# Jurisdictional Statement — Wyant v. Pennsylvania Department of Environmental Resources > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0618%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1987 - **Citation:** 484 U.S. 960 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD: COPY AT THE TIME OF FILMING, IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED, 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 , , ; ~ \ » 9 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 , | 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? | 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 ‘ 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 ‘ i ' ' 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 | 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 ' 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 ' | 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 4 ‘ : | ; | | 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 ' ' 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 | 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: | { eee i (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. i (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. | §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 ; 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 | would identify the probable pollutants to be discharged by the facility, set effluent limitations for each pollutant, | 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 | 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 | 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 = a a i, | 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 + | 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 j 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 | | | 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, | | | 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 | procedural due process, which, however, ane ! 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 i manner that is consistent with the ' 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- ' sylivania. Commonwealth of Pennsylvania, Department of Insurance v. Pennsylvania Coal Mining Ass'n., 25 Pa.Cmwlth. 3, § 32 csiitn iii auurenaias , | | ‘ | | 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.” 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 ! zs ee ae —_ . EES Se SE “ A oe pe oe as 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