          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Heywood Becker,                        :
                   Petitioner          :
                                       :
             v.                        :   No. 401 C.D. 2016
                                       :   Submitted: September 30, 2016
Department of Environmental            :
Protection,                            :
                 Respondent            :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                              FILED: December 19, 2016

             Heywood Becker, the trustee of Center Bridge Trust (Trust), petitions
for review of an order of the Environmental Hearing Board (Board) that denied his
request to reopen the record prior to the Board’s issuance of a final adjudication in
the Department of Environmental Protection’s (Department) action against the
Trust for violating Pennsylvania environmental laws. The Department requests the
Court to quash the appeal for lack of jurisdiction because the order appealed is
interlocutory. We agree and quash the petition for review.
             The Trust is the former owner of the subject property located at 7072
Upper York Road in Solebury Township, Bucks County, Pennsylvania (Property).
In 2013, the Department inspected the Property and found that the Trust had
rerouted a stream channel without a permit. It further determined that the Trust
caused accelerated erosion and sedimentation on the Property. The Department
issued an order to the Trust and Becker directing them to: (1) stabilize disturbed
areas on the Property by, inter alia, applying seed and mulch at three tons per acre;
(2) implement Best Management Practices relating to control of each disturbance
runoff on the Property; (3) submit an application for a permit, including a stream
restoration plan, to place the stream into its original location and restore the
impacted aquatic habitat; (4) submit an erosion and sedimentation control plan for
all work associated with the restoration plan; (5) implement the stream restoration
plan; and (6) permanently stabilize the Property.              Becker appealed the order,
alleging that he was unaware of any stream channel on the Property and that any
channel on the Property was merely a “dry swale.” Certified Record (C.R.), Item
1, at 2. He further argued that it was the uprooting of trees on the adjacent land
that caused the sedimentation. Hearings were held before the Board.
                At the hearing, Becker argued that the Department did not have
jurisdiction in this matter because the channel on the Property did not fall within
the definition of “stream” under the Clean Streams Law.1 Becker testified that the
channel had been “almost always dry,” and he “never believed [it] to be a stream.”
C.R., Item 9, at 488-90. Becker testified that the channel previously had stone
walls on both sides, which were washed away by Hurricane Irene in 2011. Id. at
465, 491. Fearing that future runoff “would go anywhere seeking its own course,”
Becker hired an excavation contractor to dig a new channel. Id. at 491. The
hearings concluded in 2014.
                In January 2016, prior to the Board’s issuance of a final adjudication
on his case, Becker petitioned the Board to reopen the record to introduce new
evidence.       The petition alleged that the current owner of the Property, Peter
Edwardson (Edwardson), had recently informed him that he met with an engineer


1
    Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.


                                                2
working for the Department, who, “upon close inspection of the subject swale,”
stated to Edwardson that “he could detect no evidence of any man-made changes to
the swale” and that “the swale appeared to have stabilized.” C.R., Item 10, at 1.
Becker requested the Board to allow him to present testimony from the engineer
because “if [the testimony] should prove to be the same as his said statements, [it]
would moot the charges brought by the [Department] against [Becker] in this
matter.” Id. Becker later identified the engineer as Pravin Patel.
              The Department objected, stating that it had interviewed all of its
employees who had been at the Property; none of them acknowledged making the
alleged statements. The Department further responded that Patel had “never been
to the [Property],” “never spoken to [ ] Edwardson,” and never opined on any issue
related to this case. C.R., Item 17, at 1. The Department submitted a sworn
statement executed by Patel, who attested that the facts recited in the Department’s
response were “true and correct to the best of [his] knowledge.” Id. at 3.
              The Board denied Becker’s petition, finding that he had not met the
requirements for reopening the record under Section 1021.133 of the Board
regulations, 25 Pa. Code §1021.133.2 C.R., Item 14. Becker filed a motion for


2
 Section 1021.133(b) of the Board regulations provides:
       (b) The record may be reopened upon the basis of recently discovered evidence
       when all of the following circumstances are present:
              (1) Evidence has been discovered which would conclusively
              establish a material fact of the case or would contradict a material
              fact which had been assumed or stipulated by the parties to be true.
              (2) The evidence is discovered after the close of the record and
              could not have been discovered earlier with the exercise of due
              diligence.
              (3) The evidence is not cumulative.
25 Pa. Code §1021.133(b).


                                            3
reconsideration, which the Board denied. Becker now petitions for this Court’s
review.
              On appeal, Becker argues that the Board erred in refusing to reopen
the record for the purpose of permitting him to present Patel’s testimony. The
Department responds that this Court lacks jurisdiction over this appeal because the
order in question is not a final order. Even assuming this Court had jurisdiction,
the Board did not abuse its discretion in denying Becker’s petition to reopen the
record and his motion for reconsideration.
              Initially, we consider whether the order at issue is immediately
appealable.     Generally, this Court’s appellate jurisdiction in Commonwealth
agency matters is limited to final orders, which are “orders that effectively put a
litigant out of court.” H.R. v. Department of Public Welfare, 676 A.2d 755, 758
(Pa. Cmwlth. 1996); 42 Pa. C.S. §763(a). Rule 341 of the Pennsylvania Rules of
Appellate Procedure further defines a final order as one that disposes of all claims
and of all parties, or that is entered as a final order pursuant to Pa. R.A.P. 341(c).
Pa. R.A.P. 341(b). Here, the Board denied Becker’s request to reopen the record,
but it has not yet rendered a final adjudication on the underlying enforcement
action by the Department. In other words, the order did not put Becker “out of
court.” Accordingly, the order is interlocutory in nature.
              Although interlocutory orders are not final, an appellate court may,
under certain circumstances, entertain an appeal from an interlocutory order taken
either as a matter of right, Pa. R.A.P. 313, or by permission, Pa. R.A.P. 312 and
1311.3 Rule 313(a) of the Pennsylvania Rules of Appellate Procedure provides:

