Jurisdictional Statement — Wyant v. Pennsylvania Department of Environmental Resources

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD: COPY

AT THE TIME OF FILMING, IF AND WHEN A

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vu_. vime Court, U.S.

‘ii; n =

87-340~ | |

a eee UG 24 1987

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED STAT&S$ax

TERM, 1987

NO.

GERALD W. WYANT,

APPELLANT

Vv.

| COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES, AND BOROUGH OF

NEWRY,

APPELLEES

ON APPEAL FROM THE SUPREME COURT OF PENN-

SYLVANIA

JURISDICTIONAL STATEMENT

| J. Randall Miller

Mellon Bank Building

1206 llth Avenue

Altoona, Pennsylvania, 16601

Telephone: (814) 943-1462

,

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QUESTIONS PRESENTED] BY THE APPEAL

1. Does ownership, possession and use

of land upon which a. neighboring

municipality resolves to construc t,-a'

sewage treatment plant ws vari an interest

of constitutional proportions in the

outcome of an. admin istrative adj udi«

cation, enforceable by state order: |

directing implementation, in which

the resolution is approved, if the land-

owner will be precluded under state

law from seeking to raise elsewhere any

legal objections which he had standing

to raise in the adj udication itself?

2. With respect to such! an interest,

is statutory constructive notice of the

adjudication by official; publication

that identifies neither the owner nor

the location of the land] the best notice

practicable under the circumstances, and

reasonable under the Due} Process Clause ,

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of the Fourteenth Amendment of the

!

United States Constitution?

3. When the notice that is due to a

person who is EOpeEsy a party to an

adjudication is not given and he there-

fore is not heave therein, can he be

bound by an Sutcome that purports to

deprive him of entitlements respecting

property interests that are grounded in

state law?

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TABLE OF CONTENTS

Reports of the Opinions Delivered

DOLOWs oo bth bn ds ebbeendaa ce ceeukec cl

Grounds on Which this Court's

Jurisdiction is eg Se

Constitutional Provisions, Statutes,

Regulations and Ordinances

Involved. obs escsncu@ene rer euelael

Statement of the ee Pe er ee se)

Reasons for Consideration of Appeal....30

i .

APPONELS 00s cechocesseeudnuuie cele

4

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TABLE OF CITATIONS

Ancient E tian Arabic Order

ot Nobles vF the M Stic Shrine

Vv. Michaux, 279 U. - 737,

GO S.Ct. 487, 73 L.Ed. 931 (1929)......36

Board of Regents v. sean 408

U.S. 3964, 74 L.Ed. 2d 548,

92 S.Ct. 2701 (1972).. PRenke ses eashes soit

Commonwealth of Pennsylvania,

Department of Insurance Vv.

Pennsylvania coal Mining Assn.,

a. Ww . b | .

745 (1976) cccccccccccccdccccccccccccccede

|

Goldberg v. Kell 397 U.S.

754, 98 S.Ct. Torts 25 L.Ed.

2d 287 | SecOgist) sparen

Goss v. Lopez, 419 U.S.'565,

55 5.ct. 729, 42 L.Ed. 2d

725 PE cc wdadhsdeecccccecceechS

Hardee's Food Systems, Inc., V-

Commonwealth of Pennsylvania,

See eT oO ae Oo Tl

a. , . 1981). ccccedd

Logan v. Zimmerman Brush Co.,

+ EGs 5;

102 S.Ct. 1148 (1982). cccccccccccscccchd

Memphis Light, Gas & Water

Div. v. cratt, 430 U.5. Ll, 90

SeGte 1554. C1978) eeeeeeweeeeece ere esse 2G5

Mullane ve Central oe ee Bank

rus oGte

oo2, 94 Le “ra. 865 MEE, betcceeseaahelle

‘

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THE OPINIONS BELOW

The Environmental Hearing Board of

Pennsylvania entered a memorandum opinion

and order adverse to the appellant on

November 6, 1985.. The Commonwealth Court

of Pennsylvania entered an interim opinion

and order on Janu ary 2, 1986, and a final

memorandum opinion and order on January 7,

1987. The Pennsylvania Supreme Court

denied further review without opinion. All

of these decisions were rendered on the

basis of the phentions. None of the opinions

‘rendered have been reported.

JURISDICTION

This is an appeal from an Order entered

May 27, 1987, by the Supreme Court of

Pennsylvania in Ho. 74 W.D. Allocatur

Docket, 1987, denying Gerald Wyant's

Petition for Allowance of Appeal of an

Order entered Jaqueny 7, 1987, by the Common-

wealth Court of Pennsylvania in No. 3247

C.D. 1985, which |in turn affirmed on

Petition for Review an Order entered

November 6, 1985, by the Environmental

Hearing Board of Pennsylvania in E.H.B.

No. 84-422-M. The original order of the

Board denied Gerald Wyant leave to proceed

with administrative appeal of an adjudi-

cation made by the Pennsylvania Department

of Environmental Resources under the Penn-

sylvania Sewage Facilities Act.

Rehearing was neither sought nor

granted. Notice of appeal was filed in the

Supreme Court of Pennsylvania by first-

class United States mail posted August 4,

1987. A copy was also naihed to the Common-

wealth Court on the same day.

This appeal is taken Laaee 28 U.S.C.

§1257(2). Gerald Wyant contends that the

Pennsylvania Sewage Facilities Act and other

statutes and regulations were construed or

applied below in a manner bain deprived him

of procedural due process guarantees of

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reasonable notice and opportunity to be

heard, in violation of the Fourteenth

Amendment of the United States Constitution.

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS AND ORDINANCES INVOLVED

Constitutional Provisions

U.S. Const. Amendment XIV, Section l

Pa. Const., Art. I:

* Section l

Section ll

Section 27

Statutes of Pennsylvania

Administrative Agency Law, 2 Pa.C.S.

6101 et seq:

Section 101, 2 Pa.C.S. 6101

Section 504, 2 Pa.C.S. 8504

Section 505, 2 Pa.C.S. 8505

Section 702, 2 Pa.C.S. 6702

Administrative Code of 1929, April 9,

P.L. 177, art. XIX-A, §1921-A, added

1970, Dec. 3, P.L. 834, No. 275, 620,

71 P.S. 6510-21

Borough Code, Act of Feb. 1, 1966, P.L.

(1965 » No. 581,53 P.S. 845101

et seq:

ection 2009, 53 P.S. 847009

Section 2010, 53 P.S. 8647010

Section 2022, 53 P.S. 647022

Commonwealth Documents Law, 45 Pa. C.S.

8101 et seq:

Section 904, 45 Pa.C.S. 6904

Section 906, 45 Pa.C.S. 8906

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Eminent Domain Code, Act of June 22, 1964,

aRae 26 Sess., P.L. 84,,as amended, Section

26 P.S..81-406 |

Sewage Facilities het, Jen. 24, 1966,

P.L. (1965) ASS5, as amended, 35 P.S.

6750.1 et se

Section 35 iF 6750.5

Section 10, 35 P.S. 6750.10

Section 16, added July 22, 1974, P.L.

621 No. 208, 89, 35 ? -S. 8750. 16

Statutory Construction Act, Section 922,

l Pa.C.S. 61922

Administrative Regulations

25 Pa. Code §21.36 |

25 Pa. Code 621.53

Ordinances

Borough of Newry, Resolution No. 130,

4 with attachments on November 14,

1983.

STATEMENT OF THE CASE

On November 14, 1983, the Borough of

Newry, a municipal corporation of the

Commonwealth of Pennsylvania, adopted

Borough Resolution No. 130-1983. A form

resolution prepared for municipalities

like Newry by the Department of Environ~

mental Resources of the | Commonwealth of

Pennsylvania, this measure adopted and

resolved to implement, after its submission

to the Department for approval, an amend-

ment or revision of Newry's official

sewage facilities plan. The plan amend-

ment and supporting documents, referred

* to on the face of Resolution No. 130-

1983 as attachments thereto, provided for

the construction and operation of a

sewage treatment facility, consisting of

several aerated lagoons and a sedimentation

pond, upon sixteen of the forty-four acres

of land owned, farmed and inhabited by

Gerald Wyant in Blair Township, an ad-

joining political subdivision of the

Commonwealth.

In Pennsylvania, every municipality

is required by statute to develop, adopt,

and implement an official plan for scurge-

services to areas within its jurisdiction.

Pennsylvania Sewage Facilities Act, 1966,

tt es

Jan. 24, P.L. (1985) 1535, No. 537,

65, 35 P.S. 8750.5. The Department of

Environmental Resources, has the power to

approve or disapprove of such plans and

to order their submission ot implementation.

Id., 810, 35 P.S. 8750.10.

The Commonwealth of Pennsylvania em-

powers its boroughs to condemn land beyond

the territorial limits of their sovereignty

for the purpose of constructing sewage

treatment plants. Borough Code, Act of

February 1, 1966, P.L. (1965) __, No.

581, 53 P.S. 62009, 53 P.S. 847009. But

no borough may do so before all plans and

specifications have been submitted to the

Department of Enviconmental Resources

and approved in accordance with existing

law. Id., 862022, 53 P.S. 847022. And

the Borough Code alsc provides, in section

2010 thereof, 53 P.S. 847010, that no

ordinance for construction of a sewage '

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treatment plant! beyond the borough

limits may be adopted without prior

publication in a newspaper of general

circulation and personal service of the

proposed ordinance upon affected land-

owners like aaah wore Wyant at least ten

days before otthcial action thereon.

Resolution No. 130-1983 was not served

upon Gerald Wyant or published in a

local newspaper’ at any time before or

after its adoption. Nor were any other

means, formal or informal, attempted to

give him actual personal notice of the

Borough's intentions. In fact, he was

given no notice other than such "con-

structive" notice as may he have re-

ceived through jthe official publication

in the Pennsylvania Bulletin, on

December 10, 1983, that Department action

on the proposed plan revision was pending,

and a subsequent publication in the

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Pennsylvania Bulletin, on January 14,

1984, that the Departaent had approved

the revision. 13 Pa.B. J fa oie

188. Neither of these brief notices

identified Gerald Wyant himself, the site

of the proposed facility in Blair Township

or the legal steps available to him. In

any event, and not ecibeviviaady. the

notices never came to his attention. -

The Pennsylvania Sewage Facilities

Act provides that any jaction taken by

the Department of Environmental Resources

on a revision or amendment of an official

sewage facilities plan is taken subject

to the right of notice and appeal to

the Environmental Hearing Board of the

Commonwealth of Pennsylvania, an ad-

judicatory agency, pursuant to section

1921-A of the Pennsylyania Administrative —

Code of 1929, as amended, 71 P.S. 8510-21,

and the Pennsylvania Administrative '

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i ae

Agency Law, as amended, 2 Pa. C.&. 8

101 et seq. Sewage Facilities Act, 816,

35. B.S. 9750s16. |

In Pennsylvania, an order approving an

amendment or revision of an official

sewage plan is regarded as an adjudication -

a final order, decree, decision, deter-

mination or ruling by an agency affecting

personal or patient) rights, privileges,

immunities, duties, liabilities or ob-

ligations of any or all of the parties

to the proceeding - rather than as, for

example, a rulemaking or quasi-legislative

determination. The adversary hearings

conducted by the tivizouledeal Hearing

Board under the Administrative Agency

Law are quasi-judicial proceedings which

culminate in findings of fact and con-

clusions of law which are judicially

reviewable to determine whether they have

a basis in law and substantial evidence

developed on the record.

:

The time for taking an appeal to the

Environmental Hearing Board from a deter-

mination of ‘the Pennsylvania Department

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of Environmental Resources is not fixed

directly by statute. The section of the

Administrative Code of 1929 cited in

section 16 of the Pennsylvania Sewage

Facilities Act provides, in relevant part

as follows: |

{

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(c) Anything in law to the contrary

notwithstanding, any action of the

Department of Environmental Re-

sources may be taken initially with-

out regard to the Administrative

Agency Law, but no such action of

the department adversely affecting any

person shall not be final as to such

person until such person has had the

opportunity to appeal such action

to the Environmental Hearing Board;

provided, however, that any such

action shall be final as to any

person who has not perfected his

appeal in the manner hereinafter

specified.

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(d) Hearings of the Environmental

Hearing Board shall be conducted in

accordance with rules and regulations

adopted by the Environmental Quality

._Board and such rules and regulations

shall include time limits for the

taking of appeals, procedures for

the taking of appeals, locations at

which hearings shall be held and such

other rules and regulations as may

be deemed advisable by the Environ-

mental Quality Board.

saa |

Section 504 of the Administrative Agency

Law provides okdely that:

No adjudication of the Commonwealth

agency shall;be valid as to any party

unless he shall have been afforded

reasonable notice of a hearing and

an opport unity to be heard...

The sattiowns ecovluhine of the regu -

lations promulgated by the Environmental

Quality Board of the Commonwealth of

Pennsylvania yuboockinn the manner of

service of an adjudication by the Depart-

ment and the tine limits and procedures

for perfecting an appeal thereof are

found in Title 25 of the Penneyivenia

Code and are as' follows:

~§21.36. Publication of notice

Pub lication of notice of action

proposed action by the Department

or Board in the Pennsylvania

Bulletin shall constitute notice

to or service upon all persons,

except a party, effective as of

the date of publication.

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§21.52. Timeliness and perfection

(a) Except as specifically provided

in §21.53 of this title (relating

to appeal nunc pro tunc), juris-

diction of the Board shall not

attach to an appeal from an action

of the Department unless the appeal

is in writing and is filed with

the Board within 30 days after the

party appellant has received written

notice of such action or within 30

days after notice of such action has

been published in the Pennsylvania

Bulletin unless a different time is

provided by statute, and is perfected

in accordance with subsection (b).

