Opinion
2022-022-CP-C
07-08-2022
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION v. DANIEL C. FROEHLICH II
For the Commonwealth of PA, DEP: Adam N. Bram, Esquire Peter A. Herrick, Esquire For Defendant: Daniel C. Froehlich II
For the Commonwealth of PA, DEP: Adam N. Bram, Esquire Peter A. Herrick, Esquire
For Defendant: Daniel C. Froehlich II
OPINION AND ORDER ON MOTION FOR ENTRY OF DEFAULT JUDGMENT
Michelle A. Coleman, Judge
Synopsis
The Board grants a motion for entry of default judgment where a defendant has not responded to the Department's complaint, a ten-day notice informing the defendant of the Department's intent to seek default judgment, or the motion for default judgment. The Board assesses a penalty against the defendant in the amount set forth in the Department's complaint.
OPINION
On March 24, 2022, the Department of Environmental Protection (the "Department") filed a Complaint for Assessment of Civil Penalties against Defendant Daniel C. Froehlich II alleging that Froehlich conducted earthmoving activities at his property in Plumstead Township, Bucks County without developing an erosion and sedimentation control plan or implementing adequate erosion and sediment control measures, and that he failed to stabilize the site. (Complaint at ¶ 1.) The Department claims that Frohlich's actions resulted in the potential pollution of waters of the Commonwealth, namely, Hickory Creek, a Trout Stock Fishery stream. (Id. at ¶¶ 1, 6.) The complaint seeks a penalty in the amount of $24,140.00 for alleged violations of the Clean Streams Law, 35 P.S. §§ 691.1 - 691.1001, and the erosion and sediment control regulations promulgated thereunder at Chapter 102 of Title 25 of the Pennsylvania Code.
Our Rules provide that complaints filed by the Department shall be served on the defendant by personal service or by certified or registered mail, 25 Pa. Code § 1021.71(b), and contain a notice of a right to respond or defend against the claims in the complaint, 25 Pa. Code § 1021.71(a) and (d). Answers to complaints are to be filed with the Board within 30 days of service of the complaint. 25 Pa. Code § 1021.74(a). Where a defendant fails to file an answer to a complaint, the defendant is deemed to be in default. 25 Pa. Code § 1021.74(d). A plaintiff may then file a motion for default judgment pursuant to 25 Pa Code § 1021.76a, and, upon entry of default judgment by the Board, the Board is authorized to assess civil penalties against the defendant in the amount of the plaintiff's claim. 25 Pa. Code § 1021.76a(d); DEP v. Jackson Geothermal HVAC and Drilling, LLC, 2016 EHB 397, 398; DEP v. Turnbaugh, 2014 EHB 124, 125; DEP v. Comp, 2012 EHB 343, 344; DEP v. White Oak Reserve Ltd. P'ship, 2012 EHB 75, 76-77; DEP v. Danfelt, 2011 EHB 839, 842; DEP v. Wolf, 2010 EHB 611, 613-15.
Following the docketing of the Department's complaint, we issued our Pre-Hearing Order No. 1-CP, which was mailed out to Froehlich and advised him that an answer to the complaint was to be filed with the Board within 30 days of service of the complaint. On April 1, the Department filed an amended certificate of service, wherein, through an attached affidavit, the Department averred that it personally served Froehlich with the complaint at his place of business on March 28, 2022. The amended certificate of service also contained a certified mail receipt showing that the complaint was left with an individual at Froehlich's home address on March 29. Accordingly, under our Rules, Froehlich's answer to the complaint was due by April 27, 2022. No answer was ever filed.
The Department has now filed a motion for the entry of default judgment seeking default judgment for Counts I - V in its complaint in the amount of $24,140.00. Under our Rules, such a motion must contain a certification that the Department served on the defendant a notice of intention to seek default judgment after the date on which the answer to the complaint was due and at least ten days prior to filing the motion. 25 Pa. Code § 1021.76a(b). Apparently wasting no time after Froehlich's answer was due, on April 28, 2022 the Department mailed to Froehlich a notice of intent to seek default judgment after ten days. (Motion, Ex. 2.) The ten-day notice was delivered at Froehlich's home the next day on April 29. (Motion, Ex. 4.) Froehlich did not respond to the notice or file his answer to the complaint within the ten-day time frame to correct the default. 25 Pa. Code § 1021.76a(c).
The certificate of service accompanying the Department's motion for default judgment says that the motion was personally served on Froehlich at his workplace on May 13. Another amended certificate of service filed by the Department on May 18 reflects that the motion was mailed out to Froehlich on May 16 and delivered to his home on May 17. It is unclear whether the service by mail was in addition to the earlier personal service or whether the original certificate of service was incorrect. Under our Rules, a document served by mail is deemed served three days after it is mailed, meaning here, May 19. 25 Pa. Code § 1021.35(b)(3). Giving Froehlich the full benefit of the 30-day time period to respond to a dispositive motion, 25 Pa. Code § 1021.94(c), and taking into consideration the weekend on which the 30-day response period ended, and the observation of Juneteenth, Froehlich had until June 21, 2022 to file a response to the motion.
To date, Froehlich has never answered the complaint, has not responded to the ten-day notice, has not responded to the motion for default judgment, and has not otherwise participated in this proceeding. Despite having had numerous opportunities, Froehlich has chosen not to defend himself against the complaint. We are left with no choice but to enter default judgment against Froehlich. Turnbaugh, 2014 EHB at 125; Comp, 2012 EHB at 344; White Oak Reserve, 2012 EHB at 77.
We do, however, note a discrepancy in the penalty amount between the Department's top line request of $24,140.00 and the total derived from adding up the amounts in the five counts of the complaint. Counts I and II seek civil penalties of $325.00 and $13,250.00, respectively, for various alleged violations of 25 Pa. Code § 102.4(b). (Complaint at ¶¶ 30-41.) Count III seeks a penalty of $2,600.00 for alleged violations of 25 Pa. Code § 102.22. (Id. at ¶¶ 42-48.) Count IV seeks a penalty of $5,280.00 for alleged violations of Section 402 of the Clean Streams Law, 35 P.S. § 691.402. (Id. at 49-52.) Count V seeks to recover $1,110.00 pursuant to Section 605(a) of the Clean Streams Law, 35 P.S. § 691.605(a), for costs and administrative fees allegedly incurred by the Bucks County Conservation District during its inspections of the Froehlich property. (Id. at ¶¶ 51-53.) Based on our calculations, the penalty amounts sought in the individual counts total $22,565.00, not $24,140.00. Therefore, we will assess a penalty of $22,565.00 as set forth in the five counts of the Department's complaint.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 8th day of July, 2022, it is hereby ordered that the Department's motion for entry of default judgment is granted. The Board assesses a civil penalty against the Defendant in the amount of $22,565.00.
THOMAS W. RENWAND Chief Judge and Chairman, MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge