Summary
In Lebanon County Sewage Council v. Department of Environmental Resources, 34 Pa. Commw. 244, 382 A.2d 1310 (1978), we rejected the argument that 1 Pa. Code § 35.180 required a hearing.
Summary of this case from Snyder v. Dept. of Env. ResourcesOpinion
Argued February 3, 1978
March 10, 1978.
Environmental law — Timeliness of appeal — Jurisdictional requirement — Rules of Practice and Procedure — Delay in raising jurisdictional issue.
1. An appeal from a decision of the Department of Environmental Resources to the Environmental Hearing Board must be filed within the thirty day period prescribed by the mandatory provisions of the Rules of Practice and Procedure governing appeals to the Board. [245-6]
2. The Environmental Hearing Board has no jurisdiction over an appeal not timely filed with the Board, and the lack of jurisdiction of the Board over the appeal is not cured by the fact that there was a delay in raising the jurisdictional issue. [246]
Argued February 3, 1978, before Judges CRUMLISH, JR., WILKINSON, JR. and MENCER, sitting as a panel of three.
Appeal, No. 76 C.D. 1977, from an Order of the Environmental Hearing Board in case of In the Matter of: Lebanon County Sewage Council v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 76-125-W.
Application to the Department of Environmental Resources for reimbursement of expenses incurred in administering statutory sewage program. Application denied. Applicant appealed to the Environmental Hearing Board. Appeal dismissed. Applicant filed petition for review with the Commonwealth Court of Pennsylvania. Held: Affirmed.
Joseph M. Hill, Jr., for petitioner.
Eugene E. Dice, Assistant Attorney General, for respondent.
Petitioner's application for reimbursement of expenses incurred in administering provisions of the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P. S. § 750.1 et seq. was denied by respondent. Petitioner appealed to the Environmental Hearing Board (Board), which granted respondent's motion to dismiss for lack of jurisdiction on the ground that the appeal was not timely filed. We affirm the Board.
Respondent's denial of the application was dated August 10, 1976, and was received by petitioner on or about August 12, 1976. The letter of denial included the address of the Board and stated that any appeals thereto must be filed within 30 days. On October 8, 1976, petitioner sent the Board a letter requesting an appeal. A Board "Notice of Appeal" form was not received by the Board until October 19, 1976. Two days later, the Board issued a pre-hearing order which required each party to submit a memorandum, setting forth all facts and legal contentions upon which it intended to rely, by November 18, 1976. Respondent's motion to dismiss was not filed until November 22, 1976. Petitioner then filed a motion to dismiss respondent's motion on grounds of untimeliness. The Board's order and this appeal followed.
Petitioner acknowledges its failure to perfect an appeal within the 30-day period prescribed by the Board but contends that such failure does not deprive the Board of jurisdiction over the appeal. We have repeatedly held to the contrary. See, e.g., Rostosky v. Department of Environmental Resources, 26 Pa. Commw. 478, 364 A.2d 761 (1976). Nor can we agree with petitioner's argument that respondent's motion to dismiss for untimeliness cannot be granted because it, too, was untimely. As stated by our Supreme Court in Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 368, 214 A.2d 203, 205 (1965):
The filing of a timely appeal being a jurisdictional requirement, the delay of the Commonwealth in raising the issue is of no consequence. Mere delay of one of the parties cannot be said to extend the jurisdiction of the Commonwealth Court to hear appeals beyond the period allowed by statute. (Citations omitted.)
Because no final action was taken by the Board's presiding officer alone, we find no merit in petitioner's claim that the Board was required to conduct a hearing under 1 Pa. Code § 35.180. We also must reject petitioner's final claim that the 30-day appeal period, as set forth in the Board's Rules of Practice and Procedure, 25 Pa. Code § 21.21, is merely directory and not mandatory. See Rostosky, supra.
Accordingly, we will enter the following
ORDER
NOW, March 10, 1978, the order of the Environmental Hearing Board, Docket No. 76-125-W, dated December 13, 1976, granting the motion of respondent Commonwealth of Pennsylvania, Department of Environmental Resources, to dismiss the appeal of petitioner Lebanon County Sewage Council for lack of jurisdiction, is hereby affirmed.