Opinion
2022-025-C
08-02-2022
CARL F. GROVE, JR., ET AL. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and RIDGE VIEW CAMPGROUND, Permittee
For the Commonwealth of PA, DEP: Dennis Yuen, Esquire David N. Smith, Esquire For Appellants: Carl F. Grove Jr., Ken Stewart, Andrew Grove, John Shovlin, Kristen A. Grove, Brenda S. Grove, and Randall L. Grove: Paul J. Bruder, Jr. Esquire Richard Norris Peter Prince Gloria Miller Joseph Biddle Joe Dinardi For Permittee: Mark Lingousky, Esquire
For the Commonwealth of PA, DEP:
Dennis Yuen, Esquire
David N. Smith, Esquire
For Appellants:
Carl F. Grove Jr., Ken Stewart, Andrew Grove, John Shovlin, Kristen A. Grove, Brenda S. Grove, and Randall L. Grove:
Paul J. Bruder, Jr. Esquire
Richard Norris
Peter Prince
Gloria Miller
Joseph Biddle
Joe Dinardi
For Permittee:
Mark Lingousky, Esquire
OPINION AND ORDER ON RULE TO SHOW CAUSE
Michelle A. Coleman, Judge
Synopsis
The Board dismisses several appellants from an appeal where they have not provided the Board with a mailing address to effectuate service upon them and they have not indicated their interest in continuing with the appeal or otherwise participated in these proceedings.
OPINION
On May 3, 2022, the Board received a notice of appeal on our notice of appeal form from a group of Appellants. On the appeal information page, which requests the name, address, and telephone number of the appellant, three names were listed: Carl F. Grove, Jr., Ken Stewart, and Andrew Grove, along with their phone numbers and email addresses, but without any mailing addresses. The appeal form was signed by Carl F. Grove, Jr. Although no action of the Department of Environmental Protection (the "Department") was attached to the appeal, the appeal form identified the action under appeal as an approval to construct a transient noncommunity water system in Juniata Township, Huntingdon County. However, two pages were attached to the form with the heading of "Juniata Township Residents Appealing DEP decision on New Transient Noncommunity Water System for Ridgeview Campground." The pages contained the printed names and signatures of 22 additional people along with their phone numbers. Seven of the people also included their email addresses. We docketed the appeal as having been filed by all 25 Appellants.
The 22 names were: Mary Alleman, Joseph Biddle, Harlan Byers, Patricia Byers, Rob Cresswell, Joe Dinardi, Ken Fouse, Brenda Grove, Kristen Grove, Randall Grove, Gloria Miller, McKenzie Miller, Richard Norris, Gisela Peace, Ralph Peace, Rachel Peters, Cheryl Prince, Peter Prince, Bill Shank, Doris Shank, John Shovlin, and Chad Snare.
On May 9, 2022, we received another copy of the notice of appeal form, but this time it was submitted and signed by counsel, David A. Ody, Esquire, and it contained a cover letter and attached the action under appeal-an April 5, 2022 letter from the Department approving Ridge View Campground's application to construct a new transient noncommunity water system with certain special conditions, along with the Department's review memorandum. The notice of appeal form was otherwise identical to the one we received days earlier, with the same three Appellants listed on the first page of the form and the same additional sheets with the 22 other Appellants. We docketed the May 9 notice of appeal form as an amended notice of appeal and listed Mr. Ody as counsel for all 25 Appellants.
On May 13, 2022, Mr. Ody filed a praecipe to withdraw his appearance as to all of the Appellants. On May 20, the Department filed a response to the praecipe to withdraw. The Department noted that Mr. Ody's withdrawal would leave the 25 Appellants without counsel. The Department pointed to our Rule at 25 Pa. Code § 1021.23 governing a withdrawal of appearance and its requirement that a motion be filed to withdraw an appearance if the appearance of new counsel is not simultaneously entered. The Department noted that, in leaving the Appellants unrepresented, Mr. Ody did not provide the Board with a single contact person for future service as required by 25 Pa. Code § 1021.23(c). The Department stated that, without a single contact person, it would not be able to serve all 25 Appellants since none of them provided a mailing address and only a handful provided an email address. The Department requested that the Board hold a conference call before deciding the praecipe to withdraw.
