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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 969

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2680%3A1. Public record. Not legal advice.