Brian Telegraphis v. Commonwealth, Dep’t of Envtl. Prot.

Full title: BRIAN TELEGRAPHIS v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF…

Court: Commonwealth of Pennsylvania Environmental Hearing Board

Date published: Aug 1, 2022

No. 2020-012-B (Pa. Cmmw. Ct. Aug. 1, 2022)

Opinion

2020-012-B

08-01-2022

BRIAN TELEGRAPHIS v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION

For the Commonwealth of PA: Brian Greenert, Esquire Michael Heilman Esquire For Appellant: Frank Magone, Esquire

Steven C. Beckman, Judge

For the Commonwealth of PA:

Brian Greenert, Esquire Michael Heilman Esquire

For Appellant:

Frank Magone, Esquire

OPINION AND ORDER ON APPELLANT'S MOTION TO COMPEL APPELLEE/DEP TO COMPLY WITH 25 PA. CODE SECTION 89.143a

Steven C. Beckman, Judge

Synopsis

The Board denies appellant's motion to compel where the Board finds that the Department's actions following remand by the Board are consistent with the remand.

OPINION

The Board issued a final Adjudication and Order in this matter on November 4, 2021 ("Adjudication"). The Adjudication granted Mr. Telegraphis' appeal and remanded the matter to the Department to determine whether mine subsidence caused damage to Mr. Telegraphis' commercial structure and, if subsidence had occurred, a determination of liability for the damage. Both parties acknowledge in their recent filings that the Department has undertaken a further investigation of the mine subsidence claim in accordance with our remand instructions and that the investigation is ongoing at this time. Mr. Telegraphis is apparently not satisfied with the Department's investigation and has filed a Motion to Compel Appellee/DEP to Comply with 25 Pa. Code Section 89.143a. ("Motion") seeking to have us direct the Department to comply with certain claim procedures. The Board has reviewed the parties' filings addressing the Motion and holds that the Motion is denied.

It is unclear whether the Board has continuing jurisdiction over this case and the remand activities following our issuance of the Adjudication back in November 2021 and we find that it is unnecessary for us to decide that question here. The actions taken by the Department following our Adjudication are consistent with the remand and appear to be reasonably aimed at determining the subsidence damage claim made by Mr. Telegraphis. The Board does not intend to micromanage that investigation and finds that the appropriate role for us at this point is to allow the process to play out until the Department has made a final determination on the claim. Any party that is aggrieved by the Department's eventual determination of whether mine subsidence caused damage to Mr. Telegraphis' commercial building may appeal that decision to the Board at the appropriate time in accordance with the Board's rules governing appeals of Department actions.

Therefore, we issue the following Order:

ORDER

AND NOW, this 1^st day of August 2022, following review of Mr. Telegraphis' Motion to Compel the Department to Comply with 25 Pa. Code Section 89.143(a) and his Brief in Support and the Department's Response and Memorandum in Support thereto, the motion is hereby denied.