Concurring and Dissenting Opinion by
Judge Palladino:I agree with the majority’s holding that Culp’s superincumbent coal seams are not protected by the Bituminous Mine Subsidence and Land Conservation Act, Act of April 27, 1966, Special Sess., P.L. 31 §§1-21, as amended, 52 P.S. §§1406.1-1406.21 (Act). However, I disagree with the majority’s conclusion that Culp waived his theory that the Act protects unstructured surface rights.
The majority finds that this waiver was effected by statements made in Culp’s motion for reconsideration of the Environmental Hearing Board’s (Board) March 1, 1984, order which only dismissed that part of Culp’s appeal addressed to the superincumbent coal seam. At the time this motion was filed, the protection of Culp’s surface rights was not at issue but was merely the subject of dicta in the Board’s opinion. Culp’s willingness to stipulate that the surface was unstructured at this point in time does not constitute a waiver of his claim that the surface is protected even though unstructured. We must, therefore, address this claim on the merits.
Because I conclude that unstructured surface rights are protected by the Act, I would reverse that part of the Board’s order which dismissed Culp’s appeal with respect to the protection of his surface rights, and remand to the Board for a hearing on the merits of this aspect of the case.