§21.53 Appeal nunc pro tunc.

(a) The Board upon written request

and. for good cause ‘shown may grant

leave for the filing of an appeal

nunc pro tunc; the standards

applicable to what constitutes good

cause shall be the common law

standards applicable in analogous

cases in the Courts of. Common Pleas

of this Commonwealth.”

Gerald Wyant did not perfect an appeal

of the Department's approval of the

t

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Borough's plan revision to the Environ-

mental Hearing Board within 30 days of

January 14, 1984, the date of publication

in the Bulletin.| He had not yet dis-

covered that it had been sought or

granted. Subsequently, agents of the

‘Department and Borough entered upon his

land with backhoes and other heavy

equipment to excavate "test pits" and he

investigated.

The sewage treatment facility whose

construction was approved in the Depart-

ment's action will discharge treated

sewage wastewaters from a point source

on the southeastern corner of Gerald

Wyant's farm cute Poplar Run, a tri-

butary of the Frankstown Branch of the

Juniata River. — On March 24, 1984, notice

that the Borough had applied to the

Department for National Pollution Discharge

}

Elimination Permit No. PA 0081621-which

aan

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would identify the probable pollutants

to be discharged by the facility, set

effluent limitations for each pollutant,

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those limitations-was published in the

and authorize pollutant discharges within

Pennsylvania Bulletin at 14 Pa.B 1030;

on July 7, 1984, hotice that the Borough

had applied to the Department for Water

Quality Management Permit No. 9784403-

which would approve the,detailed design

specifications and siibbcektine pro-

cedures for the proposed facility-was

published in the Pennsylvania Bulletin

at 14 Pa.B. 2342. Both of these app-

lications were made pursuant to the

requirements of the Pennsylvania Clean

Streams Law, Act of June 22, 19375 Pela

1937, No. 394, as amended, 35 P.S. 8

=

691.1 et seq.

Notice that the Department had

}

approved both of the permit applications

submitted under the Clean Streams Law

was published in the Pennsylvania Bulletin

on November 17, 1984, at 14 Pa.B. 4197.

On December 17, 1984, Gerald Wyant filed

a document with the Environmental Hearing

Board that consisted of 130 numbered

paragraphs, with a pray er for relief,

styled his: (1) notice of appeal from

the issuance of NPDES Permit No. PA

0081621 to the Borough of Newry under the

Clean Streams Act; (2) notice of appeal

from the issuance of Permit No. 97 84403

to the Borough of Newry under the Clean

Streams Act; (3) request for leave to

appeal, nunc pro'tunc, the planning

approval* granted to the Borough of

Newry under the Sewage Facilities Act;

and (4) motion to consolidate proceedings

in the matters above. The appeal was

‘ subsequently perfected and docketed as

EHB No. 84-422-M:

Ihe somavhat misleadirg'tem "p i approval"“diich supgests

pexmission to begin development of a » rather than a go0-

ahead fi already complete~is the Department's texm,

sal te en lita tee hah eee” de cue ct

} 19x

The authority to take the actions

challenged by Gerald Wyant in the fore-

going pleading is delegated to the

Department of Environmental Resources of

the Commonwealth of Pennsylvania in

Section 402 of the Federal Water Pollution

Control Act, as amended, 33 U.S.C. 81342.

This authority is limited by 33 U.S.C.

61288, in particular, which conditions

the issuance by states of NPDES permits

on the confirmity of the proposed projects

with areawide waste-treatment plans

prepared and approved pursuant to the

detailed requirements of that section,

and by 33 U.S.C. §1442(b)(1)(A), which

requires that any NPDES | permit issued

must apply and ensure compliance with

any applicable requirements of 33 U.S.C.

§1312 (water-quality based effluent

limitations), §1313 (id.)5 §1314

(technologically-based effluent limitations);

§1316 and § 1317 (toxic pollutants and

pretreatment standards); and § 1343.

The overall scheme of the FWPCA is

administered in Pennsylvania under two

interrelated and partially overlapping

Statutes: whether a proposed sewage

project is consistent with a compre-

hensive plan for water quality management

in the watershed as a whole, for example,

is an issue ordinarily determined in the

proceeding under ‘the Sewage Facilities

Act, whereas the adequacy of effluent

limitations to conserve the protected

useS of the stream, or the adequacy

of the facility as designed to achieve

compliance with the effluent limitations

fixed, will be determined in the pro-

ceedings under the Clean Streams Law.

The pleading filed by Gerald Wyant

on December 17, 1984 challenged the legality

of the actions taken by the Department on

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several factual grounds especially relevant

under the standards and requirements of both |

these two interrelated statutes; but, in

addition, he raised objections to the

siting and design of the project under

certain other environmental statutes

concerned with the nee ERY FP of the

state's prime farmlands and the

management of construction within the 100-

year floodplains of Pennsylvania's

waterways, issues which the Department

was bound to consider under Article I,

Section 27 of the Pennsylvania Constitution.

With particular respect to his right

to proceed with an appeal of the actions

taken by the Department of Environmental

Resources under the Pennsylvania Sewage

Facilities Act, Gerald Wyant alleged

the matters contained in paragraphs 1

through 23 and paragraphs 126 through 130

of his notice of appeal. These allegations

;

;

are set forth verbatim in the appendix

hereto. Paragraphs 8 through 15 assert

his status as a “party” entitled to

proper written notice of an appealable

adjudication, pursuant to the Pennsylvania

Administrative Agency Law and the regu-

lations of the Environmental Quality

Board; the nature of the interest affected

by the action of the Department as an

interest in “property"™ i.e., an

entitlement, grounded in state law, that

cannot be removed except for cause; and

Gerald Wyant's standing, as a directly

affected landowner, both to appeal to

the Board and to raise the Federal

constitutional questions here presented.

Paragraphs 16 through 23 describe the

notice actually given to Gerald Wyant of

the proceedings conducted by the Depari-

ment, characterize it as defective under

applicable regulations and statutes as

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well as the constitutional standard

believed to apply, and hanbend that

refusal to permit his appeal will deprive

him of liberty and property without due

notice and opportunity to be heard,

contrary to the Fourteenth Amendment of

the Federal Constitution: Paragraph

126 alleges that these grounds constitute

good cause to grant Gerald Wyant leave

to appeal nunc pro tunc under 25 Pa. Code

§21.53(a), quoted above.

On May 15, 1985, pursuant to Pre-

Hearing Order No. 1 of the Environmental

Hearing Board, issued December 31, 1984,

Gerald Wyant filed a Pre-Hearing Memorandum

supplementing and expanding his allega-

tions of fact and setting forth his

contentions of law, with detailed citations -

to case authorities and applicable

statutes or regulations. Relevant

excerpts from this memorandum are also

=

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included in the appendix.

Hearing of the matters raised by

Gerald Wyant in ‘the above-described

pleadings was shied what in due course

to take place before the Environmental

Hearing Board on September 15, 1985.

‘On that date, at a pre-hearing conference

requested by Mr. Wyant, the Borough of

Newry orally moved for a continuance of

the hearing and; for dismissal of Mr.

Wyant's appeal of the actions taken by

the Department under the Sewage

Facilities Act. The continuance was

granted but the parties were directed

to file written pleadings on the motion

for dismissal. The response filed by

Mr. Wyant on October 10, 1985, largely

incorporated matters already alleged or

contended by him in the documents pre-

viously filed on December 17, 1984, and

May 15, 1985, although it also alleged

certain new ieeeaviacities, learned

through discovery, that went to the

validity of the original plan approval

on non-Federal grounds. Excerpts are

included in the appendix.

On November 6, 1985, the Environ-

mental Hearing Board jeued an Order and

Opinion dismissing Gerald Wyant's appeal

under the Sewage Facilities Act. No

hearing on the motion for dismissal or

the reply thereto was conducted before-

hand, although the Board, at the conference

on September 15, 1985, had indicated

that a hearing would ial svensk. The

Board's Opinion said that Mr. Wyant's

motion had only raised matters going to

the merits of his appeal, and had not

alleged grounds amounting to good cause

under 25 Pa. Code $21.53. On December 5,

1985, Gerald Wyant filed a petition for

review of that determination with the +

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Commonwealth Court of Pennsylvania.

That petition alleged all constitutional

and state ateredexy objections to the

dismissal that had earlier been raised

below. The appeal was docketed in the

Commonwealth Court as No. 3247 C.D. 1985.

On January 3, 1986, however, the

Borough of Newry moved to quash the appeal

in the Commonwealth Court, alleging that

it was interlocutory because Gerald

Wyant's appeals of the actions taken by

the Department of Environmental Resources

under the Clean Streams Law were still

awaiting hearing before the Board below.

Mr. Wyant responded that the Borough had

already resolved to implement the plan

revision approved by the Department,

which had the power under winie. tine to

order immediate implementation of the

specific and detailed provisions of the

plan; and that, moveover, principles of

27

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res judicata applied in Pennsylvania would

prevent any person from raising issues

deemed to have been resolved by the plan

revision approval in a later proceeding

challenging an implementation order or

the issuance of permits under the Clean

Streams Law. The Commonwealth Court

agreed and held that the order of the

Board was final and appealable in an Order

and Opinion issued January 22, :' 1986.

And when the appeals of the Clean Streams

permits came before the Environmental

Hearing Board for hearing during March 10-

13, 1986, this opinion proved to be

correct: Gerald Wyant was in fact

limited to challenging the adequacy of

the effluent limitations and facility

specifications on narrow, technical

grounds, and precluded from raising

broader issues concerning the existence

‘of environmentally preferable and allegedly

28 |

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feasible alternatives to a project of

the type and siting contemplated by the

Borough.*

Counsel for the parties briefed and

orally argued the issues before the

Commonwealth Court. Once again, the

"Borough contended that the action taken

by the Department under the Sewage Facil-

ities Act was not final, as a practical

matter, with a Saran to Gerald Wyant,

suggesting, for! exanple, that he might

seek to raise ake objections thereto

through preliminary objections to a

declaration of taking filed in an eventual

condemnation proceeding under state law.

(Actually, the bieineit ieiedi Code of

Pennsylvania provides that a condemnee

may file preliminary objections that

challenge the power and right of the

condemnor, under state law, to effect the

taking, but only if the same has not been

*As of this date, the Board has t to isn findings of

fact and conclusions of law a basis of the record made

in March 1986.

previously adjudicated. Act of June 22,

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1964, Special Session, |P.L. 84,§404,

as amended, 26 P.S. § 1-406.) This time

the Commonwealth Ceukt |aptued with the

Borough, and affirmed the order of the

Environmental Hearing Board in an Order

‘and Opinion dated beaey 7, -1987.

| On February 3, 1987, Gerald Wyant

filed a petition for allowance of an

appeal of the esdalon' of the Commonwealth

Court with the Supreme Court of Penn-

sylvania. On May 27, 1987, the Penn-

sylvania Supreme Court entered a per curiam

order denying Gerald Wyant's petition,

docketed there as No. 74 Western District,

Allocatur Docket, 1987, without opinion.

}

Review by this Court is now being sought.

REASONS WHY THE ISSUES, IN THIS CASE

REQUIRE PLENARY CONSIDERATION

This case involves straightforward

L)

and well-settled Federal principles of

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procedural due process, which, however,

ane

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are presented for! application in the

context of a rather complex state

statutory scheme fox the administrative

adjudication of shvixonnmadat interests.

The appellant adekts that he hesitated

before concluding! that this case was

cevisesbhe here by appeal under 28 U.S.C.

§1257(2) rather esas by writ of certiorari

under 28 U.S.C. §1257(3). Nevertheless

it is finally difficult to conclude

otherwise.

Before the administrative agency and

the appellate courts below, Gerald Wyant

refrained from explicitly attacking the

statutes and regulations whose con-

' stitutional validity - as they have

finally been applied to the circumstances

of this case -.is now called more directly

into question. Instead, he argued to

those tribunals that these statutes and

regu lations must be iriterpreted in a

3h

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manner that is consistent with the

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requirements of the Due Process clause

of the Fourteenth Amendment.

For example, he contended that the

term "party" as it is used in the

statutes and regulations which require

that all parties must ve given written

notice of an adjudication, and which

provide that no adjudication shall

become effective nor any appeal period

begin to run against a party until he

has been given such notice, must be

interpreted to include those persons

who should be made parties to the pro-

ceedings because their interest in the

outcome is of constitutional proportions.

The term as it appears in this context

has already been so construed in Penn-

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sylivania. Commonwealth of Pennsylvania,

Department of Insurance v. Pennsylvania

Coal Mining Ass'n., 25 Pa.Cmwlth. 3, §

32

csiitn iii auurenaias

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358 A.2d 745 (1976). And the highest

court of Pennsylvania has already held

that a landowner cannot constitutionally

be deprived of significant incidents of

his ownership by an administrative

adjudication without a meaningful oppor-

tunity to be heard therein. Hardee's

Food Systems, Inc. v. Commonwealth of

Pennsylvania, Department of Transportation,

495 Pa. 514, 434'A.2d 1209 (1981) (ingress

and egress upon abutting public street).

Similarly, the regulations of the

Pennsylvania Environmental Quality Board

adopted under Section 1921-A of the

Pennsylvania Administrative Code of 1929

and set forth above rest upon the following

sections of the Commonwealth Documents

Law of Pennsylvania:

§904. Constructive notice.

Unless otherwise specifically

provided by statute other than a

provision of this title, the pub-

lication under this part (in the

Pennsylvania Bulletin) of any

document required or authorized by

this part to be so published shall,

except in cases where notice by

publication is insufficient in law,

be sufficient to give notice of the

contents of such document to any

person subject to or affected

thereby. ra added )

§906. Reasonable notice of hearing.

