of the validity of

an administrative order of the Pennsylvania Department of

Environmental Resources (DER) and the regulations upon

which the order was predicated. The order further denied

Wheeling a jury trial.

The facts surrounding this appeal are as follows. On

June 9, 1972, appellant requested from appellee a variance

from DER’s regulations. Title 25, Pennsylvania Code,

§123.13 and §123.41. Section 123.13 deals with the “Par-

ticulate Matter Emissions” and §123.41 deals with “Visible

Emissions.” Appellant's request concerned its steel-making

operation at its sinter plant in Monessen, Pennsylvania.

On September 25, 1972, pursuant to the variance

request of Wheeling, DER issued Administrative Order No.

Appendix A 3a

72-565-V, “Order Granting Temporary Variance.” The

order provided, inter alia:

“1. The granting of such a variance will not prevent

or interfere with attainment or maintenance of ambient

air standards within the time prescribed by the Federal

Clean Air Act and Rules and Regulations promulgated

thereunder, inasmuch as the variance period requested

extends only to April 30, 1973.

“2. The emissions from the source are likely to

comply with Section 123.13 inasmuch as, at the

expiration of the variance period, said einissions are not

likely to exceed 0.02 grains per dry standard cubic foot.

“3. The granting of the variance, as requested, is

reasonable inasmuch as the intermediate dates, and the

completion dates set forth in the petition and incor-

porated into this order, indicate that the company

intends to effect the control of the source as quickly as is

reasonably practicable.

“NOW, THEREFORE, this 25th day of September,

1972, the Department hereby grants a variance, as

requested in the petition (a copy of said petition is

attached hereto and marked Exhibit “A”), and further

orders that the Wheeling-Pittsburgh Steel Corporation,

its successors and assigns shall:

“(a) on or before April 30, 1973, complete the

implementation of the control plan set forth in

the aforementioned petition for a variance,

which plan is hereby incorporated herein and

made a part hereof;

“(b) on and after April 30, 1973, operate its

sintering operation located at its plant at

Monessen, Westmoreland County, Penn-

sylvania, in such a manner as to maintain the

emissions of particulate matter to within the

limits specified in Sections 123.1, 123.13 and

4a

Appendix A

123.41 of Chapter 123 of the Rules and

Regulations of the Department of En-

vironmental Resources; and,

“(c) submit bimonthly progress reports to the

Department of Environmental Resources,

commencing on October 31, 1972 and con-

tinuing thereafter until compliance with

paragraph (a) of this order is achieved.

“The foregoing variance is granted on condition that

paragraphs (a), (b) and (c) of the foregoing order are

complied with within the time specified for com-

pliance.

“Compliance with the foregoing order shall be obtained

in a manner that will not violate the Environmental

Protection Statutes and Rules and Regulations

promulgated thereunder.

“Nothing contained in this order shall be construed to

prevent or limit the application of the provisions of

Chapter 137 of the Rules and Regulations of the

Department of Environmental Resources which relates

to air pollution episodes.

“Any questions in connection with this action of the

Department of Environmental Resources, as well as all

progress reports, should be directed to Mr. James K.

Hambright, Bureau of Air Quality and Noise Control,

Department of Environmental Resources, Post Office

Box 2351, Harrisburg, Pennsylvania 17105.

“Sincerely yours,

“HOWARD W. CHAPMAN

“Associate Deputy Secretary for

“Air, Water and Community Protection

Appendix A 5a

“Attachments

“Notice of Appeal

“Rules of Practice and Procedure

“Air Pollution Control Act as Amended

“Rules & Regulations of the Department

of Environmental Resources

“Exhibit “A” - Petition for Variance”

The above order granted Wheeling a variance from the

enforcement of DER regulations concerning particulate and

visible emission from its Monessen plant until April 30, 1973.

Thereafter the Monessen plant would be required to comply

with all DER regulations pertaining to particulate and visible

emissions. Wheeling did not appeal the September 25, 1972

variance order to the Environmental Hearing Board.'

