Otte v. Covington Tp. Road Sup'rs

• Decision Date: 18 November 1994
• Parties: Otho M. OTTE and Irene Otte and Clarence Kubrick and Charmaine Kubrick v. COVINGTON TOWNSHIP ROAD SUPERVISORS, Clarence Kubrick and Charmaine Kubrick. Otho M. OTTE and Irene Otte and Clarence Kubrick and Charmaine Kubrick v. COVINGTON TOWNSHIP ROAD SUPERVISORS, Otho M. Otte and Irene Otte. Appeal of COVINGTON TOWNSHIP ROAD SUPERVISORS. (Two Cases)
• Court: Pennsylvania Supreme Court

Page 412

650 A.2d 412

539 Pa. 44

Otho M. OTTE and Irene Otte and Clarence Kubrick and Charmaine Kubrick v. COVINGTON TOWNSHIP ROAD SUPERVISORS, Clarence Kubrick and Charmaine Kubrick.

Otho M. OTTE and Irene Otte and Clarence Kubrick and Charmaine Kubrick v. COVINGTON TOWNSHIP ROAD SUPERVISORS, Otho M. Otte and Irene Otte.

Appeal of COVINGTON TOWNSHIP ROAD SUPERVISORS. (Two Cases)

Supreme Court of Pennsylvania.

Argued Sept. 22, 1994.

Decided Nov. 18, 1994.

Charles E. Gutshall, Timothy M. Anstine, Rhoads & Sinon, Harrisburg, Barbara H. Schickling, Clearfield, for appellants.

Stanley R. Geary, Buchanan Ingersoll, P.C., Pittsburgh, for appellees.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

In this case, the Commonwealth Court reversed the order of the Court of Common Pleas of Clearfield County, 149 Pa.Cmwlth. 467, 613 A.2d 183. The trial court had affirmed a decision of the Covington Township Road Supervisors (the Appellants herein) denying the Appellees' permit application for on-lot sewage treatment systems. For the reasons set forth below, we affirm the decision of the Commonwealth Court.

In the summer of 1983, Appellees, the Ottes, acquired lots 49 and 50; and Appellees, the Kubricks, acquired lot 53; and all three lots are located in the new Sandy Creek Forest Development (Sandy Creek), Covington Township, Clearfield County, Pennsylvania. Each lot is slightly larger than ten acres. Under a provision of the Pennsylvania Sewage Facilities Act (Act) at 35 P.S. § 750.7(b)(4), a sewage facilities plan "revision" must be submitted to, and approved by, the Pennsylvania Department of Environmental Resources (DER) for new subdivisions such as Sandy Creek. If this is not done, issuance of permits for on-lot sewage treatment systems is generally prohibited, subject to certain limited exceptions. Sandy Creek's developer never submitted a plan "revision" to the DER, hence, unless one of the exceptions to the Act, set forth at 35 P.S. § 750.7(b)(5), applies, on-lot sewage systems are forbidden in the development.

In September, 1987, Appellees submitted a request to DER (later supplemented by documentation) for an exception to the on-lot sewage permit ban for lots 49, 50 and 53, pursuant to § 7(b)(5)(i) of the Act. By letter dated December 1, 1989 (over two years later), and sent to the Appellants (with a copy to Appellees' attorney and to the Covington Township Solicitor), an official in DER's Bureau of Water Quality Management notified Appellants in admittedly imprecise language that it had granted the requested exception to Appellees. The grounds for granting the exception were essentially that DER felt itself estopped, by representations made to Appellees' attorney, from denying the exception, which in any case was limited to only the three lots in question. Appellants did not appeal this determination to the Environmental Hearing Board (EHB) in spite of the fact that the Environmental Hearing Board Act, at 35 P.S. § 7514(c), provides in pertinent part that:

... no action of the Department [DER] adversely affecting a person shall be final as to that person until the person has had the opportunity to appeal the action to the board under subsection (g). If a person has not perfected an appeal in accordance with the regulations of the board, the department's action shall be final as to the person.

Under 25 Pa.Code § 21.52(a), a person has thirty days from the receipt of "written notice of such action" to appeal to the EHB.

Having obtained the exception, Appellees next submitted on-lot sewage permit applications to the Clearfield County Sewage Committee, which had been delegated the authority to issue these permits by Covington Township Ordinance No. 83-1. Lots 49, 50 and 53 were inspected by a Township sewage enforcement officer, who found that the lots satisfied all DER requirements including those set forth at 25 Pa.Code, C. 73. Chapter 73 contains the design, site characteristics, and other standards for sewage disposal facilities. The permit applications themselves were also reviewed by an enforcement officer and were found to meet DER regulations. Nonetheless, after a hearing, Appellants issued a letter decision dated June 8, 1990, denying the permits on the general grounds that to do so without further tests and documentation would endanger the public health and safety. Appellees appealed de novo to the Court of Common Pleas of Clearfield County and that Court, after taking testimony, entered an order affirming the denial of the permits in question. When Appellees appealed to the Commonwealth Court, the trial court did not issue an opinion in support of its decision as requested by Appellees and as required by Pa.R.A.P. 1925(a). ¹ Instead, the trial judge, in a letter to Appellees' attorney dated July 10, 1991, summarily rested his decision, as he had in his original brief order in the case, on a memorandum opinion he wrote in the tangentially related case of Quehanna-Covington-Karthaus Area Authority, et al. v. Sandy Creek Forest, Inc., et al., No. 85-19-EQU. ² In Quehanna, the trial judge enjoined the lot owners in the Sandy Creek Forest development, inter alia, from installing or operating any sewage facilities at any lots in the development until valid permits were issued. The memorandum opinion appears to have nothing to do with the instant case except that it is based on broad concerns about public health and safety, grounds on which Appellant's decision in the instant litigation also appear to rest. As already noted, the Commonwealth Court reversed, holding that Appellees were entitled to have the requested permits issued to them. We agree.

It is a reproach to our legal system that the simple request for three septic system permits at issue here is now on at least its fifth layer of court and governmental review, and that this matter has taken over seven years to process and is still not resolved! We granted allocatur in this case because we were concerned about the possible misapplication of fundamental principles of administrative law on the face of the record and because we were concerned that the trial court had apparently violated Pa.R.A.P. 1925(a) by not issuing findings of fact or a statement of reasons or an opinion detailing that court's decision.

Appellants raise three issues and we will take them up in reverse order to that employed in Appellants' brief to this Court. First, we do not approve or sanction the trial court's violation here of the spirit, if not the letter, of Pa.R.A.P. 1925(a). Mere cross-reference to a substantially unrelated opinion is less than minimal compliance with the rule. Nonetheless, the Commonwealth Court was within its rights not to order a remand. Only questions of law are involved in this appeal and on such questions an appellate court must be and is free to resolve such questions de novo.

Second, Appellants are correct to point out that a governmental agency in this Commonwealth may not be estopped from enforcing the law because of mistakes of its employees or its lawyers. See, Commonwealth v. Barnes and Tucker Co., 455 Pa. 392, 319 A.2d 871 (1974). DER's letter of December 1, 1989, was therefore most likely incorrect in its reasoning and result since it was based on a theory of agency estoppel. Nonetheless, the letter constituted a decision by DER essentially in the...