Opinion
2021-052-B
10-18-2023
CRAIG HIGH v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For Appellant: Philip L. Hinerman, Esquire (via electronic filing system)
For Appellant: Philip L. Hinerman, Esquire (via electronic filing system)
By Steven C. Beckman, Chief Judge and Chairperson
OPINION AND ORDER ON THE DEPARTMENT'S MOTION TO STRIKE EXHIBITS
STEVEN C. BECKMAN, CHIEF JUDGE
Synopsis
The Board grants in part and denies in part the Department's motion to strike three exhibits. The Board grants the motion where two of the exhibits were not introduced at the time of the hearing on the merits. While the other exhibit was also not introduced at the hearing, the exhibit itself is referenced in the Department's own regulations and in the Department's post-hearing brief, making it appropriate for the Board to consider.
OPINION
This matter involves the appeal of a compliance order that the Department of Environmental Protection ("the Department") issued to Craig High ("Mr. High"), citing violations arising from work he conducted on his farm property. The Department alleged that Mr. High violated certain requirements of Chapter 105 and the Dam Safety and Encroachments Act and ordered him to restore an excavated ditch and to develop and implement an erosion and sediment control plan or conservation plan. Mr. High appealed the Department's order and a hearing on the merits was held before the Environmental Hearing Board ("the Board") on May 17, 2023, and May 18, 2023. The Department and Mr. High filed their post-hearing briefs on August 11, 2023, and September 15, 2023, respectively. On September 29, 2023, the Department filed its reply brief and, in addition, filed a Motion to Strike Exhibits ("the Motion") from Mr. High's post-hearing brief. Mr. High filed his Response in Opposition to the Motion ("the Response") on October 10, 2023.
Mr. High attached four exhibits to his post-hearing brief, designated as Exhibit A, B, C, and D. In its Motion, the Department opposes the introduction of Exhibits B, C, and D, arguing that these exhibits should be struck since Mr. High failed to introduce them as evidence at the time of hearing. The Department does not contest Exhibit A attached to Mr. High's post-hearing brief as it was introduced during the hearing. Mr. High argues in the Response that none of the contested exhibits provide any new evidence or facts for the Board to consider and, therefore, the Board should deny the Department's Motion. We will discuss each of these Exhibits in turn below.
Exhibit B is a public record from the Congressional Research Service describing the history of the "prior converted cropland" designation. The Department asserts that the Board's caselaw holds that testimony and exhibits that were not presented at the hearing cannot be included in a party's post-hearing brief, and cites Newlin Corp., et al., v. DER, 1989 EHB 453, in support of that position. Mr. High argues that the document is publicly available and, as such, the Board can take judicial notice of it despite the fact it was not presented at the hearing. Our rules provide that the Board may take official notice of matters which may be judicially noticed by the courts of the Commonwealth. 25 Pa. Code § 1021.125. It is further recognized that Pennsylvania courts have "the right to take judicial notice of public documents." Bykowski v. Chesed, Co., 625 A.2d 1256, 1258 (Pa. Super. 1993). However, the Board's rules explicitly state that a party requesting that the Board take official notice of a document after the conclusion of the hearing "shall do so in accordance with § 1021.133 (relating to reopening of the record prior to adjudication)." 25 Pa. Code § 1021.125(c). Mr. High did not follow this rule when he attached the document to his post-hearing brief and this failure supports our decision to strike this exhibit. Further, Exhibit B is dated February 24, 2023 and was thus available to Mr. High long before the hearing took place in mid-May of 2023. This document could have been discovered prior to the close of the record at the hearing with the exercise of due diligence by Mr. High or his counsel. The proper legal procedure would have been to introduce Exhibit B into evidence at the time of the hearing, allowing greater context to be afforded to it by the testifying witness, while also allowing the Department to cross-examine the witness regarding the exhibit. Finally, Mr. High suggests that Exhibit B was provided for the Board's convenience so that we may save time conducting research outside of the record before us. The Board has previously stated that "[a]lthough the Code of Judicial Conduct does not apply to us (see 207 Pa. Code Ch. 33, Canons, Application at Paragraph (2)), it nevertheless sets forth a set of worthy goals that we strive to emulate." DEP v. EQT Production Co., 2014 EHB 797, 799. Rule 2.9(c) of the Code provides that "[a] judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed." 207 Pa. Code Part II, Ch 33, Subch A, Rule 2.9(c). Keeping this rule in mind, the Board is wary to expand the breadth of the record through our own independent research, even in relation to public records. The burden rests on the parties to make their respective cases and it is their duty to produce evidence at the appropriate times during the hearing before the Board. For all of the stated reasons, we conclude that the proper course of action for the Board is to strike Exhibit B as the Department requests in its Motion.