Whenever notice or or oppor-

tunity to be heard is required or

authorized to be given by the

Commonwealth government by or under

any statute, or may otherwise be

properly given, the notice, except

in cases where notice by publication

is insufficient in law, shall be

deemed to have been given to all

persons residing within this Common-

wealth, and to all persons owning

or having any interest in any property

situated within the limits thereof,

if said notice shall be published

in the bulletin...(emphasis added)

45 Pa. C.S. §$§904, 906: Again and again,

Gerald Wyant argued that constructive

notice to him by official publication

was insufficient in law, the method

neither being such as was reasonably

calculated, under all the circumstances,

34

to apprise him of the pendency of the

administrative action and afford him an

opportunity to Jecsent his objections,

nor constituting such notice as one

desirous of actually informing him might

‘reasonably idaae - given the magnitude

and singular nature of his interest as

well as the ease with which he could

have been contacted - to accomplish that

end. Mullane v! Central Hanover Bank &

Trust Co., 339 U.S. 306 (1950).

One ought properly to be dismayed .

by the fact that, more than 35 years

after the decision in Mullane, patently

fictional notice continues to be rule

under statutes of the kind it invalidated,

and persons continue to be deprived of :

important interests in liberty and .

property without opportunity to be

heard, with the blessing of state courts.

:

:

$

:

.

Pennsylvania is somewhat unusual in

35

having a Statutory Construction Act,

among whose provisions is the presumption,

set forth at l Pa. C.S. §$1922(4), that

its General Assembly does not intend to

violate the United States Constitution

by its enactments. Again and again,

Gerald Wyant sought to have the adminis-

trative agency and the courts below

squarely address the issue once again

presented here; in each instance, however,

the issue was largely or wholly evaded.

Ancient Egyptian Arabic Order of Nobles

of the Mystic Shrine v. Michaux, 2/9

U.S. 737 (1929).

The Environmental Hearing Board, for

example, mischaracterized the grounds

he adduced in support of his right to

proceed as consisting only in the alleged

merits of his appeal under the Sewage

Facilities Act; then, falsely analogizing

his situation to that of a litigant who

had appeared in a court proceeding but

failed thereafter to seek tinely appellate

review of an adverse determination, dis-

missed his appeal on the ground that

he had not alleged outright fraud in the

proceedings that had taken place in his

absence before the Department. The

Commonwealth Court first declined to quash

review, on the ground that, with respect

to Gerald Wyant, the determination made

by the Department under the Sewage Facil-

ities Act was final; and then, after Mr.

Wyant had already been precluded in a

collateral proceeding from raising

substantial environmental issues deemed

to have been resolved by the plan

revision approval, upheld the Environ-

mental Hearing Board on the ground that

the plan revision approval, although

specific in its terms and enforceable,

was somehow merely preliminary, in a

oT eee i |

sense that would preclude the existence

of procedural due process rights. (In

so holding, the Commonwealth falsely

assimilated the adj udicatory proceedings

mandated by the Pennsylvania Sewage

Facilities Act to the quasi-legislative,

fact-finding commu nity highway hearings

of the kind mandated by 23 U.S.C. § 128

and discussed in Citizens to Preserve

Overton Park, Inc., v. Volpe, 401 U.S.

402 (1971).) The Pennsylvania Supreme

Court declined even to review the case.

Any plan or plan revision su bmitted

to the Pennsylvania Department of Environ-

mental Resources under the Sewage Facil-

ities Act is required by that act to take

adequate consideration, inter alia, of

any existing state plan affecting the

development, use and protection of water

and other natural resources. 35 P.S.

§750.5(d)(5). In the pleading he filed.

38

}

:

|

with the Environmental Hearing Board on

December 17, 1984, Gerald Wyant cited

the following excerpts from the Environ-

mental Master Plan for the Commonwealth

of Pennsylvania, Environmental Policy

for Prime Farmlands, 25 Pa. Code §§

9.111>9.114:

The productive farmlands of the

Commonwealth of Pennsylvania ae

being converted daily to nonagri-

cultural land uses. Increasing

urban dand use pressvres and

decreasing agricultural productivity

are major factors contributing to

the conversion of agricultural

lands, especially near urban centers.

A broad-based agricultural develop-

ment program is necessary to prevent

the future loss of farmlands of

this Commonwealth. An important

part of this program are environ-

mental policies directed to the

protection of the valuable prime

agricultural soil resources of the

Commonwealth. The concern for these

resources must be translated -

through policies which will strengthen

the agricultural economy and en-

courage farming in areas having

prime farmlands...

The provision of public services

and capital expenditures into areas

with prime, farmlands tends to

Tt. 2a j s is ee >’? oa

‘ a By ; :

yee 4

fas* }

encourage the conversion of land

to more profitable nonagricultural

uses. In active agricultural areas

special care should be taken to

ensure that public investments

will not destroy the environmental

value of these lands...

It is the environmental policy

of the Commonwealth of Pennsylvania

to encourage only the extension of

public services and facilities which

are compatible with the maintenance

of economically viable agricultural

areas and to protect areas where

prime farmlands are being retained

as open. space in accordance with

land use plans...

Evidence gathered in the Common-

wealth of Pennsylvania suggests

that local governments cannot pre-

serve prime farmlands by themselves.

Land use controls, public acquisition

and preferential tax programs to

protect agricultural lands should

be in support of environmentally

sensitive land policy planning

at all levels of government.

Fregently conflicting objectives of

transportation, housing, sewer, and

recreation plans at the state,

regional, and local level indicate

the need for a strong land policy

framework to coordinate efforts to

protect prime farmlands...

He similarly cited sections of the Master

Plan dealing with Pennsylvania's Environ-

40 | "

a

| ous

mental Policies for Floodplains, 25 Pa.

Code §§9.131-9.135.

Gerald Wyant is not, of course,

seeking to have ‘this Court enforce the

substantive environmental policies of

Pennsylvania. But the above-quoted

provisions point to certain substantial

considerations of public policy that

clearly do underly the issue in this

case.

State and local governments today

are very much aware that vociferous

public opposition from their constituents

is easily aroused by any proposal to

locate an environmentally or esthetically

objectionable waste treatment facility

almost anywhere within these juris-

dserione: Understandably, officials

are often anxious to avoid the politic..t

fallout or the protracted, expensive

litigation that can be thé result of such

a proposal.

For local governments, therefore,

the temptation to locate such facilities

beyond the territorial limits of their

jurisdictions, upon the lands of others,

preferably not numerous or economically

powerful, to whom their, officials have

no political accountability, is a great

one. Often, however, it is just such

politically weak or isolated persons who

have interests most deserving of environ-

mental protection under' applicable state

law.

Pennsylvania's statutory scheme

is tailored to provide a particular

solution to this problem. A borough like

Newry may condemn farmland in an adjoining

township for construction of a sewage

treatment plant, but any resolution for

construction must be served in advance

upon all directly affected landowners

outside the borough, and, no constructiom

&

4?

~2-ee w e

may commence until the Department of

Environmental Resources has reviewed

and approved all ‘plans and specification

in accordance with existing laws.

Proceedings before the Department may be

conducted without regard to the formal

adversary procedures of the Pennsylvania

Administrative Agency Law-and perhaps

without exhau stive consideration of the

merits of the positions taken by all

participants~-but all parties to those

proceedings, tochudine those persons

who, although absent therefrom, have an

interest in the outcome that is of con-

stitutional dimehsions, mus t receive

written personal notice of the adj ud-

ication made. Thereafter, any party

may obtain formal, de novo, adversary

review by the Environmental Hearing

Board, whose pitieata decision must

be based upon all applicable environmental

¢

— a

statutes and regulations o well as all

substantial evidence developed on the

record. |

It is not by accident that, under

the statutory scheme, these proceedings '

must ,occur: before the filing of a declaration

of taking can divest an affected landowner

of his proprietary interest in the subject

thereof. Were it not so, a prospective

condemnee in Pennsylvania might yet

file, in response to the declaration,

preliminary objections that challenge

the power and right under law of the

foreign municipality to take his land;

but when the proceedings contemplated

by the scheme as it in fact exists have

been exhausted, that power and right will

be deemed to have been already adjudicated.

The actions taken below ha ve

deprived Gerald Wyant of a substantial

entitlement, grounded in Pennsylvania +:

'

hb | Babar’

'

law, which cannot be terminated except

for cause. Logan v. Zimmerman Brush

Co., 455 U.S. 422 (1982); Memphis Light,

Gas & Water Div. v. Craft, 436 U.S. l

(1978); Goss v. Lopez, 419 U.S. 565

(1975); Board of Regents v. Roth, 408

U.S. 564 (1972); Goldberg v. Kelly,

397 U.S. 254 (1970). Due process

considerations come into play whenever

there is state action that finally

terminates or cuts off an interest in

property. Logan, above; Mullane, above.

Respectfully submitted,

‘

‘

we fi sse

—-

\

Jv Randall Miller

Attorney for Appellant

{

Mellon Bank Building

1206 llth Avenue

Altoona, Pennsylvania, 16601

Telephone: (814) 943-1462

|

|

APPENDIX |

46 |"

Order of the Supr

Pennsylvania... {

Opinions and Orde

Other Courts and

Agencies Below:

By the Envir

of the Com

sylvania on

By the Commo

Pennsylvani

1986 ..ccce:

By the Commg

Pennsylvanj

1987. ccccel

an

Notice of Appeal

SGOT ceehacsuete

Text of Constitut

Statutes, Regul

Involved......-.

Excerpts from th

Gerald Wyant Be

Filed with

Hearing Board on December 17,

Ls

the

ard

1984......

Filed with

Hearing Bo

Filed with

the

Hearing Board

“re

INDEX

eme Court of

aeesecesasebsesesese AWS

rs Rendered by

Administrative

onmental Hearing Board

onwealth of Penn-

November 6, 1985. ee A-G

nwealth Court of

a on January 22,

cee CMS che cece as ACEO

nwealth Court of

a on January 7,

Paha Geeaeeacanaccece A730

filed August 4,

A-21

ional Provisions,

tions and Ordinances

Pr ceRivewriiatedccae O25

Record Made by

Ow:

he Environmental

Environmental

on May 15, 1985.. A-68

Environmental

on October 10,

A-88

Filed with the Commonwealth

Court of Pennsyjlvania on

December Do A9GDcccccvccccocse

Filed with the Commonwealth

Court of Pennsyjlvania on

February 5, ris cecccccccs o°

Filed with the Supreme Court

of Pennsylvaniaj on February

Pe EARP Tererr iT

Ne

THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

In Re: Gerald'W. Wyant, Petitioner,

Vv. biduaaidaien of Pennsylvania,

Department of dovtecadabkat Resources

and Borough of |Newry No. 74 W.D.

Allocatur Dockét, 1987

"May 27, 1987

—

Per Curiam"

COMMONWEALTH OF

PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

GERALD W. WYANT,

Appellant

Vv.

COMMONWEALTH OF PENNSY

DEPARTMENT OF ENVIRONM

RESOURCES,

Appellee

and

BOROUGH OF NEWRY,

Appellee

OPINION NOT REPORTED

LVANIA,

ENTAL

Docket No.

8 4-422-M

aed

y

!

'

OPINION

AND

ORDER

Pursuant to regulation, the Depart-

ment of Environmental Resources (DER)

caused to be published in the Penn-

sylvania Bulletin on January 14, 1984

its approval of a revision to the

Official Sewage Facilities Plan of the

Borough of Newry.

On December 17, 1984, Gerald W.

Wyant (Appellant) filed a notice of

appeal with the Board.

On September 20, 1985, the Borough

of Newry (Permittee/Appellee) filed with

the Board its Motion to Dismiss Appeal

(Motion), and on October 15, 1985,

Appellant filed its Appelt ieatie Reply To

Permittee's Motion to Dismiss (Reply).

In its Motion, Permittee alleges

that the Board lacks jurisdiction to

hear this appeal since the appeal was

not filed within thirty (30) days of the

date of publication of DER‘'s action in

the Pennsylvania Bulletin, pursuant to

the provisions of 25 Pa. Code §21.52.

Press provisions of 25 Pa.

Code §21.52(a) “jurisdiction of the

Board" does not attach unless the appeal

is filed within thirty (30) days after

publication in the Pennsylvania Bulletin.

In his reply, Appellant urges the

Board to accept his appeal nunc pro tunc,

or to dismiss the motion as untimely

filed.

Other than a recitation of the

various merits of his appeal, Appellant

cites no legal reasons why the appeal

should be allowed nunc pro tunc. The

Board has issued numerous decisions

wherein the standards for grant of an

appeal nunc pro tunc have been established

ee

‘

!

and, unfortunately for Appellant, those

standards have not been alleged or met

in this appeal.

As we stated in East Side Landfill

Authority d/b/a East Side Sanitary |

Landfill v. DER 1982, EHB 292:

‘

"To allow an appeal nunc pro

tunc, the allowance must be

based on extraordinary conditions

and must involve fraud or

some breakdown in tne courts’

operation through. . . default

of its officers, whereby the

party has been impaired."

1982 EHB 292, at 301, citing Township

of Franklin, 2 Pa. Cmwlth, 496, 276

A.2d 549 (1971). We see no such

conditions present in this appeal.

Appellant also alleges that the

Motion is untimely pursuant to the

provisions of 25 Pa. Code §21.64 and

the Board's Pre-Hearing Order No. 1

issued December 31, 1984. The

allegation is not specific and does not

specify wherein and in what respects

|

the Motion is untimely, and is there-

fore dismissed as being without merit.

The allegation of late filing by

Appellant is of a j ddiadictisiel nature,

and the record reveals that the appeal

was, indeed filed after more than thirty

(30) days had elapsed from the date of

publication in the Pennsylvania Bulletin.

It is well established that this Board

is without j urisdiction to hear an

appeal which has been filed untimely.