On April 15, 1975, DER filed a “Petition for Enforce-

ment of Administrative Order” in the Commonwealth

Court. The above petition sought compliance with the

administrative order of September 25, 1972.

Wheeling filed an answer and new matter, which

alleged that the DER regulations were invalid and unen-

forceable. Further, Wheeling sought a declaratory judgment

concerning the validity of the regulations and also demand-

ed a jury trial.

The Commonwealth Court, per President Judge

Bowman, ordered the parties to brief the following issues:

“(a) May defendant in this proceedings attack DER

Regulations 123.13 and 123.41 as invalid and unen-

forceable;

‘See §6 of the Air Pollution Control Act, the Act of January 8, 1960,

1. 2119, as amended, 35 P.S. §4006, and the Administrative Code of

1929. Act of April 9, 1929, P.L. 177, 71 P.S. $510, et seq., which provide for

wn appeal to the Environmental Hearing Board from DER orders. The

procedures for perfecting an appeal are set forth in Chapter 21 of DER's

rules and regulations, 25 Pa. Code §21.1, et seq. and governed by the

Administrative Agency Law, 71 P.S. §1710.1, et seq.

6a Appendix A

“(b) May defendant in this proceedings attack the

DER order of September 25, 1972 (Order No. 72-565V )

as invalid and unenforceable;

“(c) Is defendant, as a matter of law, entitled to a

jury trial in this proceedings (i) by reason of the nature

of the proceedings itself, or (ii) by reason of defendant

invoking declaratory judgment relief in its answer to the

petition for enforcement.”

On December 10, 1975, Commonwealth Court denied

Wheeling the right to introduce evidence concerning the

issues of the validity of the September 25, 1972 variance, and

of the regulations themselves; in addition, Commonwealth

Court denied Wheeling a right to a jury trial.

On December 29, 1975, Wheeling filed an appeal to this

Court from the December 10 order of Commonwealth

Court. On December 30, 1975, Wheeling filed a petition with

Commonwealth Court seeking a certification that the issues

involved controlling questions of law and that a prompt

determination of these issues would materially advance the

disposition of the instant action. On January 7, 1976, the

Commonwealth Court certified its order to this Court as

involving controlling questions of law.

On January 28, 1976, DER filed a motion to quash the

appeal. DEK alleged that the December 10 order was not

“tinal” and no appeal of right existed. DER further alleged

that the issues involved were not “controlling” and,

therefore, there was an improper certification by Com-

monwealth Court. DER also alleged that if the order was not

a “final” order, Wheeling had not filed a petition for

allowance of appeal with this Court. On February 4, 1976,

Wheeling filed an answer to the motion to quash. On

February 27, 1976, this Court directed that the motion to

quash be heard at the time of argument.

Appendix A va

I. MOTION TO QUASH

A. APPEALABILITY OF THE ORDER PRECLUDING

ATTACK ON THE VALIDITY OF THE AD-

MINISTRATIVE ORDER AND DER

REGULATIONS.

DER argues that the December 10 order of Com-

monwealth Court is not a final order of that court and,

therefore, Wheeling does not have a right of direct appeal to

this Court. We do not agree. Section 203 of the Appellate

Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No.

233, Art. Il, §203, provides:

“... Appeals from the Commonwealth Court

“The Supreme Court shall have exclusive jurisdic-

tion of appeals from all final orders of the Com-

monwealth Court entered in any matter which was

originally commenced in said court and which does not

constitute an appeal from another court, an ad-

ministrative agency or a justice of the peace. Any final

order of the Commonwealth Court entered in any

appeal from a decision of the Board of Finance and

Revenue shall be appealable to the Supreme Court, as

of right, under this section.”

The basis of this litigation is a petition to enforce an

adininistrative order originally filed in Commonwealth

Court. The gravamen of argument is whether the order of

Commonwealth Court, limiting Wheeling’s right to in-

troduce evidence as to the validity of the variance order and

the regulations, constitutes a final order for purposes of

appellate review.