3
   Becker requested that the Board certify its two orders, i.e., the order that denied Becker’s
petition to reopen the record and the order that denied his motion for reconsideration, for
(Footnote continued on the next page . . .)
                                              4
“[a]n appeal may be taken as of right from a collateral order of an administrative
agency ....” Pa. R.A.P. 313(a). A collateral order is appealable if all three of the
following requirements are met: “[(1)] [the order is] separable from and collateral
to the main cause of action[,] [(2)] where the right involved is too important to be
denied review and [(3)] the question presented is such that if review is postponed
until final judgment in the case, the claim will be irreparably lost.” Pa. R.A.P.
313(b). The requirements for appealing a collateral order must be interpreted
narrowly. “Narrow application prevents the collateral order rule from subsuming
the fundamental general precept that only final orders are appealable and from
causing litigation to be interrupted and delayed by piecemeal review of trial court
decisions.”     Township of Worcester v. Office of Open Records, 129 A.3d 44, 55
(Pa. Cmwlth. 2016) (citing Brophy v. Philadelphia Gas Works & Philadelphia
Facilities Management Corp., 921 A.2d 80, 87 (Pa. Cmwlth. 2007)).
               In determining whether an order is separable from and collateral to the
main cause of action, we must decide whether review of the order implicates the
merits of the main cause of action. Stated otherwise, we examine “whether the

(continued . . .)
interlocutory appeals with this Court. The Board denied Becker’s request, finding that the
criteria set forth for interlocutory appeals by permission were not satisfied. Rule 1311 provides
that “[a]n appeal may be taken by permission under 42 Pa. C.S. §702(b) (interlocutory appeals
by permission) from any interlocutory order of a lower court or other governmental unit.” Pa.
R.A.P 1311. Section 702(b) further provides that a government unit, in determining whether an
immediate interlocutory appeal is appropriate, must assess (1) whether the order involves a
controlling question of law; (2) whether there is substantial ground for difference of opinion over
the controlling question of law; and (3) whether an immediate appeal from the interlocutory
order may materially advance the ultimate termination of the matter. 42 Pa. C.S. §702(b). The
Board found that Becker did not explain how each of the criteria would apply in his case;
particularly, he failed to identify the controlling question of law for which he was seeking
review. Accordingly, the Board denied Becker’s request to certify its two orders for
interlocutory appeals by permission. C.R., Item 22, at 7.


                                                5
issues appealed can be addressed without analysis of the underlying claims on the
merits.” Id. When review of the order does not implicate or affect the merits of
the underlying claim, it is separable from and collateral to the main cause of action.
             As to the second prong, an issue is too important to be denied review
“if the interests that would potentially go unprotected without immediate appellate
review of that issue are significant relative to the efficiency interests sought to be
advanced by the final judgment rule.” Geniviva v. Frisk, 725 A.2d 1209, 1213 (Pa.
1999). “It is not sufficient that the issue be important to the particular parties.
Rather[,] it must involve rights deeply rooted in public policy going beyond the
particular litigation at hand.” Id. at 1214.
             Finally, under the third prong of the collateral order doctrine, an order
may be immediately appealed as a final order only if the question presented by the
order is such that if review is postponed until final judgment, the claimed right will
be irreparably lost. In other words, “the matter must effectively be unreviewable
on appeal from final judgment.” Commonwealth v. Wells, 719 A.2d 729, 730 (Pa.
1998).
             We agree with the Department that Becker cannot satisfy the
requirements for appealing a collateral order. Here, the Board’s order is separable
from, and collateral to, the underlying claim, i.e., whether Becker and the Trust
have violated the Clean Streams Law or the related regulations.             However,
Becker’s asserted right to reopen the record to introduce new testimony is not a
question that is “too important to be denied review.” Whether the Board should
reopen the record prior to the final adjudication to allow in new evidence is
important only to Becker; it is limited to the facts and circumstances of the
litigation at hand and does not implicate a right deeply rooted in public policy so as


                                           6
to warrant immediate appellate review. Finally, Becker’s proposed request to
reopen the record will not be irreparably lost if review of the Board’s order is
postponed until it renders its final adjudication. If the Board rules in favor of the
Department in the underlying enforcement action, Becker can still challenge the
Board’s denial of his request to reopen the record in an appeal to this Court.
Becker argues that the order is immediately appealable because waiting to raise the
issue in a later appeal of a decision rendered in the absence of the alleged newly-
discovered evidence is a waste of judicial resources. Petitioner’s Brief at 11. This
argument lacks merit because inconvenience or inefficiency alone does not
constitute irreparable loss. See Morgan Trailer Manufacturing Co. v. Hydraroll,
Ltd., 804 A.2d 26, 31 (Pa. Super. 2002); Keefer v. Keefer, 741 A.2d 808, 813 (Pa.
Super. 1999).
             In summary, the Board’s order denying Becker’s petition to reopen
the record to introduce new testimony prior to the Board’s issuance of a final
adjudication is not a final appealable order. Further, Becker has not satisfied the
requirements for an appealable collateral order. Lacking jurisdiction, we quash the
petition for review.

                                   _________________________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Heywood Becker,                   :
                  Petitioner      :
                                  :
           v.                     :   No. 401 C.D. 2016
                                  :
Department of Environmental       :
Protection,                       :
                 Respondent       :

                                ORDER

           AND NOW, this 19th day of December, 2016, the Petition for Review
filed by Petitioner Heywood Becker in the above-captioned matter is hereby
QUASHED.
                               _________________________________________________
                               MARY HANNAH LEAVITT, President Judge