Rostosky v. Commonwealth of Pennsylvania,

Department of Environmental Resources,

26 Pa. Cmwlth. 478, 364 A.2d 761 (1976).

Accordingly, the appeal cannot be

sustained.

ORDER

AND, NOW, this 6th day of

November, 1985, upon consideration of

the Motion To Dismiss this appeal filed

by Permittee/Appellee herein, and the

Reply filed by Appellant, the appeal

of Gerald W. Wyant, at EHB Docket

No. 84-422-M is dismissed.

ENVIRONMENTAL HEARING BOARD .

Maxine Woelfling, Chairman

Anthony J. Mazullo, Jr., Member

Edward Gerjuoy, Member

cc: Bureau of Litigation

For DER: George Jugovic, Jr., Esq.

Central Region

For Appellant: J. Randall Miller,Esq.

Altoona, PA.

For Permittee: Terry R. Bossert,Esq.

McNees, Wallace &

Nurick

Harrisburg, PA.

DATED: November 6, 1985

GERALD W. WYANT,

Petitioner |

V.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES, AND. BOROUGH. OF

NEWRY, ;

Respondents:

IN THE COMMONWEALTH COURT OF PENT GYLVANIA

NO. 3247 C.D. 1985

BEFORE: HONORABLE PAUL S. LEHMAN,

Senior Judge

HEARD: January 17, 1986

OPINION NOT REPORTED

eee age = ,

‘ Be a sel See

Ob ae

an) Spee .

}

MEMORANDUM OPINION

BY SENIOR JUDGE LEHMAN FILED: January 22, 1986;

Before the Court is respondent :

Borough of Newry's application to quash

petitioner Gerald W. Wyant's petition

for review of an Environmental Hearing

Board (EHB) decision denying him per-

mission to appeal nunc pro tunc the

Department of Environmental Resources'

decision granting planning approval to

respondent Borough of Newry. Such

planning approval, issued pursuant to

the Pennsylvania Sewage Facilities

Act, Act oF Teedaey 24, 1966, P.L. (1965)

1535, as amended, 35 P.S. §750.1-.20,

is a prerequ isite to the grant of :

| ;

permits which are necessary for the :

construction of a sewage processing .

facility in the Borough. The site of i

the proposed facility is on land adjaccut . i

to Wyant's property.

The Borough argues that the denial

of permission to appeal the Department's

{

approval of a revision to the Borough's

official plan for sewage services is

an interlocutory decision not yet

subject to judicial review. It contends

that since Slit is participating in

proceedings before the EHB that may

result in the Boveuants failure to

obtain the permits necessary to construct

the sewage facility, he is not yet

"out of court." The Borough stresses

that the litigation before the EHB

has not ended, and that therefore the

order denying permission to appeal nunc

pro tunc cannot be construed as final.

In opposition, Wyant notes that

although he continues to litigate the

propriets of granting’ permits necessary

for the construction of the sewage

facility, those permits are mandated by

Clean Streams Act, Act of June 22, 1937,

. eee ee

eat

oe AES

i

'

i

t

P.L. 1987, as amended, 35 P.S. §§691.1-

-1001, while the planning approval

that he will coateneie permitted to

appeal nunc pro tunc is a Sieairenent

under the terms of the Pennsylvania |

| |

Sewage Facilities Act. He directs our

dttention to Toro Development Co. v.

Department of Environmental Resources,

56 Pa. Commonwealth Ct. 471, 425 A.2d

1163 (1981), where this Court distin-

;

|

{

;

;

guished a challenge to departmental

approval of a specific sewage facility

as the treatment site for sewage from

a particular housing area from a

challenge to the design, construction

and connection of the sewer line itself.

Arguments appropriate to the former

could not properly be heard in proceedings

for the permits hecessary to the lattec.

Reversal of the EHB decision was necessary

in Toro Development because the EHB

i

s

had erroneously permitted and subsequently

sustained attacks on the department's

sewage plan revision approval during

the hearing on the construction permits.

Analysis of these arguments leads

to the conclusion that the order denying

‘permission to appeal is a final order

because the order sought to be appealed

i.e. the Department's planning approval

is a final order which may not sub-

sequently ‘be collaterally attacked

through challenges to the permits re-

quired by The Clean Streams Act.

Toro Development. Thus, while the

Borough is correct in saying that Wyant

may yet be successful in preventing

the construction of the facility because

the EHB may refuse to issue design and

construction permits, if an appeal is

not permitted from the denial of per-

mission to appeal nunc pro tunc, Wyant's

$,

opportunity to challenge approval of

the revision to the Borough's official

plan for sewage treatment which permits

the facility to.be located as planned

will have passed forever.

Accordingly, we shall deny the

application to quash.

Paul |S. Lehman, Senior Judge

IN THE COMMONWEALTH COURT OF PENN-

SYLVANIA

GERALD W. WYANT,

Petitioner | No. 3247 C.D.1985

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES, AND BOROUGH OF NEWRY,

Respondents

BEFORE: -Honorable David W. Craig, Judge

.Honorable Francis A. Barry, Judge

Honorable Jacob Kalish, Senior Judge

ARGUED: September 9, 1986

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BARRY FILED: January 7, 1987

This is an appeal from an order of

the Environmental Hearing Board (Board)

dismissing a petition by Gerald W. Wyant

(petitioner) requesting leave to file

an appeal nunc pro tunc. We affirm.

In November of 1983, the Borough of

Newry (Borough) adopted a revision to

its sewage disposal plan. #Notice of

the revision was published in the

Pennsylvania Bulletin on December 10,

1983. The Department of Environmental

Resources (DER), pursuant to the

Pennsylvania Sewage Facilities Act,

Act of January 24, 1966 P.L. (1965)

1535, as amended, 35 P.S. §§750.1-750.20,

approved the plan and published notice

of its approval in the Pennsylvania

Bulletin on Janu ary 14, 1984. On

December 17, 1984, petitioner filed a

notice of appeal with the Board seeking

to appeal nunc pro tunc DER's approval

of the plan. The request was denied

and this appeal followed.

An appeal from a DER action must

be taken within thirty (30) days from

the date when notice of the action

appears in the Pennsylvania Bulletin.

25 Pa. Code §21.52. Since it is un-

disputed that petitioner did not attempt

to appeal DER's approval of the plan

until eleven months after the publication

of the notice, the only question before

us is whether the Board abused its

discretion in refusing to allow the

appeal nunc pro tunc. The Board may

grant an appeal nunc pro tunc upon a

showing of good cause. 25 Pa. Code §

21.53. Good cause is established when

the delay in filing the appeal is due

to extraordinary conditions involving

fraud or a breakdown in the court's

‘

operation through a default of its officers

which results in injury to the party

seeking the appeal nunc pro tunc.

Western Pennsylvania Water Co. v. Board

of Property Assessment, Appeals & Review,

63 Pa. Commonwealth Ct. 472, 439 A.2d

1259 (1981). a

Petitioner maintains that he has

established good cause by showing that

‘he received no personal notice of DER's

approval of a plan which allegedly!

proposed the construction of a sewage

plant on his property. We find no merit

in this argument for the simple reason

that petitioner was not entitled to

personal notice. The approval of the

plan was merely a preliminary procedure

in the planning stage of a public project

which did not affect petitioner's pew: cty.

In Condemnation Route 201, 22 Pa.

Commonwealth Ct. 440, 349 A.2d 819 (1975),

oe) eT

EE TERE CA CAR Eo

we held that public notice of a hearing

on the environmental Japact of a

highway project was sufficient and the

owners of the land to be taken by the

project were not denied due process by

lack of personal notice because their

rights at that point were no greater than

the rest of the public.

Inasmuch as petitioner did receive

adequate public notice of the plan's

approval, we conclude that the Board

properly held that petitioner presented

no valid reason why his appeal should

be allowed tune pro tunc.

Affirmed.

Francis A. Barry, Judge

FOOTNOTE

lretitioner offers no eviderce in support of his allegation

that the plan specifically proposed to use his lav as the ,

Site for the sewage facility. DER maintains that the pla

did not actually locate the facility. ‘This factual dispute

was mot resolved by the Board.

A-20

_—_—_— or

Petits WESTERN DISIRICT

V.

COMMONWEALTH OF PENNSYLVANIA,

DEPARIMENT OF ENVIRONMENTAL

RESOURCES, ! PETITION FOR ALLOWANCE OF APPEAL

Respondent

and

BOROUGH OF NEWRY,

Respondent NO. 74 W.D. Allocatur Docket, 1987

NOTICE OF APPEAL

Notice is hereby given that Gerald

W. Wyant, Petitioner above-named hereby

appeals to the United States Supreme

Court from the Order entered May 27, 1987,

denying his Petition for Allowance of

Appeal of the Order entered by the

Commonwealth Court in Docket No. 3247 C.D.

1985 on January 7, 1987, affirming on

Petition for Review an Order of the

Environmental Hearing Board of the Common-

wealth of Pennsylvania entered November 6,

A-21

eT ee. “CO ave ae hi { beh. bis ah ee at be NY ¥ a

Pete 8 ey : . P : y

Po tee

1985, in EHB Docket No. 84-422-M.

This appeal is taken pursuant to

28 U.S.C. §1257(2).

This ones) will present the

following question: whether, in denying

Gerald Wyant a right to proceed before

the Environmental Hearing Board with

the appeal he sought to prusecute under

the Sewage Facilities Act, statutes

and administrative regulations were

construed or applied in a manner that

deprived him of his procedural due process

guarantees of reasonable notice and oppor-

tunity to be heard under the Fourteenth

Amendment of the United States Constitution.

Dated August 4, 1987.

J. Randall Miller

Attorney for Gerald Wyant

Mellon Building

Altoona, PA. 16601

' (814) 943-1462

A

i

N

arts)

“>

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS AND ORDINANCES INVOLVED

me.

Constitution of the United States:

AMENDMENT XIV.--CITIZENSHIP: PRIVILEGES

AND IMMU NITIES; DUE PROCESS; EQUAL

PROTECTION; APPORTIONMENT OF REPRESENTATION;

DISQUALIFICATION OF OFFICERS; PUBLIC

DEBT; ENFORCEMENT

Section 1. ‘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 immuni-

ties 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 equai

protection of the laws?

Constitution of the Commonwealth of

+ eB bilind

on

|

3

:

i

|

f

i

Pennsylvania, Article I:

That the eee) | creat and essential

principles of liberty and free government

may be recognized and unalterably es-

tablished, WE DECLARE that---

§1. Inherent rights of mankind

All men are born equally free and

independent, and have certain inherent

and indefeasible rights, among which

are those of enjoying and defending

life and liberty, of acquiring, possessing

and protecting property ‘and reputation,

and of pursuing their own happiness.

§ll. Courts to be open; suits against

the Commonwealth |

All Courts shali be open; and

every man for an injury done him in his

lands, goods, person or reputation shall

have remedy by due course of law, and

right and justice administered without

sale, denial or delay. Suits may be ;

A-24 me

t

|

brought against the Commonwealth in such

manner, in such courts and in such cases

as the Legislature may by law direct.

§27. Natural resources and the public

estate

The people have a right to clean

air, pure water, and to the preservation

of the natural, scenic, historic and

esthetic values of the environment.

Pennsylvania's public natural resources

are the common property of all the people,

including generations yet to come. As

trustee of these resources, the Common-

wealth shall conserve and maintain them

for the benefit of all the people.

Administrative Agency Law, 2 Pa.C.S.§101l

et _seq.:

§101 Definitions

Subject to additional definitions

contained in subsequent provisions of

this title which are applicable to

A-95

specific provisions of this title, the

following words and phrases when used

in this title shall have, unless the

context clearly indicates otherwise, the

meanings given to them in this section:

"Adjudication." Any final order, decree,

decision, determination or ruling by an

agency affecting personal or property

rights, privileges, immunities, duties,

!

‘liabilities or obligations of any or

all of the parties to the proceeding

in which the adjudication is made. The

term does not include any order based

upon a proceeding before a court or which

involves the seizure ori forfeiture of

property, paroles, pardons or releases

|

from mental institutions.

"Agency." A government, agency.

"Appeal" Includes proceedings on petition

for review. |

"Commonwealth agency." | Any executive

agency or independent agency.

>

1

No

Sie « —-O?°., :

‘ae -

wn £8

ik ao inmaar aie

“Party.” <Any person who appears in a

proceeding before an agency who has a

direct interest in the subject matter

of such proceeding.

"Person" Includes a government unit

or an agency of the Federal Government.

1978, April 28, PL. 262, Mes 324 85;

effective June 27, 1978.

§504. Hearing and record

No odiuaisbaiae of a Commonwealth

agency shall be valid as to any party

unless he shall have been afforded

reasonable notice of a hearing and an

opportunity to be jheard. All testimony

shall be stenographically recorded and

a full and complete record shall be kept

of the proceedings.

1978, April 28, Pil. 202, me. 32, $5,

effective June 27, 1978.

§505. Evidence and cross-examination

Commonwealth agencies shall not be

+A ASR SL aS ELAS Sal aoa Naat et a al a Rar al daa

CaS eG

Rep

3

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x

=

ed

1£

Pi

|

|

bound by technical rules of evidence at

agency hearings, and all relevant evidence

of reasonably probative value may be

admitted. Reasonable examination and

cross-examination shall be permitted.

§507. . Contents and service of adjud-

ication. :

All adjudications bf a Commonwealth

agency shall be in weitihg, shall contain

findings and the reasons} for the ad-

judication, and shall be; served upon all

parties or their counsel) personally, or

by mail. :

§702. Appeals !