In Posternack v. Am. Cas. Co. of Reading, 421 Pa. 21,

23-24, 218 A.2d 350 (1966), this court determined that a

pretrial order denying a party leave to amend an answer so

as to assert a new affirmative defense constituted a “final”

Sa Appendix A

order for purposes of appeal. In Posternack, this Court, per

Mr. Justice (now Chief Justice) Eagen, stated:

“ .. The order is not interlocutory, and the motion to

quash will be overruled. The new defense proposed is

affirmative in nature and must be pleaded, otherwise it

is waived. See, Pa.R.C.P. 1030, 1032, and Lang v. Recht,

171 Pa. Superior Ct. 605, 91 A.2d 313 (1952). The order

involved effectively precludes proof at trial of what

might possibly be a complete defense to the cause sued

upon. As to this defense, at least, the order appealed

from puts the defendant ‘out of court’. It is, therefore, an

appealable order.” See Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949) and Bell v. Benefic.

Consumer Co., 465 Pa. 225, 348 A.2d 734 (1975).

In the instant case, the order of Commonwealth Court

precluded Wheeling from presenting its “affirmative

defenses” concerning the validity of the September 25, 1972

order or of DER air pollution regulations.

The refusal to allow evidence of a “possibly” meritous

defense effectively puts Wheeling out of court and,

therefore, the order is “final” for appeal purposes.

B. APPEALABILITY OF THE ORDER CONCERN-

ING THE RIGHT TO TRIAL BY JURY.

DER next argues that the order denying Wheeling the

right to trial by jury is not a final order. We agree. In T.C.R.

Realty, Inc. v. Cox, _ eee A.2d (filed April 28,

1977). this court defined a “final order” as follows:

. In ascertaining what is a ‘final order, we have

looked beyond the technical effect of the adjudication

to its practical ramifications. Bell v. Benefic. Consumer

Discount Company, 465 Pa. 225, 348 A.2d 734 (1975).

We have variously defined a final order as one which

ends the litigation, or alternatively disposes of the entire

case. Piltzer v. Independence F.S. & L. Assn., 456 Pa.

=. ee eee emo:

POA LOBOS sc

Appendix A Ya

402, 319 A.2d 677 (1974); James Banda, Inc. v. Va.

Manor Apts., Inc., 451 Pa. 408 303 A.2d 925 (1973).

Conversely phrased, an order is interlocutory and not

final unless it effectively puts the litigant ‘out of court.’

Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246

A.2d 353, 355 (1968).”

In the instant case, the denial of the right to trial by jury

does not put the litigant “out of court,” and therefore the

order is not final for appeal purposes.

Wheeling, in rebuttal, argues that if the order concern-

ing the right to trial by jury is not a “final order” then this

court should accept the certification of Commonwealth

Court that the issue presents a “controlling issue of law.” We

do not reach the merits of this argument because of

Wheeling-Pittsburgh’s failure to comply with §501(b) of the

Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L.

673, No. 233, art. V, §501, 17 P.S. §211.501.

Section 501(b) provides:

“(b) Discretionary Allowance of Appeals. - Whena

court or administrative agency, in making an in-

terlocutory order in a matter in which its final order

would be within the jurisdiction of an appellate court,

shall be of the opinion that such order involves a

controlling question of law as to which there is

substantial ground for difference of opinion and that an

immediate appeal from the order may materially

advance the ultimate termination of the matter, it shall

so state in such order. The appellate court may

thereupon, in its discretion, permit an appeal to be taken

from such order. A petition for an allowance of an

appeal under this subsection shall not stay the

proceedings before the lower court or administrative

agency, unless the lower court or agency or the

appellate court or a judge thereof shall so order.”

CNN nenrn svi SSS

10a Appendix A

Wheeling did not file a petition for allowance of appeal

in this Court after the certification by the Commonwealth

Court. Pa. RK. A. P. 1102, however, permits this Court to treat

an “improvidently taken” appeal under Pa. R. A. P. 1101 asa

petition for allowance of appeal. Treating the instant appeal,

concerning the right to trial jury, as a petition for allowance

of appeal, such petition is denied.’