We turn next to Appellant's Exhibit C which is an excerpt from the National Food Security Act Manual, Third Edition ("NFSA Manual"). Like Exhibit B, Exhibit C was not introduced during the hearing. However, as Mr. High points out, this document is referenced in the Department's own regulations pertaining to the status of prior converted cropland. In 25 Pa. Code § 105.452(c), the NFSA Manual is explicitly mentioned and provides that the Department recognizes the terms "prior converted cropland" and "normal circumstances" as they are defined in the NFSA Manual. Because the NFSA Manual is referenced in the Department's own regulations (admitted as Exhibit A-8) and is clearly relied upon by the Department in defining the terms in its own regulations, we conclude it is an appropriate document for the Board to review on its own accord despite the fact the NFSA Manual and the specific portions attached as Exhibit C were not presented as an exhibit at the hearing. Further supporting our decision is the fact that the NFSA Manual is referenced in the Department's own post-hearing brief. The Department's post-hearing brief repeatedly discusses and quotes extensively from the Board's decision in DEP v. Seligman, 2014 EHB 755. See DEP's Post-Hearing Brief at 23-28. The quotes from the Seligman decision relied on by the Department specifically discuss the NFSA Manual. See DEP's Post-Hearing Brief at 23 ("Relying on the definition contained in the National Food Security Act Manual (3d ed. 1994)"); at 25 ("This distinction is consistent with the [National Food Security Act Manual (3d ed. 1994)]"). For the stated reasons, the Board denies the Department's Motion to strike Exhibit C.
Lastly, we consider Mr. High's Exhibit D which is an affidavit of his expert witness, Robert A. Baines. Mr. High states in the Response that the affidavit was attached to clarify that the opinions provided by Mr. Baines were offered with a reasonable degree of certainty and explains he felt the need to include this clarifying affidavit because the Department had stated in its post-hearing brief that Mr. Baines had in fact not testified that his opinions were given with a reasonable degree of certainty. The Department argues that this is Mr. High's "attempt to introduce testimony not presented at the hearing on the merits by incorporating it into an affidavit attached to a post- hearing brief." DEP's Memorandum in Support of its Motion at 2. We agree with the Department and will not accept testimony presented through Exhibit D when such testimony should have been presented at the hearing. While we grant the Department's Motion as to Exhibit D, we also hold that the absence of "magic words" like "reasonable degree of scientific certainty" or "reasonable degree of certainty" does not necessarily discount or reduce the weight of Mr. Baines' testimony. In the City of Harrisburg v. DER, and Pennsylvania Fish and Boat Commission, 1996 EHB 709, the Department argued that the City's expert's testimony should have been discounted because the expert failed to express that the opinions were held to a reasonable degree of scientific certainty. This Board disagreed and reasoned "[i]t is well-settled that in order to be competent, expert testimony must be stated with reasonable certainty. Al Hamilton Contracting Co. v. DER, 659 A.2d 31 (Pa. Cmwlth. 1995). However, an expert's failure to recite the words "to a reasonable degree of scientific certainty" does not render his testimony inadmissible so long as his testimony is expressed with reasonable certainty. Id. at 36-37. See also, Kravinsky v. Glover, 396 A.2d 1349, 1356 (1979) (An expert need not express his opinion in precisely the same language as we use to enunciate the legal standard.)" Id. at 715-16. In Blythe Township and FKV, LLC v. DEP and Borough of St. Clair, 2011 EHB 433, the Board affirmed this position stating "there is actually no absolute requirement that the phrase "reasonable degree of scientific certainty" be used at the hearing, … so long as the testimony, when taken in context and a whole, reflects the requisite level of confidence. Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990)." at 435. Therefore, while we agree with the Department that Exhibit D was an improper attachment to Mr. High's post-hearing brief and should be struck, we find that the testimony that Mr. Baines presented during the hearing was expressed with the requisite level of confidence to evidence his competency as an expert in the areas that he was admitted for at the hearing and we will credit his testimony as such in reaching our decision in this matter.
We do not intend by this to suggest to counsel that they should abandon in any way the practice of eliciting testimony from their experts that the opinions offered by the expert were held to a reasonable degree of scientific certainty.
In sum, the Board accepts the introduction of Mr. High's Exhibit C, as that document is mentioned and relied upon in the Department's regulations and in the Department's post-hearing brief. We do not accept Exhibit B or D attached to Mr. High's post-hearing brief as part of our record in this case. We view those documents as an attempt to provide additional evidence and testimony that should have been presented at the time of the hearing. If Mr. High wishes the Board to consider additional evidence not presented at the hearing, his proper recourse is to petition the Board to reopen the record as is described in section 1021.133 of our rules, not through attaching new exhibits to his post-hearing brief.
Therefore, we issue the following Order:
ORDER
AND NOW, this 18th day of October, 2023, it is hereby ORDERED as follows:
1. The Department's motion to strike in regard to Mr. High's Exhibits B and D is granted.
2. The Department's motion to strike as it pertains to Mr. High's Exhibit C is denied.