Any person aggrieved by an ad-

judication of a Commonwealth agency who

has a direct interest in such adju dication

shall have the right to appeal therefrom

to the court vested with Seetedietton

of such appeals by or pursuant to Title

42 (relating to judiciary and judicial ,

|

8

A-28)-

procedure). |

1978, april 28, P.L. 202, No. 53, §5,

effective June 27, 1978.

Administrative Code of 1929, as amended,

71 P.S. §67.1 et! seq.:

§510-21. (Adm. Code §1921-A). Environ-

mental Hearing Board

(a) The Environmental Hearing

Board shall have | the power and its

duties shall be Lo hold hearings and

issue adj dieatt pas under the provisions

of the act of Juhe 4, 1948 (P.L. 1388),

known as the ‘‘imliotetcatian Agency

Law,": on any order, permit, license

or decision of the Department of Environ-

mental Resources.

(b) The Environmental Hearing Board

shall continue to exercise any power to

hold hearings and| issue adjudications

|

heretofore vested! in the several persons

|

departments, boards and commissions set

sided shy = + > ss * - “" Lis \ elt than ye

NL Ce ERE RENE IR BAS AER ee NEA, BELG Vth

forth in section 1901-A! of this act.’

{

(c) Anything in anylaw to the

contrary notwithstanding, any action of

the Department of Environmental Resources

may be taken initially without regard to

the Administrative Agency Law but no

such action of the department adversely

{

affecting any person shall be final as

to such person until such person has had

the opportunity to appeal such action

|

to the Environmental Hearing Board; pro-

vided, however, that any such action

shall be final as to any person who has

not perfected his appeal in the manner

hereinafter specified.

(d), An appeal taken to the Environ-

mental Hearing Board from a decision of

|

onmental Resources

shall not act as a supersedeas, but, upon

the Department of Envir

cause shown and where the circumstances. *

require it, the department and/or the ,

{

|

board shall have the power to grant a

{

supersedeas.

(e) Hearings of the Environmental

Hearing Board shall be conducted in

accordance with rules and regulations

adopted by the Environmental Quality

Board and such rules and regulations

shall include timb limits from the

taking of appeals, procedures for the

taking of appeals| locations at which

hearings shall be| held and such other

rules and regu lations as tu.y be deter-

mined advisable by the Environmental

|

Quality Board...

The Borough Code,, 53 P.S. §45101 et seq.:

§47009. Extensions beyond borough limits;

eminent domain

The borough may extend the necessary

‘ | ,

sewer mains and outlets beyond the Litiucs

of such borough, ‘to a point where such

sewage is to be disposed; and shall have

'

i

|

power to enter upon and ‘condemn such

lands, property and materials for the

construction of all such sewer mains,

outlets, and treatment works as may be

necessary for the disenaal of such

sewage. 1966, Feb.1, PJL. (1965 )---

No. 581, §2009. |

§47010. Notice of certain ordinances

No ordinance for any construction

of sewers or treatment works be yond the

limits of the borough shall be adopted

until notice thereof has been given, by

publication of the proposed ordinance,

once a week for four weeks in one news-

~~

paper of general circulation ‘in the

_— 3

borough, and also by serving copies of

such proposed ordinancejupon all land

owners through whose land such sewer is

to pass, or on whose lands any treatment

A Ne ADE TN ellie inl BO dd Dy eee Te So

works are to be located, at least ten

on be we

days before final action thereon. But no

en Se ae

: ial | A-33 |

notice, as herein provided, shall be

required where sich construction beyond

the limits of a borough is entirely within

the limits of any street or State highway.

In such cases a written notice shall be

given to the corporate authorities of

the ‘munioipality or township having

jurisdiction over such street and consent

of the State Department of Highways

shall be obtained in the case of any

State highway, bbfore construction is

commenced. 1966} Feb. 1, P.L. (1965)---

No. 581, §2010. |

§47022. Approval of Sanitary Water Board

No such sever or sewage treatment

plant shall be construc ted until plans

and specifications have been s ubmitt ed

to the Sanitary Nation Board, and approved

in accordance with provisions of existiug

laws. 1966, Feb.1, P.L. (1965)---No.

581, § 2022.

2 BF (hes ei Artses Fi © cis DY te bs a IN, la "

Mate coe

(Wsells | MS ia ee ate va et dG Cite Jew tb de sedi

!

Commonwealth Documents Law, 45 Pa.C.S.

§101 et seq.: a

§904. Constructive notice

Unless otherwise specifically

provided by statute other than a pro-

|

vision of this title, the publication

!

a:

under this part of any document required

or authorized by this part to be so

!

published shall, except;in cases where

|

notice by publication is insufficient

in law, be sufficient to give notice

of the contents of such document to

any person subject thereto or affected

thereby.

1976, July 9, P.L. 877, No. 160,§1,

effective in 60 days.

§906. Reasonable notice of hearing

|

Whenever notice of hearing or of

opportunity to be heard is required or

authorized to be given ‘by the Common-

wealth government by or under any

statute, or may étherwise properly be

given, the notice, except in cases where

notice by publication is insufficient in

law, shall be babeed to have been given

to all persons residing within this

Commonwealth, and to all persons owning

or having any interest in any property

situated within the limits thereof, if

said notice shall be published in the

bulletin at steen| thas that the period

between the date of publication as

specified in section 903(a)(relating to

effective date of documents) and the date

fixed in such notice for the hearing or

for the termination of the opportunity

to be heard shall be:

(1) not less than the time

specified for the publication of the

notice by th@ appropriate Statute; or

(2), not less than 15 days when no

time for publication is specified by

|

j .

statute, without prejudice, however, to

al

the effectiveness of any’ notice of less

than 15 days where such shorter period

{

is reasonable.

1976, July 9, P.L. 877, No. 160, § 1,

effective in 60 days. 1

Eminent Domain Code, 26 P.S. §101.1

|

et seq.: |

§1-406. Preliminary objections

(a) Within thirty days after being

served with notice of condemnation, the

condemnee may file preliminary objections

to the declaration of taking. The Court

upon cause shown may extend the .time

for filing preliminary objections.

Preliminary objections shall be limited

to and shall be the exclusive method of

challenging (1) the power or right of

the condemnor to appropriate the condemned

property unless the same, has been

|

previously adjudicated; (2) the sufficiehcy

— ee ae

of the security; (3) any other procedure

followed by the condemnor ; or (4) the

declaration of taking. Failure to raise

these matters by preliminary objections

shall constitute a waiver thereof.

(b) Preliminary objections shall

state specifically the grounds relied

upon. !

(c) All preliminary objections

shall be ratsed at one time and in one

pleading. They may be inconsistent.

(d ) Tha| condeaneb shall serve

a copy of the preliminary objections on

the condemnor within seventy-two hours

after filing the same.

(e) The court shall determine

promptly all preliminary objections and

make such preliminary and final orders

and decrees as justice shall require,

including the revesting es title. If

preliminary objections are finally

1

)

sustained, which have the effect of finally

terminating the condemnation, the con-

demnee shall be entitled to damages as

if the condemnation had |been revoked

under section 408 to be assessed as

therein provided. If | issue of fact

is raised, the court us bos take evidence

by depositions or otherwise. The court

|

may allow amendment or direct the filing

of a more specific declaration of taking.

1964 Sp.Sess., June 22, P.L. 84, art.IV.

|

§406. As amended 1969, December 5,

i

i

et. 36 Re:

'

Sewage Facilities Act, 35 P.S. §750.1 et

|

seq.:

§750.5 Official plans

(a) Each municipality shall submit

to the department an officially adopted

plan for sewage services for areas within

its jurisdiction within such reasonable

{

period as the department may prescribe,,

'

a sis

| |

|

and shall from time to time submit re-

visions of such plan as may be required

by rules and regulations adopted here-

under or by order of the ‘department:

Provided, however, That a municipality

may at any time initiate and submit to

the department revisions of said plan.

Revisions shall conform to the requirements

of subsection (d); of this section and

the rules and vesuiations of the depart-

ment. |

~~.

(d) Any person who is a resident

or property owner in a municipality may

request the department to order the

municipality to revise its official plan

where said person can show that the

official plan is inadequate to meet the

resident's or property owner's bevece

disposal needs. ‘Such request may only

be made after a prior demand upon and

t

refusal by the municipality.to so revise

its official plan. The request to the

department shall contain a description

of the area of the municipality inpacin

question and an ciunapiaied of all reasons

advanced by said Releases show the

official plan's inadequacy. Such person

shall give notice to the municipality

of the request to the department.

(c) The required plan or any re-

vision thereof may be submitted jointly

by two or more municipalities.

(d) Every official plan shall:

(1) Delineate areas in which

community sewage systems are now in

existence, areas experiencing problems

with sewage disposal including a des-

cription of said problems, areas where

community sewage systems are planned to

be available within a ten year period,

areas where community sewage systems

{

are not planned to be available within '

A-40

|

|

a ten year period’ and all subdivisions

existing or approved.

(2) Provide for the orderly extension

of community interceptor sewers in a

manner consistent with the comprehensive

plans and needs of the whole ‘area,

provided that this section shall not be

construed to limit the development of

such community facilities at an accelerated

rate different than that set forth in

the official plan.

(3) Peauiae for adequate sewage

treatment facilities which will prevent

the discharge of! untreatal or inadequately

treated sewage or other waste into any

waters or otherwise provide for the

safe and sanitary treatment of

sewage or Shas waete:

(4) Take tata consideration all

aspects of planning, zoning, population

estimates, engineering and economics so

!

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—_

.

EES Se SE “ A oe pe oe as <f ‘ 7 tor VA ae

eh teres 0% a pee. Soe Sates Swe ae ay lie fe

iy ce ase : , Bs 85 Bier“ +7 es

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as to delineate with = practical

precision those portions of the area

which community ayetene. inact reasonably

be expected to serve within ten years,

after ten years, and any areas in which

the provision of such services is not

.

reasonably 40 ala

(5) Take into consideration any

.existing State plan affecting the develop-

ment, use and protection of water and

other natural resources;

(6) Establish procedures for de-

lineating and acquiring on a time schedule

consistent with that established in

clause (4) of this subsection, necessary

rights-of-way or easements for community

sewage Systems ; |

(7) Set forth a time schedule and

proposed methods of financing the con-

struction and operation jof the planned

community sewage systems, together with’

: |

the estimated cost thereof;

(8) Be reviewed by appropriate

official planning agencies‘within a

municipality, including a planning agency

with areawide jutisdiction if one exists,

in accordance with the act of July 31,

1968 (P.L. 805, No. 247), known as the

"Pennsylvania Muhicipalities Planning

Code," as amended, for consistency with

programs of planning for the area, and

all such reviews shall be transmitted

to the department with the proposed

plans; and .

(9) Designate municipal respon-

sibility for implementation of the plan.

(e) The department is hereby auth-

orized to approve or disapprove official

plans for saubed systems submitted in

accordance with ‘this act within one yea-

of date of submission and revisions

of official plans within such lesser

a TS

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time as the regulations |shall stipulate.

H i

(f£) The department is authorized

to provide technical assistance to counties,

=

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Rn

municipalities and authorities in

coordinating official plans for sewage

systems required by this act, including

|

¥ revisions of such plans.

4 (g) For purposes of this act, the

department is authorized to cooperate

with appropriate private organizations.

§750.10 Powers and duties of the

Department of Environmental Resources

The department shall have the

power and its duty. shall be:

(1) To order municipalities to

submit official plans and revisions thereto

within such time and under such conditions

as the rules and reguiettere promulgated

under this act may provide.

(2) To-approve or disapprove

official plans and revisions thereto.

!

AGA |

| bad

(3) To order the implementation of

official plans and revisions thereto.

§750.16. Hearings and appeal.

(b) <Any order, permit, or decision

ef the department under this act, except

as otherwise provided by section 10(10)

and section 1l of this act, shall be

taken, subject to the right of notice

and appeal to the Environmental Hearing

Board, pursuant to section 1921-A of

The Administrative Code of 1929, as

amended, and the! act of June 4, 1945,

(P.L. 1388, No. 442), known as the "

' as amended.

Statutory Construction Act, 1 Pa. C.S.

Administrative Agency Law,'

§

§1922. Presumptions in ascertaining

legislative; intent.

In ascertaining the intention of the

!

;

|

General Assembly in the enactment of

a statute the following !presumptions,

among others, may be used:

YY

(3) That the General Assembly

does not intend to violate the

Constitution of the United States or

of this Commonwealth.

Regulations promulgated by the Environ-

mental Quality Board for the Environmental

Hearing Board, codified at 25 Pa. Code

§21.1 et seq.:

§21.36 Publication of notice.

{ Publication of a notice of action

or proposed action by the Department or

Board in the ETERS FS Bulletin shall

constitute notice to or service upon all

persons, except a packs! effective as of

the date of publication.

§21.52 Timeliness and perfection.

A-46 |

is alli , it

|

(a) Except as specifically provided

in §21.53 of this title (relating to

appeal nunc pro tunc), jurisdiction of

the Board shall not attach to an appeal

from an action of the Department unless

the appeal is in writing and is filed

with the Board within 30 days after the

party appellant has received written notice

of such action or within 30 ¢.ys after

notice of such action has been published

in the Pennsylvania Bulletin unless a

different time is provided by statute,

and is perfected !in accordance with

subsection (b).

(b) No appeal from the granting of

a permit, license, approval, or certif-

ication shall. be deeméd to be perfected

unless and until the recipient of the

permit, license, japproval, or certification

is served with a'‘notice of appeal in

accordance with § 21.51 (relating to

— eT

ee | |

commencement, form, and content of : ;

appeals).

<c) An appeal which is perfected

in accordance with the provisions of this

section but does not otherwise comply

with the form and content requirements of

§21.51 of this title will be docketed

by the Board as a skeleton appeal. The

appellant shall, upon request from the

Board, file the required information or

suffer dismissal of the appeal.