Il. MERITS OF THE APPEAL

Appellant argues that Commonwealth Court erred in

prohibiting an attack on the validity of the September 25,

1972. order and DER regulations. We do not agree. On

December 10, 1975, Commonwealth Court determined that

“Wheeling ... shall not have the right to introduce evidence

relevant to the issues of the validity of the order in question

or they DER regulations upon which it was predicated. ...”

Wheeling did not appeal the administrative order of

September 25, 1972. This order granted a variance to

Wheeling until April 30, 1973, and further required

“Rule LLOL(a) Scope of rule. This rule applies to any appeal to the

Supreme Court from an order of the Commonwealth Court entered in:

(1) Any matter which was originally commenced in the

(Comunonw ealth Court and which does not constitute an appeal from

another court, an administrative agency or a district justice of the

peace.

(2) Any appeal from a decision of the Board of Finance and

Revenue”

“Rule 1102. huprovident Appeals. If an appeal is improvidently taken

to the Supreme Court under Rule 1101 (appeals as of right from the

Conunonwealth Court) in a case where the proper mode of review is

by petition for allowance of appeal under this chapter, this alone shall

not be a ground for dismissal, but the papers whereon the appeal was

taken shall be regarded and acted on as a petition for allowance of

appeal and as if duly filed at the time the appeal was taken.

Note: Based on Section 204(b) of the Appellate Court J urisdic-

tion Act of 1970 (17 P.S.§211.204(b)) and makes no change in

substance. In a similar fashion, any motion to quash the appeal

would be regarded as 2 brief in opposition to the petition under

Rule 1116 (brief in opposition to petition).”

Appendix A lla

compliance after April 30 with the particulate matter and

visible emission regulation.®

In Commonwealth v. Derry Tp., 466 Pa. 31, 351 A.2d

606, 610 (1976), this court, in considering a similar failure to

use statutory appeal procedures precluding collateral attack

on the validity of the questioned order and underlying

regulations, noted:

“... No appeal was taken by Derry to the Environmen-

tal Hearing Board. The failure to appeal made that

order final and foreclosed any attack on its content or

validity in the enforcement proceeding.” (Emphasis

added.)

In Com. ex rel. Dunson v. Erie Ins. Exch., 465 Pa. 240,

245, 348 A.2d 742 (1976), we stated:

“Moreover, it is well settled that ‘where statutory

remedies are provided, the procedure prescribed by the

statute must be strictly pursued, to the exclusion of other

methods of redress [cites omitted]. This is particularly

true of special statutory appeals from the action of

administrative bodies. White et al. v. Old York Road

Club et al., 318 Pa. 346, 178 A.3; Taylor v. Moore, 303 Pa.

469, 154 A. 799; Ermine v. Frankel et al., 322 Pa. 70, 185

A. 269. [Emphasis supplied.] Colteryahn Sanitary

Dairy v. Milk Control Commission of Pennsylvania, 332

Pa. 15, 23-24, 1 A.2d 775, 780 (1938). Cf. Pennsylvania

Life Insurance Company v. Pennsylvania National Life

Insurance Company [417 Pa. 168, 208 A.2d 780 (1965) ].

It follows that the Exchange, having failed to appeal

from the Commission's adjudication and order of April

14, 1972, is now precluded from contesting the merits of

the Commission's decision in subsequent enforcement

proceedings.”

‘The record is clear that Wheeling was advised of its appeal rights but

chose not to exercise those rights. See also Footnote 1, supra.

12a Appendix A

In the instant case, Wheeling was notified of its right to

appeal the September 25, 1972 order. No appeal was taken;

therefore, Wheeling is precluded from attacking the validity

or content of either the order of the underlying regulations in

the instant enforcement proceeding.

The order of the Commonwealth Court is affirmed, and

the case remanded to that court for further proceedings. The

motion to quash is granted in part and denied in part.

Former Chief Justice Jones took no part in the

consideration or decision of this case.

Mr. Justice Nix took no part in the consideration or

decision of this case.

Mir. Justice Pomeroy filed a concurring and dissenting

opinion.

