Peggy Ann Gardner v. Commonwealth

Before us are consolidated appeals arising from the efforts of a property owner to seek compensation for coal rights under land that was taken as part of Moraine State Park. This is the second time this case has been before this court. In Gardner v. Department of Environmental Resources, 145 Pa. Commonwealth Ct. 345, 603 A.2d 279 (1992) (Gardner I) we determined that the taking issue was not ripe for adjudication because Peggy Ann Gardner, Mary Jane Eckert and Barbara Judge (collectively, Gardners) did not request a variance under the statute prohibiting the mining of the coal from the Commonwealth of Pennsylvania, Department of Environmental Resources (DER). Before us today are DERs appeal of the order of the Court of Common Pleas of Butler County (trial court) finding that the case was ripe for adjudication and appointing a Board of Viewers to determine damages. We also have Gardners cautionary petition for review of an order of the Environmental Hearing Board (EHB) deciding that the case is not yet ripe for determination because Gardners had not exhausted their administrative remedies necessary to determine whether a taking had occurred.