(d) The provisions! of subsections

(a) through (c) supersede the provisions

of 1 Pa. Code §§35.5, 35.6, and 35.7

(relating to informal complaints) and

§§35.9, 35.10, and 35.11] (relating to

formal complaints. |

§21.53 Appeal nunc pru tune.

(a) The Board aponl wcities request

}

and for good cause shown may grant leave

for the filing of an appeal nunc pro tunc;

——

the standards applicable to what con-

stitutes good cause shall be the common

law standards applicable in’ analogous

cases in Courts of Common Pleas in the

Commonwealth. |

(b) The provisions of Poisection (a)

supersede the provisions of 1 Pa. Code §§

35.5, 35.6 and 35.7 (relating to informal

complaints) and $5 35.9 and 35.10, and

35.11 (relating to formal complaints).

Ordinance No. 130-83 of the Borough of

Newry, adopted November 14, 1983, (Planning

Modules referred to on the face of the

resolution as its attachments not

reproduced):

RESOLUTION FOR PLAN REVISION

RESOLUTION OF THE (SUPERVISORS )

(COUNCILMEN) OF NEWRY (BOROUGH) BLAIR

COUNTY, PENNSYLVANIA (hereinafter "the

municipality"). |

RO I 3 ee = -

| . 7 wie

1

WHEREAS Seetion = of the Act of

January 24, 1966, P.L. 1535, No. 537, ft!

known as the "Pennsylvania Sewage Facilities

Act'', as Amended, and the Rules and

Regulations of the Pennsylvania Depart-

ment of Environmental Resources (Depart-

ment) adopted thereunder, Chapter 71 of

Title 25 of the Pennsylvania Code, require

the municipality to adopt an Official

Sewage Facilities Plan providing for

sew.ige secvices adequvatz t») prevent

contamination of waters and/or environ-

mental health hazards with sewage agp

and to revise said plan whenever itjis

necessary to determine whether a proposed

method of sewage suaeaat for a new

development conforms a comprehensive

program of pollution control and water

quality management, and |

WHEREAS BOROUGH OF NEWRY has proposed

J

the development of municipal sewerage

a

facilities and described in the attached

Planning Module for Land Development, and

proposes that such subdivision be served

by BOROUGH OF NEWRY sewage systems, and

WHEREAS the municipality has reviewed

the Planning Module for Land Sivaleseent

fer the proposed subdivision and determined

that the proposed. method of sewage

disposal does Botr centers to and is not

included in the approved "Official Plan"

of the municipality of the Borough of

Newry for sewerage facilities.

WHEREAS the BOROUGH OF NEWRY finds

that the subdivision described in the

attached Planning Module for Land Develop-

ment conforms to applicable zoning,

subdivision, other municipal ordinances

and plans, and to a comprehensive program

of pollution control and water quality

management. |

NOW, THEREFORE, BE IT RESOLVED that

the (Councilmen) of the (Borough) of NEWRY

hereby adopt and submit ito the Department

of Environmental Resources for its approval

as a revision to the "Official Plan" of

the municipality the above-referenced

Planning Module for Land Development

which is attached Sa ty The municipality

hereby sasinaumthe Department of the

complete and timely implementation of

the said plan as required by law.

(Section 5, Pennsylvania Sewage Facilities

Act as amended).

I, DENNIS R. SMITH, Secretary,

Newry Borough Township Board of

Supervisors (Borough Council) (City

Councilmen), hereby certify that the

foregoing is a true copy of the Borough

Resolution #130, adopted 14, November,

|

1983.° 20 |

Environmental Hearing Board

221 North Second Street, 3rd

Floor

Harrisburg, PA. 17101

Gerald W. Wyant, Appellant diy,

Box 185

Newry , PA.

(Telephone: 814-695-7250)

Vv.

Commonwealth of Pennsylvania

Department of Environmental Resources,

Appellee

Docket No. 84-422-M

(1) NOTICE OF APPEAL FROM THE ISSUE OF

NPDES PERMIT NO. PA 0081621 TO THE

BOROUGH OF NEWRY UNDER THE CLEAN

STREAMS ACT:

(2) NOTICE OF APPEAL FROM THE ISSUF OF

PERMIT NO. 9784403 TO THE BOROUGH

OF NEWRY UNDER THE CLEAN STREAMS ACT:

(3) REQUEST FOR LEAVE TO APPEAL, NUNC

(4)

l.

PRO TUNC, PLANNING APPROVAL GRANTED

TO THE BOROUGH OF NEWRY UNDER THE

SEWAGE FACILITIES ACT;

MOTION TO CONSOLIDATE PROCEEDINGS

IN THE MATTERS ABOVE.

APPELLEE

The Appellee, Commonwealth of Penn-

sylvania, Department of Environmental

Resources (hereinafter sometimes iden-

tified simply as "the Department of

Environmental Resources" or "The

Department" or "the Appellee") has

issued, under the Act of June 22, 1937,

P.L. 1987, No. 394, as amended, 35 P.S.

§691.1 et seq.

(hereinafter sometimes

identified simply as "The Clean Streams

Act"), permits designated NPDES Permit

No.

PA 0081621 and Permit No. 9184403, °

'

eee Et. ee ee

ae

to the Borough of Newry, of the County

of Blair, Commonwealth of Pennsylvania

(hereinafter sometimes identified simply

as "the Borough of Newry" or "the

Permittee"), which permits authorize the

discharge of treated sewage waste water

into Poplar Run, a tributary of the

Frankstown Branch of the Juniata River,

from a point source in the Township of

Blair, also of the County of Blair,

Commonwealth of Pennsylvania (and herein-

after sometimes identified simply as "

Blair Township or "the Township").

2. The discharge referred to in the

preceding paragraph will, it is believed,

result from the | operation of a sewage

treatment or disposal facility proposed

to be constructed by the Borough of

Newry at or near the site of the point

source in Blair Township, which facility

is of a type called an "aereated lagoon."

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{

j

}

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i

3. The Appellee has issued, under the

Act of January 24, 1966, P.L. (1965)

1535, No. 537, as amended, 35 P.S. §

750.1 et seq. (hereinafter identified

simply as "the Sewage Facilities Act"),

a permit or planning approval authorizing

revision or amendment, \ the Borough

of Newry, of its official plan for sewage

services to areas within its jurisdiction,

which revision or amendment includes

a proposal for construction and

operation of the facility referred

to in the preceding paragraph.

4. The actions taken by the Appellee and

described in the three preceding paragraphs ©

are the actions from which appeal is

here taken or sought og taken.

5. Notice that the Appellee had taken

the action described tel Sexaaunels l,

supra, was published November 17, 1984,

14 Pa. B 4197. ‘

= -_

6. Notice that the Appellee had taken

the action described on Paragraph 3, supra,

was published January 14, 1984, 14 Pa.

B 188. |

7. Dates upon which notices of the

actions described above were published

as proposed actions, or as actions for

which application had been made, are,

to the extent known, given here, together

with the citation to the place in the

Pennsylvania Bulletin at which the notices

can be found: (a) Permit No. 9784403

under the Clean Streams Act, July 7,

1984, 14 Pa. B. 2342; (b) NPDES Permit

No. PA 0081621 under the Clean Streams

Act, March 24, 1984, 14 Pa. B. 1030.

APPELLANT

8. The Appellant, Gerald W. Wyant (

hereinafter sometimes identified simply

as "the Appellant), is an individual who

os

resides at Box 185, of the Township of

Blair, in the County of Blair, Commonwealth

of Pennsylvania. |

9. The Appellant has rightful possession

legal and beneficial interest, ownership,

use, estate in fee simple absolute, and

title, sole and exclusive, to the land

upon which the Borough of Newry proposes

to construct and operate the sewage dis-

posal or treatment facility described

in Paragraph 2, supra, and from which the

Borough of Newry proposes to discharge

pollutants into Poplar Run, under the

authority of the permics to which

reference was made in Paragraph 1, supra;

this land comprising approximately 44

acres situated wholly within Blair

Township.

10. The Appellant is aggrieved, and

has an interest which is or may be adversely

affected, by the actions! of the Depart- ©

Bre Te. 25.

“a

‘ke

i

ment of Environmen’al Resources from

which he here appeals or seeks to appeal.

ll. The Appellant is directly affected

by the actions of the Department of

Environmental Resources from which he

here appeals or seeks to appeal.

12. The Appellant has hitherto expected,

and the Commonwealth of Pennsylvania,

by the enactment, adoption and enforce-

ment of its Constitution, statutes,

common law, and regulations, has en-

couraged him to expect, that the en-

joyment and use of his lands such as is

now threatened by the actions to which

objection is here made would be protected

and preserved.

13. The Appellant has hitherto put

the lands described in Paragraph 9 tuo

e

productive agricultural use, «which

includes cultivation of wheat, corn, and

other grains and raising strawberries,

-

and if the actions he here appeals or ;

seeks to appeal can be skevented, plans

to continue such productive use.

14. The value, use, and benefits to the

Appellant of the lands described in

Paragraph 9, including but not limited

to the lands upon which the Permittee

proposes to operate his sewage facility,

will be significantly impaired or

destroyed by the actions taken by the

Appellee to which he here objects.

15. The Appellant fears that if he is

not here permitted to voice his objections

to the actions of the Department of

Environmental Resources that he is appealing

the issues he seeks to raise will be

foreclosed and he will, without

opportunity to be heard, , be deprived of

an interest in liberty and property.

NOTICE TO THE-APPELLANT OF ACTIONS TAKEN

AND APPEALED ;

'

|

16. The notices published by the Depart-

ment of Environmental Resources of the

actions, proposed'or final, from which

the Appellant here appeals or seeks to

appeal are hereby incorporated, as

published in the identified locations

in the Pennsylvania Bulletin, by reference

herein and made a’ part hereof.

17. The notices identified in the preceding

paragraph,or some of them, failed to

su f ficiently describe the location of

the sewage disposal facility proposed

to be constructed and operated by the

Borough of Newry, and the proposed

point source of effluent discharge

into Poplar Run in the adjoining Township

of Blair, so that the Appellant, or any

person similarly situated and motivated

by a reasonable concern for the prudent

management of his affairs, might be

apprised and learn in a timely fashion of

the potential adverse effect of these

actions on his own property.

18. The Appellant was given no notice,

actual or constructive, of the proposed

or final actions of the Department to

which he here objects, or of any

application therefor, by the posting of

a written summary or description of these

applications or actions, prominently

and timely, at or near the vicinity of

the site of the proposed construction

by the Borough of Newry, upon his land,

of the sewage treatment or disposal

facility, or near the proposed source

of pollutant discharge, from his land,

by the same Permittee; nor did he

receive the equivalent of such notice.

19. [The Appellant was given no notice,

actual or constructive, of the proposed

or final actions of the Department to

which he here objects, by timely mailing

A-62

to him at his residence or place of

business, or delivering to himself per-

sonally or to his legal agent, or to a

responsible person present at his residence

or place of business, a written summary

or description of these actions, or of

any application therefor; nor did he

receive the equivalent of such notice.

20. The notice to the Appellant, actual

or constructive, of the proposed or final

actions of the Department to which he

here cbjects, as given to him or received

by him, was not such notice as is reason-

ably calcu lated, under ail the circum-

stances, to apprise interested parties

of the pendency of the actions and afford

them an opportunity to present their

objections, nor was it such notice as

one desirous of actually informing the

Appellant might reasonably adopt to

accomplish it.

eS |

21. The Appellant has been deprived of

the opportunity to be edad on the

actions of the Department to which he

here objects because he lacked sufficient

and timely notice of the application for,

and the oy: of, these actions.

22. The notice, actual, or constructive,

of the proposed and final actions taken

by the apartment and here at issue was,

with respect to’ the Appellant, deficient

under the statutes of the Commonwealth

of Pennsylvania and lawful regulations

thereunder, including but not limited to

the Act of June 4, 1945, P.L. 1388,

No. 442, as amended, 2 Pa. C.S. §101 et

seq-, known as the Administrative Agency

Law, and regulations thereunder ; the

Clean Streams Act, and regulations

thereunder; and the Sewage Facilities Act,

and regulations thereunder.

23. The notice, actual or constructive, ”

i .

|

| : i

‘ Hoes: eB

of the proposed and final actions taken

by the Department and here at issue was,

with respect to the Appellant, insuff-

icient and untimely, as a consequence of

which he has been'denied a meaningful

opportunity to be heard in the process

of taking these actions, the promulgation

of which has deprived and threatens

to deprive him of! liberty, property, and

interests in liberty or property; all

of which has occurred without due process

of law, in violation of the Fourteenth

Amendment to the United States Constitution

and the Constitution of the Commonwealth

of Pennsylvania.

PROCEDURAL MATTERS

126. Matters of ‘fact and law set forth

in Paragraph l through Paragraph 23,

supra, establish! good cause. for granting

|

the Appellant leave to file nunc pro tunc

A-65

an appeal of the planning approval

granted by the Department of Environ-

mental Resources under the Sewage

Facilities Act, which action is described

in Paragraph 3, supra. :

127. ‘Appeal of the issuance of permits

to the Borough of Newry by the Depart-

ment of Environmental Resources under

the Clean Streams Act involves questions

of law and fact that would also be

involved in an appeal from the grant of

planning approvals to the Borough by

the Department under the Sewage

Facilities Act.

128. The appellant does not seek to

raise extensive issues in an appeal

under the Sewage Facilities Act that he

does not or could not SPPEOPESALS LY seek

to raise in his appeals, under the

Clean Streams Act.

*.

129. The appeals of the issuance of

NPDES Permit No. PA 0081621 and Permit

No. 9784403 involve common questions

of law and fact. ,

130. The Appellant is a proper party

to proceedings on all actions to which

he objects herein.

: !