IN THE 13a

Supreme Court of Pennsylvania

WESTERN District

COMMONWEALTH OF

PENNSYLVANIA, DEPART-

MENT OF ENVIRONMENTAL

RESOURCES

Vv.

WHEELING-PITTSBURGH

STEEL CORPORATION,

Appellant

No. 64

March Term, 1976

Appeal from an

Order of the

Commonwealth Court

at No. 529 C.D. 1975

CONCURRING AND DISSENTING OPINION

Fitep: July 8, 1977

Pomeroy, ].,

‘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

SE

l4a Concurring and Dissenting Opinion

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 trail 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. Gibbs, 383 U.S. 715, 16

L..Kd.2d 218 (1966).

For the reasons above indicated, | dissent from the

Court's partial grant of appellee’s motion to quash. In all

other respects, | 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, | 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,

US. : L.Ed.2d , 21 Cr.L. 3082 (decided June 9, 1977).

APPENDIX B 15a

IN THE

Supreme Court of Pennsylvania

COMMONWEALTH OF

PENNSYLVANIA, DEPART-

MENT OF ENVIRON-

MENTAL RESOURCES,

Petitioner

V.

WHEELING-PITTSBURGH

STEEL CORPORATION,

Respondent

NO. 529

C. D. 1975

Before: HONORABLE JAMES S. BOWMAN,

President Judge

HONORABLE JAMES C. CRUMLISH, JR.,

Judge

HONORABLE HARRY A. KRAMER, Judge

HONORABLE ROY WILKINSON, JR., Judge

HONORABLE GLENN E. MENCER, Judge

HONORABLE THEODORE O. ROGERS, Judge

HONORABLE GENEVIEVE BLATT, Judge

Submitted on Briefs

OPINION BY PRESIDENT JUDGE BOWMAN

Filed December 10, 1975

This matter is before us on a petition for enforcement of an

administrative order brought by Department of En-

vironmental Resources (DER).

In June 1972, respondent, Wheeling-Pittsburgh Steel

Corporation, applied for a variance from minimum

standards relating to particulate matter emissions into the

16a Appendix B

atmosphere as established by DER regulations, 25 Pa. Code

§§123.13,123.41. The variance sought an extension until April

30, 1973, of the time for compliance with the standards set in

the aforementioned regulations as applied to respondent's

sintering plant in Monessen, Westmoreland County.

As aresult of the variance request, DER issued an order

on September 25, 1972, granting respondent a variance from

the required standards until April 30, 1973. Respondent did

not appeal this order.

On April 15, 1975, DER initiated enforcement

proceedings in this Court pursuant to the Air Pollution

Control Act, Act of January 8, 1960, P. L. (1959) 2119, as

amended, 35 P. S. §4010, alleging that respondent had not

complied with the order.

Respondent filed an answer containing new matter to

the DER petition, which new matter raises several legal

issues requiring resolution prior to evidentiary hearings on

the merits of the petition. Those issues as framed by our

Order of July 1, 1975, follow:

(a) May defendant (respondent herein) in_ this

proceedings attack DER Regulations 123.13 and 123.41 as

invalid and unenforceable;

(b) May defendant in this proceedings attack the DER

order of September 25, 1972, as invalid and unenforceable;

(c) Is defendant, as a matter of law, entitled to a jury

trial in this proceedings (i) by reason of the nature of the

proceedings itself, or (ii) by reason of defendant invoking

declaratory judgment relief in its answer to the petition for

enforcement.

As to the issues of whether respondent can here attack

DER Regulations 123.13 and 123.41 or its order of

September 25, 1972, respondent has dealt with bothi issues in

eat ne.

Appendix B 17a

a single argument, and DER has used similar rationale and

authority in supporting its position on these two questions. In

view of the parties’ treatment of these two issues, we will

dispose of them together.