°

COMMONWEALTH OF PENNSYLVANIA

Environmental| Hearing Board

GERALD W. WYANT,

Appellant

Vv. aq:

COMMONWEALTH OF, PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Appellee |

}

|

AND | i

BOROUGH OF NEWRY,

Permittee Docket No. 84-422-M

}

|

|

PRE-HEARING MEMORANDU M

|

Filed May 15; 1985

‘

a

J. Randall Miller, Esquire

Attorney for the Appellant

}

Mellon Bank, Building

1206 11th Avenue

Altoona, PA. 16601

(814) 943-1462

a ee eee ee

A. APPELLANT'S corrterilae OF FACT

As was stated above, the factual

allegations made in the Appellant's

initial pleading are incorporated herein

by reference; this Section describes

changes and additions to those allegations.

Ror the sake of clarity and organization

these changes or |additions will here be

referenced to the paragraph number ( in

the initial pleidins ) of the allegation

with which they are associated.

3. The: planning approval isued by the

Appellee and authorizing revision or

amendment by the Permittee of its official

plan for sewage services to areas within

its jurisdiction in fact approved plans

for a facility significantly different

in siting, desigi, and construction

than the facility finally authorized

by Water Quality 'Management Permit No.

9784403. It was'this earlier plan,

rin

|

rather than the plan for | the facility

finally authorized, that!was approved 1

-

by the Blair County Planning Commission .

and adopted by the affected municipal-

, |

ities under Chapter 71 of Title 25 of

the Pennsylvania Code. |

-

7. The just-mentioned planning approval

|

sy ag ae

“ghee? yd sy ot! PSG, - t ew) ns

S fuae qaueae Fs “" { es

was published by the App¢llee as a

ates inns

proposed action in 13 Pa. B on December

op compe ae Raa

10, 1983, and as a final jaction on January

ee ror eer eer mas ont

thie.

-—

14, 1984. The plan amendment or revision

was approved by the Appellee before or

without valid adoption by affected 4

municipalities of plan provisions. "

: H

~ . i +

aa | ;

.

B. CONTENTIONS OF LAW AND CITATION TO _ ie

AUTHORITIES

SE

Standing to Appeal and Related Issues

The matters asserted jin paragraphs

eight (8) through fifteen (15), inclusive,

|

of the Appellant's initial pleading

establish his standing to pursue this

administrative appeal and to raise the

statutory and constitutional questions

it involves. Toshther with the allegations

made in paragraphs one (1) through seven

(7), inclusive, of the same document,

they establish the Appellant as one who

beck use of the interest he has at stake

was’ and is entitled by law to proper notice

of, and opportunity to participate in,

proceedings sebideved by the Department

with respect to the matters here at issue.

As an agerieved person who is

directly and adversely affected by the

actions of the Department herein complained

of, the Appel inns has the right to appeal

them to this Board, under both the Clean

Streams Act, as amended 1980, October

P.L. 894, No. 157, §1, 35 P.S. §691.7,

and the Sewage Facilities Act, 1966,

|

'

January 24, P.L. (19637) 1535, No. 537,

§16, added 1974, July 22, P.L. 621,

No. 208, §9, 35 P.S. §750.16.

The Appellant's interest as a farmer/

landowner, particularly] as described

in paragraph nine (9), paragraph thirteen

(13), and paragraph (14)) of his initial

pleading, is Sufficientily direct to

distinguish itself from the generalized

public interest of persons denied a right

to formal hearing undef the regulations

of the Department, 25 Ba. Code § 91.16(b). ©

Landowners similarly but less directly

affected by actions of jthe Department were

nevertheless held to have standing to

challenge the issuance jof a Clean Streams

Act permit in Community College of ,

Delaware County v. Fox, 20 Pa. Cmwlth..

~

335, 342 A.2d 468 (1975). n> 19) a

Decisions supporting the standing of

the Appellant to intain this action also

include Committee to Preserve Mill Creek

v. Secretary of Health, 3 Pa. Cmwlth.

200, 281 A2d 468 (1971); and Loudon Hill

Farm, Inc. v. MilkjControl Commission,

420 Pa. 548, 217 Aji2d 735 (1966 ).

Appellant ue. that because

of his direct interest in the matters

before the Board in this appeal he is

a "party" to the proceedings of the

Department for the} purposes of the

Administrative Agency Law, 1978, April 28,

P.L. 202, No. 53, 2 Pa. C.S.A. §101 et seq.

In Department of Insurance v. The Penn-

sylvania Coal Mining Assn., 25 Pa. Cmwlth.

1

3, 358 A.2d 745 (1976), the Court held

that for purposes ‘of the provision in

the predecessor of the aforementioned

statute requiring jthat parties be given

notice of any adjudication by an agency:

a person is a/party to an admin-

A-73 “J

bead | ' : : =

- . : e

-

.

|

istrative proceeding if named if

as such or if he may , become a

party by timely action if

authorized by other applicable

statutory law to do so or if

his interest therein is of con-

stitutional proportions...

358 A.2d 745 at 748.

Appellant's interest in the subject

of these proceedings is of constitutional

proportions. In particular, paragraphs

eight (8) through fifteen (15) of his

pleading, especially paragraphs twelve

(12) and (15), establish) that he has

an interest in liberty or property which

is here at stake and which is protected

from deprivation without /due process of

law by the Fourteenth Amdndment of the

Federal Constitution.

The hallmark of property for purposes

of the Fourteenth Amendment is an

-

.

A

individual entitlement grounded in

state law, which cannot be removed except

for cause: Logan’ v. Zimmerman Brush Co.,

455 U.S. 422, 71 L.Ed. 2d 265, 102

S.Ct. 1148 (1982); Memphis Light, Gas &

Water Division ve Craft, 436 U.S. l,

56 L.Ed. 2d 30, 90 S.Ct. 1554 (1978);

Goss v. Lopez, 419 U.S. 565, 42 L.Ed. 2d

725, 95 S.Ct. 729 (1975); Board of Regents

v. Roth, 408 U.S. 564, 33 L.Ed 2d 548,

92 S.Ct. 2701 (1972) (1972); Goldberg

v. Kelly, 397 U.S. 254, 25 L.Ed. 2d

287, 90 S.Ct. 1011 (1970).

Similarly, the Pennsylvania

Supreme Court, in Hardee's Food Systems,

Inc., v. Department of Transportation,

495 Pa. 514, 434 A.2d 1209 (1981), has

stated that:

It is fundamental that a

landowner may not be deprived

of a constitutionally protected

“~~ =

old : - | of

owt w :

property right by the Common-

wealth's exercise of its police

power without a meaningful

Opportunity to be heard...

434 A.2d 1209 at 1212. | There, the

“incident of ownership or occupancy of

land" recognized to be “constitutionally

protected property right" was a land-

owners right of ingress to and egress

from an abutting public highway; the

Appellant can, but does not here feel

it necessary, to cite authorities to

support his contention that the actions

taken by the Department have directly

affected “incidents of his ownership

and occupancy" deserving of at least

equal recognition.

One incident of the Appellant's

ownership protected by state law requires

particular mention, however. The permits

and approvals issued to the Permittee -

portend a torts sg condemnation by tHe:

Permittee of the hppel lant! s land.

The Eminent Domain Law of. Pennsylvania

provides that a prospective condemnee

may file preliminary objections to the

declaration of taking challenging, inter

alia, the power or right of the condemrior

+o appropriate tHe condemned property

!

unless the same has been previously

RS I. ERE LINE ARE CREEL EE RRS EE MESS Di ag te Tete S/R Aye ARN SCR a ee gaaeee ROURRS ae

adjudicated. Act of 1964, Sp. Sess.,

June 22, P.L. 84 art IV §406, as amended,

1969, December 5} P.L. 316, §1, 26 P.h.

§1-406. And the | Permittee here is

without the seeet or right to take the

Appellant's land to construct a sewerag3

treatment plant until plans and

specifications have been submitted to

the Appellee and approved in accordance

with existing Laws. The Borough Code,

Act of 1966, February P.L. (1965)

, No. 581, §2022, 53 P.S. §48501;

|

|

the Clean Streams Act, 1937, June 22,

P.L. 1987, art. II, §207, 35 P.S. §691.207;

and the Administrative Code, 1970,

December 3, P.L. 834, No. 275, §30,

71 P.S. §510-104. |

But if the Appellant were to wait

until a declaration of taking of his land

is filed by the Permittee before chall-

enging with preliminary| objections its

power and right to appropriate it,

he would be likely to hear the Court of

Common Pleas decide that the issue had

already been decided by actions of the

Department of Environmental Resources,

that it is foreclosed tb him by his

failure to exhaust his administrative

remedies, that the Court is not competent

to decide complex engineering, economic,

social and scientific issues and will

defer to the expertise of the appro-

priate state agency, or! that it lacks

|

ge eee er roy

jurisdiction to review via collateral

attack the final! actions of the Depart-

ment. See, for jexample, In re Con-

demnation of Right of Way in Greencastle

Borough, 37 D&C '2d 575, 7 Adams L.J. 147

(1966). | 3

Due process considerations. come into

play whenever state action that finally

terminates or cuts off an interest in

liberty or property takes place: Logan

above, 71 L.Ed. |2d 265 at 273; Mullane

v. Central Hanover Bank & Trust COs

339 U.S. 306, 94 L.Ed 865, 70 S.Ct.

652 (1950).

SECTION B CONTINUED

Insufficiency of the Notice Given to the

Appellant

The actions taken by the Appellee

and complained of in this proceeding

were final orders, decrees, decisions,

determinations or rulings by a government

ee me

| :

| | &

agency affecting personal or property

rights, privileges, immunities, duties,

liabilities or obligations of any or

|

all pas thee or persons properly made

parties, thereto, and were "adjudications"

within the meaning of the Administrative

Agency Law, cited above, a Pa. C.S.A.

§101 et seq. :

Decisions finding, in similar

circumstances, that an adjudication

had taken place include: Hardee's Food

!

Systems v. Department of Transportation,

495 Pa. 514, 434 A.2d 1209 (1981); and

Einsig v. Pennsylvania Mines Corp., 69

Pa. Cmwlth. 351, 452 A.2d 558 (1982).

The regulations of the Department them-

selves, at 25 Pa. Code §91.16, support

this contention. !

As a party to an adjudication, the

Appellant had a right under the Adminis-

trative Agency Law to reasonable notice

|

Nk en

= of. and opportunity to be heard concerning

these actions before they were taken,

without which notice and opportunity

the actions taken are invalid. 2 Pa.

C.S.A. §504; Hardee's Food Systems,

supra.

’ Furthermore, the failure to provide

adequate notice to the Appellant is

|

a jurisdictional defect that inval-

idates the actions already taken by

the Department. Clark v. Department

of Public Welfare, 58 Pa. Cmwlth. 142,

427 A.2d 712 (1981); North Alabama

Express, Inc., v. United States,

585 F.2d 783 (5th Cir. 1978).

"Reasonable notice" of adminis-

trative action, according to Clark,

is notice whichis reasonably calculated,

under the bitcunstaudss, to apprise interesced —

parties of the jpendency of the action and

afford them an opportunity to present

their objections. Clark applies to

notice standard of Mullane v. Central

.

Hanover Bank & Trust Co-, cited above,

which standard is more fully set forth

in patagraph twenty (20) of the

Appellant's pleading. |

Mullane found defective a notice

:

by publication to beneficiaries of a

trust where notice by direct mail was

feasible; under its standard, notice

to the Appellant by one or both of the

means recited in paragraphs eighteen (18)

and nineteen: (19) of his pleading was

required to satisfy the demands of

due process. Under Mullane, too, notice

by publication in an offficial register

which failed to adequately identify the

property affected by proposed adminis-

trative action was surely defective.

Though:not the ultimate authority

. 5

=f

i

administrative agencies |the constitutionalj.

- o%s ae

4 - “i

: t :

: ae: 2

44 ,

6 TRS ?

+ Sey me

’? . >*

f ; “Sta. oa

ri?

"on reasonable notice, the

the Department also have some relevance.

As a respondent or person directly

affected by the attions of the Department,

the Appellant cael entitle under 25

Pa. Code §91.16(a), promulgated under

the Clean Streams! Act, 1937, June 22

P.L. 1987, No. 394, §5, 35 P.S. §691.5,

to more direct ndtice than could be

afforded by abl deation in the

Pennsylvania Bulletin.

Under the same authority the

Department adopted 25 Pa. Code § 92.61,

requiring that public notice must be

published by the’ applicant near the

entrance to his premises and in nearby

places of his cubeiontéan for an

NPDES permit to discharge pollutants,

and must contain specific, detailed

information concerning the application.

The Appellant contends that it is the

x

<a

s

’

intent of this regulation that the

public notice should be posted in places }

near the site of the proposed discharge, _

so that nar tint pation of interested a

members of the affected public might

but, in any case, the a

:

be elicited;

Yt

regulation here cited was not complied

} '

‘ss

Ss

with. te, My

et

- oes

SECTION B CONTINUED:

Procedural Matters

Regulations of the Environmental

Hearing Board provide, at 25 Pa. Code

§21.53(a), that the Board, upon written

request and for good pos shown, may

grant leave for the filing of an appeal

nunc pro tunc. The standards applicable

to what constitutes good cause are the

common law standards applicable in

analogous cases in the Courts of Common

Pleas of the Commonwealth.

One of the more common situations’

— ees a -

bs R. 2a

? - ;

- which bears some ‘analogy to the situation

of the Appellant jhere and which arises

from time to time in the Courts of Common

Pleas of the Commonwealth is that in

which a petition; equitable in nature, is

made by a defendant to strike off or

open a default Abdement entered against

him through a praecipe after his failure

to answer or operas plead to a com-

plaint within the time savigd! fixed by

the Pennsylvania’ Rules of Civil Pro-

cedure. ?

In general, if an order, decree or

judgment has been entered without

notice to a party who is entitled to

notice, and if this failure to issue or

to serve process is apparent on the record,

the party may Ridaies that, the order,

decree or judgment be stricken off as .

void, at least to the extent that it

affects his interest. (Citations omitted)

mma | ett

Occasionally a default judgment is |

stricken becatise of an irregularity in

the process issued or in the service

thereof. (Citations omitted):

A judgment may be opened, as apeesin

to being atrigken’ under the same cir- i

cumstances, and for this purpose defects

need not appear on the face of the record

itself. judgments were opened where the

defendant was not actually served with

process in (Citations Omitted).

Inadequate or improper service

of process is also grounds for opening

a judgment. (Citations Omitted). And

actual ignorance by the defendant of the

fact that an action had been instituted

has without more been sufficient in some

cases to justify the opening of a default

judgment. (Citations Onitted).

The last group of decisions follow

the general principle that a petition to

|

‘

.

open, being equitable in nature, Williams

v. Allegheny Union Plaza, Inc., 231 Pa.

Super. 170, 332 Al2d 493 (1974), is

addressed to the discretion of the court,

Watts v. Jenkins,' 226 Pa. Super. 469,

}

313 A.2d 775 (1973), and may be granted

if the defendant's failure to act was

explainable or excusable, (Citations

Omitted).

END SECTION B

COMMONWEALTH OF PENNSYLVANIA

Environmental Hearing Board

GERALD W. WYANT,

APPELLANT

-VS.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

APPELLEE

AND

BOROUGH OF NEWRY,

PERMITTEE

DOCKET NO. 84-4220M

APPELLANT'S REPLY TO PERMITTEE'S MOTION

TO DISMISS

AND NOW, this 10th day of October,

1985, comes the Appellant, Gerald W.

Wyant, by and through his Attorney, J.

Randall Miller, and respectfully

represents as follows:

l. The matters of fact and law set forth

and alleged in Paragraphs numbered One (1)

through Twenty-Three (23), inclusive, and

A-88

One-Hundred_ Twenty-Six (126) through

One-Hundred-Thirty (130), inclusive,

of the Appellant's original pleading,

filed with the Honorable Board on December

17, 1984 and including his notices of

appeal, request for leave to appeal

nunc pro tunc, and motion to consol-

idate proceedings, are hereby incor-

porated herein by reference and made

a part hereof.

2. Additional matters of fact set forth

and alleged in Section A, Paragraphs

numbered Three (3) and Seven (7) of the

Appellant's Pre-Hearing Memorandum filed

with the Honorable Board on May 15, 1985

are hereby incorporated herein by

reference and made a part hereof.

3. Pages One (1) through Four (4),

inclusive, (subtitled “standing to

Appeal and Related Issues"), pages

Five (5) through Six (6), inclusive,

A-89

(subtitled "Insufficiency of Notice

Given to the Appellant") and pages Twenty-

Nine (29) through Thirty (30), inclusive,

(subtitled "Procedural Matters"), all

from Section B of the Appellant's Pre-

Hearing Memorandum, filed with the

Honorable Board on May 15, 1985, are

hereby incorporated herein (insofar as

they set forth legal grounds in support

of this Reply) by reference and made a

part hereof.

WHEREFORE, Appellant respectfully

prays the Honorable Court to deny the

relief requested by the Permittee in its

motion to dismiss.

Respectfully submitted,

J. Randall Miller

Dated: October 10, 1985

A-90

eae Et

ee wd “ sn __

Re Be Pa erg so ee Re

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

NO. Term, 1985, Filed

December __, 1985

GERALD W. WYANT,

Petitioner

Ve

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

AND

BOROUGH OF NEWRY,

Respondents

PETITION FOR REVIEW

AND NOW, this day of December

1985, comes the Petitioner, Gerald W.

-Wyant, by and through his Attorney, J.

Randall Miller, Esquire, and respectfully

represents to the Honorable Court as

follows:

7. Respondent Borough of Newry proposes

to construct and operate a municipally-

owned sewage treatment facility upon

land owned and farmed by the Petitioner

in the adjoining Township of Blair.

8. On January 14, 1984, the Respondent

Department of Environmental Resources

caused to be published in the

Pennsylvania Bulletin a notice that

it had approved a revision of the Official

Sewage Facilities Plan of the Borough

of Newry to provide for construction

of a sewage treatment facility.

9. The aforementioned notice did not

say that the sewage treatment facility

was to be located in Blair Township;

nor did it indicate Department approval

of revisions of the official sewage

facilities plans of the Township of

Blair and the Township of Freedom, two

other municipalities affected by plan

provisions.

A-92

14. As respects the Petitioner, the notice

published by the Respondent Department

of Environmental Resources on January 14,

1984 was inadequate to apprise him of

the action it had taken and was legally

ineffective to begin running of the

thirty-day period specified for filing

an appeal under 25 Pa. Code §21.52.

15. The Petitioner was given no

actual or constructive notice by Respon-

dents of the pendency or final approval

by the Department of Environmental Re-

sources of the official proposal by

the Borough of Newry to construct a

sewage treatment facility upon his land,

other than the defective constructive

notice by publication in the Penn-

sylvania Bulletin to which reference was

made above.

16. The notice given to the Petitioner

by the Respondents of the proposed and

A-93

final actions here at issue was deficient

under the statutes of the Commonwealth of

Pennsylvania and lawful regulations

thereunder, including but not limited

to the Administrative Agency Law, the

Pennsylvania Sewage Facilities Act and

regulations, including regulations of

the Department, thereunder.

17. The notice given to Petitioner by

the Respondents of the proposed and final

actions here at issue was, with respect

to the Petitioner, insufficient and

untimely, as a consequence of which he was

denied a meaningful opportunity to be

heard in the process of taking these

actions, which, unless the order of the

Environmental Hearing Board to which

objection here is made is reversed, will

deprive him of liberty, property, and

interests in liberty or property; all!

without due process of law, in violation

A-94

— aT

ae Went

ET EAR READ UES it Bish Ee:

Trt ste epee gat te"

ERPS.

of the Fourteenth Amendment to the United

States Constitution and the Constitution

of the Commonwealth of Side ivania.

18. Matters of fact and law alleged

above were alleged or raised in proceedings

before the Environmental Hearing Board,

which, nevertheless, dismissed the

Petitioner's request for leave to file

nunc pro tunc without oral argument or

evidentiary hearing thereon.

19. The Environmental Hearing Board of

the Commonwealth of Pennsylvania has

jurisdiction to grant the Petitioner

leave to appeal nunc pro tunc under the

Pennsylvania Sewage Facilities Act and the

Administrative Agency Law.

20. The Petitioner alleged or raised

before the Environmental Hearing Board

matters sufficient to constitute good

cause for granting leave to file nunc pro

tunc under the standard enunciated in 25

Pa. Code §21.53(a).

WHEREFORE, Petitioner respectfully

prays the Honorable Court to vacate the

order entered by the Enfironmental Hearing

Board on November 6, 1985, dismissing his

appeal under the Pennsylvania Sewage

Facilities Act and remand the case to

the Board. tar evidentiary hearing if

necessary on the facts alleged by Petitioner

in support of his request for leave to

file the appeal nunc pro tunc, with

instructions binding the Environmental

Hearing Board to grant Petitioner

leave to so proceed if he can prove those

allegations.

Respectfully submitted,

J. Randall Miller, Esquire

Attorney for the Petitioner

Mellon Bank Building

1206 llth Avenue

Altoona, PA. 16601

(814) 943-1462

A-96

3]

y

:

5

:

;

'

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

GERALD W. WYANT,

Petitioner

-VvS.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent

AND

BOROUGH OF NEWRY,

Respondent

NO. 3247 C.D. 1985

BRIEF FOR PETITIONER

Petition for Review of the Order

of the Environmental Hearing Board of

the Commonwealth of Pennsylvania on

November 6, 1985 in EHB Docket No.

84-422-M.

III. STATEMENT OF QUESTIONS INVOLVED

1. Does ownership, possession and use

of land upon which a neighboring

municipality plans to build a sewage

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plant confer an interest of constitutional

proportions in the outcome of an adjud-

ication approving the plan, and therewith

status as a party entitled to notice adequate

under the Administrative Agency Law?

This question was not answered below.

2. With respect to such an interest, does

constructive notice by an official pub-

lication that identifies neither the

owner and location of the land itself

nor the participation of adjoining

townships in the plan satisfy the due

process standard of the Administrative

Agency Law and other statutes or

regulations?

This question was not answered below.

3. When the notice due to a proper party

to an adjudication is deprived of due

process because the agency neglects its

duty to see that he is given reasonable

notice of its action, is there good cause,

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under the standard applied by the Courts

of Common Pleas in analagous cases, to

grant him leave to appeal that action

nunc pro tunc?

This question was answered in the

negative below.

4. (see brief)

V. SUMMARY OF ARGUMENT

The Borough proposes to construct

a sewage plant on land owned, farmed

and inhabited by Gerald Wyant in an

adjoining Township. When it gave its

blessing to this plan the Department

took an action that directly threatens

to deprive Gerald Wyant of liberty and

property protected by the Due Process

Clause of the Fourteenth Amendment to the

United States Constitution. This action

was taken in an adjudication to which

although absent, he was a proper party.

As such he was entitled by the Adminis-

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naneee

|

trative Agency Law to adequate notice of

the proceedings.

Instead the Department caused certain

publications to be made in the Pennsylvania

Bulletin. These failed to identify

Gerald Wyant or his land, or to say that

the plan it approved is in fact the ,

joint plan of several municipalities,

among them the Appellant's own, whose

participation is essential and was later

solicited, procured and approved by the

Department without publication of its

actions.

The notice constructively given

by this means to Gerald Wyant was not

such notice as is reasonably calculated,

under all the circumstances, to apprise

interested parties of the pendency of the

action and afford them an opportunity to

present their objections, nor was it such

notice as one desirous of actually informing

Gerald Wyant might reasonably adopt to

accomplish that end. The notice was

therefore deficient under the standard,

constitutionally mandated, of the Admin-

istrative Agency Law, and did not satisfy

the standards of other statutes and

regulations.

This lack of adequate notice is

a jurisdictional defect that, with

respect to Gerald Wyant at least,

invalidates the Department's actions

until the defect is cured. And insofar

as the plan essentially affects munici-

; palities other than the Borough, the

Department's approval of their official

resolutions adopting the plan cannot

become final - and therefore subject

to the time limitation for appeal to

the Environmental Hearing Board - until

notice of that action has been published.

LE on

Even were it otherwise, Gerald

Wyant has still, under regulations of

the Environmental Hearing Board that

have the force of statute, alleged good

cause for them to grant him leave to

appeal nunc pro tunc. In analagous cases

before the Courts of Common Pleas of

this Commonwealth, a petition, equitable

in nature, to strike off or open a

judgment that adversely affects a party

will be granted if he can show that the

notice he received of the proceedings

that led to the judgment was legally

insu fficient.

So much follows from and is con-

sistent with decisions of the higher

Courts of the Commonwealth. In this

case the inadequacy of the notice

given is of constitutional dimensions.

Its unreasonableness bespeaks a

negligence, wrongful in its effect to

the Appellant. Unless his right to

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appeal is restored, he will remain the

victim of a breakdown in the routine

process of Departmental adjudication.

IN THE SUPREME COURT OF PENNSYLVANIA

GERALD W. WYANT,

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent

and

BOROUGH OF NEWRY,

Respondent

DOCKET NO. 74 W.D.

Allocatur, 1987.

PETITION FOR ALLOWANCE OF APPEAL

Petition for Allowance of Appeal

from the Order of the Commonwealth Court

of Pennsylvania on January 7, 1987, in

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Docket No. 3247 C.D. 1985, affirming

on Petition for Review the Order of the.

Environmental Hearing Board of the

Commonwealth of Pennsylvania on

November 6, 1985 in EHB Docket No.

84-422-M.

Ill. QUESTIONS PRESENTED FOR REVIEW

1. When a municipality adopts and

resolves to implement a revision of its

official sewage facilities plan, and

the Department of Environmental Resources ,

by order enforceable against the mun-

icipality for noncompliance, approves

the plan revision, has there occurred

a final order, decree, decision,

determination or ruling by an agency

affecting personal or property rights,

privileges, immunities, duties,

liabilities or obligations of any or all

of the persons properly made parties

to the proceeding?

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2. Does ownership, possession and use

of land upon which a neighboring

municipality resolves to construct a

sewage treatment plant confer an interest

of constitutional proportions in the

outcome of an agency adjudication

approving the resolution, and, therewith,

status as a party entitled to notice

adequate under the Borough Code and

Administrative Agency Law?

3. With respect to such an interest,

does constructive notice by an official

publication that identifies neither the

owner and location of the land itself

nor the official but unpublished parti-

cipation of adjoining townships in the

plan satisfy the due process standard

of the Administrative Agency Law and other

statutes and regulations?

4. When the notice that is due to a person

properly a party to an adjudication is

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deficient or not given and consequently

he is not heard therein, can the adjudi-

cation become final so that the period

allowed by law for appeal begins to

run against him?

5. If a person properly made a party to

a proceeding is deprived of due process

because the agency or other officer

neglects its duty to see that he be

given reasonable notice of the adj udi-

cation, is there good cause, under the

standard applied by the Courts of Common

Pleas of this Commonwealth in analogous

cases, to grant him leave to appeal the

outcome of the adjudication nunc pro

tunc?

Questions (1) and perhaps (2) were

answered in the negative by the

Commonwealth Court, which did not reach

the others on that ground, The Environ-

mental Hearing Board answered Question

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(5) in the negative and Question (4)

in the affirmative; it did not address

the other questions.