Respondent has cited the case of Department of

Environmental Resources v. Pennsylvania Power Company,

12 Pa. Commonwealth Ct. 212, 316 A.2d 96 (1974), aff'd,

Pa. , 337 A.2d 823 (1975), which

recognized impossibility of compliance as a defense in a

contempt proceedings resulting from an unappealed DER

order. At this point, however, we are concerned only with

the validity of the order and regulations involved, not

compliance. Other language in our opinion in that case is

most appropriate, however, to the issue at hand:

“A review of that procedure causes us to be very critical

of the failure of PPC to contest the possibility of

performance by way of an appeal from any of the DER

orders.... The failure to take the administrative

procedural protections available to a citizen from an

order of a regulatory agency is not to be condoned.”

Department of Environmental Resources v. Penn-

sylvania Power Company, supra, 12, Pa. Com-

monwealth Ct. at 221, 316 A.2d at 101.

Respondent also stresses in its argument that it was not

“aggrieved” by the order of September 25, 1972, because at

that time it did not believe compliance would present any

difficulty; therefore, respondent contends that no reason for

an appeal was then indicated.

We disagree. As a result of the DER order of September

25, 1972, respondent was “aggrieved” within the meaning of

the Act, 35 P. S. $4004(4.1). A party is “aggrieved” when

there has been an “imposition upon a party of a burden or

obligation”. Black’s Law Dictionary 87 (rev. 4th ed. 1968).

Here, respondent had an obligation to comply with DER’s

~ BEST COPY AVAILABLE

18a Appendix B

regulations by April, 1973, and to do so, obviously placed a

burden upon respondent, which arose as of September 25,

1972.

Respondent further argues that since the Act employs

the words “may appeal”, it is not mandatory to follow that

procedure. We agree that an aggrieved party has no duty to

appeal but disagree that upon failure to do so, the party so

aggrieved preserves to some indefinite future time in some

indefinite future proceedings the right to contest an

unappealed order. ‘To conclude otherwise, would postpone

indefinitely the vitality of administrative orders and

frustrate the orderly operation of administrative law. This

principle was expressed in Philadelphia v. Sam Bobman

Department Store Company, 189 Pa. Superior Ct. 72, 78, 149

A.2d 518, 521 (1959), in which Judge Woodside stated:

“It is settled both under common law and statute

that where an act creates a right or liability or imposes a

duty and prescribes a particular remedy for its

enforcement such remedy is exclusive and must be

strictly pursued. This means that one who fails to

exhaust his statutory remedies may not thereafter raise

an issue Which could have and should have been raised

in the proceeding afforded by his statutory remedy.

* .. This is particularly true of special statutory

appeals from the action of administrative bodies.”

(Citations omitted.)

Similarly, in St. Joe Minerals Corporaiton v. Goddard,

14 Pa. Commonwealth Ct. 624, 324 A.2d 800 (1974), in the

context of the availability of equity jurisdiction to attack an

adininistrative order, we found the right of appeal by the

person against whom a DER order was issued constituted an

adequate remedy at law, thus echoing the long standing

judicial view that administrative resolution of technical

—

Appendix B 19a

issues followed by Environmental Hearing Board review

and judicial review thereafter is the preferred and proper

procedure. Here, such preferred procedure would likewise

be frustrated.

In Standard Lime and Refractories Company v.

Department of Environmental Resources, 2 Pa. Com-

monwealth Ct. 434, 279 A.2d 383 (1971), a case involving the

same appeal provisions as applicable here, we held that a

party who had not timely appealed a compliance order

could, nevertheless, seek a hearing on the issue of com-

pliance, but could not at such hearing question the validity of

the abatement order; again denying the right to collaterally

attack an order from which no appeal had been taken.

Cases involving other administrative agencies of this

Commonwealth have long espoused this policy. Com-

monwealth v. Lentz, 353 Pa. 98, 44 A.2d 291 (1945); Milk

Maid Dairy Products, Inc. v. Pennsylvania Milk Control

Commission, 190 Pa. Superior Ct. 410, 154 A.2d 274 (1959)!

We conclude that respondent in this proceedings has no

right to attack the DER order in question nor the validity of

the regulations upon which it was predicated.

The question of respondent's right to trial by jury in this

enforcement proceedings necessarily emanates from Article

1, Section 6, of the Pennsylvania Constitution, which

provides:

“Trial by jury shall be as heretofore, and the right

thereof remain inviolate.”

Our Supreme Court long has held that this language

exists exclusively for the purpose of preserving jury trials as

‘Also see Erie Human Relations Commission v. Erie Insurance

Exchange, 12 Pa. Commonwealth Ct. 267, 315 A.2d 663 (1974), recently

affirmed by the Supreme Court of Pennsylvania (No. 27 March Term,

1975, opinion filed November 26, 1975).

20a Appendix B

provided by common law.? Van Swartow v. The Com-

monwealth, 24 Pa. 131 (1854). It was not intended that the

Constitution extend common law jury trial. Schwab v.

Miller, 302 Pa. 507, 153 A. 731 (1931).

In an administrative matter, the dismissal of a teacher,

the Supreme Court refused a demand for a jury trial based

on the proposition that no right to jury trial existed prior to

the Constitution, so none existed when the relevant statute

did not so provide. Watson Appeal, 377 Pa. 495, 105 A.2d 576

(1954). cert. denied, 348 U.S. 879 (1954), rehearing denied,

348 U.S. 922 (1955). The Superior Court utilized similar

reasoning in Pennsylvania Public Utility Commission v. W.

J. Dillner Transjer Company, 191 Pa. Superior Ct. 136, 155

A.2d 429 (1959), involving a cease and desist order. Even

where a civil penalty was involved, the court reasoned that

since the matters entrusted to the Public Utility Commission

were nonexistent at the adoption of the Constitution, no right

to jury trial ever existed which the Constitution could

preserve. Such is the situation in this present case.

In short, we hold, consistent with earlier Pennsylvania

decisions, that the constitutional right to a jury trial does not

extend to respondent in this proceedings, which are wholly a

creature of recent statutory law.

Nor do we believe that respondent creates in its favor a

right to a jury tria! simply because it seeks declaratory relief

in its answer te DER’s petition for enforcement. To allow a

respondent to alter the essential nature of the proceedings

and thereby obtain a jury trial is illogical and would create an

anomalous situation detrimental to the orderly operation of

administrative law.

Furthermore, the Uniform Declaratory Judgments Act,

Act of June 18, 1923, P. L. 840, as amended, 12 P. S. §836,

“Article IX. Section 6, of the Constitution of 1838 contained identical

langnade.

Appendix B 2la

forecloses its application in whole or in part to these

proceedings. That statute provides:

“Where, however, a statute provides a special form of

remedy for a specific type of case, that statutory

remedy must be followed... .”

The Act with which we are here concerned provides a clear

specific form of remedy for those affected by DER orders or

regulations. See Friestad v. Travelers Indemnity Company,

452 Pa. 417, 306 A.2d 295 (1973), and this Court's refusal to

allow declaratory relief to be the vehicle for bypassing

administrative procedures in Gold v. Department of Public

Instruction, 16 Pa. Commonwealth Ct. 247, 328 A.2d 559

(1974). Respondent is not entitled to a trial by jury in this

proceedings.

ORDER

Now, December 10, 1975, in further proceedings upon

the Commonwealth's petition for enforcement of its order of

September 25, 1972, respondent shall not have the right to

introduce evidence relevant to the issues of the validity of

the order in question or the DER regulations upon which it

was predicated; and respondent is denied a jury trial in this

proceedings.

/s/ James S. BowMAN

James S. Bowman, President Judge

CERTIFICATE OF SERVICE

1, Pau. A. MANION, in accordance with Rule 33(1) of the

Rules of the Supreme Court of the United States, hereby

certify that | have served the foregoing Petition for Writ of

Certiorari to the Supreme Court of Pennsylvania on all

parties required to be served by mailing three copies thereto

to Thomas M. Burke, Esquire, Assistant Attorney General,

Department of Environmental Resources, 1200 Kossman

Building, 100 Forbes Avenue, Pittsburgh, Pennsylvania

15222. Attorney for Respondent, by first class mail, postage

prepaid, this 5th day of October, 1977.

/s/ Paut A. MANION