On May 26 we issued an Order scheduling a conference call on June 1. We served the Order on the Department via our electronic filing system, on Mr. Ody via e-mail, and on Ridge View Campground (which at that point was unrepresented) via first class mail. Staff from the Board then placed phone calls to all 25 of the Appellants to inform them of the conference call and provide them with the information to dial into the call. Board staff spoke with several of the appellants directly and left voice messages with the rest. One of the Appellants, Ken Fouse, informed the Board staff that he would not be participating in the call and no longer wished to be involved in the appeal. Another of the Appellants, Carl Grove, stated that he would walk around the community to make sure other Appellants had the information for the call.
We held the call on the afternoon of June 1. Participating in the call were Mr. Ody, counsel for the Department, counsel for Ridge View Campground, and the following Appellants: Carl Grove, Andrew Grove, Ken Stewart, Richard Norris, Peter Prince, Cheryl Prince, John Shovlin, Brenda Grove, Randall Grove, and Harlan Byers. The remaining 15 Appellants did not participate in the call. On the call, for the benefit of the Appellants, we explained how the Board functions and how the appeal process plays out. We also explained the representation rules and that appellants can proceed pro se and represent their own individual interests, but that a non-attorney could not individually represent the interests of an entire group of people.
Addressing the praecipe to withdraw, Mr. Ody explained that he only sent in the notice of appeal documents on behalf of Appellant Joseph Biddle, not the other Appellants. He stated that he only agreed to send in the notice of appeal form because the appeal deadline was approaching, and that it was his understanding that the Appellants would be obtaining counsel that had more familiarity with environmental law. Mr. Ody said Appellant Carl Grove had advised him that the Appellants had obtained other counsel and Mr. Ody had requested that Mr. Grove have that person enter an appearance in the matter.
Mr. Grove, who signed the original notice of appeal form, stated on the call that some of the Appellants were in discussion with Attorney Paul Bruder and that documents were being finalized for the representation. Mr. Grove also stated that some people who signed the "petition" that was submitted with the notice of appeal form no longer wanted to continue with the appeal process because of financial reasons and concerns over legal liability. Mr. Grove further stated that he released Mr. Ody from representing him and any of the other Appellants, and that it was the intention of the Appellants to obtain the services of Paul Bruder. At the conclusion of the conference call, we obtained the mailing addresses of those Appellants participating in the call. However, some of the Appellants exited the call without providing their mailing address.
Following the call, we issued an Order requiring the Appellants to obtain new counsel, or to provide a list of the names of the Appellants who wished to proceed with the appeal and appear on their own behalf along with their mailing addresses and telephone numbers. We gave the Appellants until June 15, 2022 to comply. We served the Order on all of the Appellants whose addresses we obtained on the conference call.
On June 13, Paul J. Bruder, Jr., Esquire entered an appearance on behalf of the following Appellants: Carl F. Grove, Jr., Ken Stewart, Andrew Grove, John Shovlin, Kristen A. Grove, Brenda S. Grove, and Randall L. Grove. We did not receive any correspondence from any of the other Appellants by June 15 indicating a desire to proceed pro se. On June 17, we issued an Order granting Mr. Ody's withdrawal from the appeal.
On June 29, 2022, we issued a Rule to Show Cause wherein we noted that no individual Appellants had responded to our June 1 Order requiring them to inform us if they wished to proceed in this appeal pro se. We gave the unrepresented Appellants until July 20, 2022 to provide us with a statement indicating their intention to proceed with the appeal along with their mailing address. We warned the Appellants that they risked having the appeal dismissed as to them if they did not respond. We mailed out the Rule to Show Cause to the unrepresented Appellants whose addresses we had and we emailed it to those whose email addresses we had from the notice of appeal form. To date, none of the unrepresented Appellants has responded to our Order or Rule to Show Cause or has expressed any interest in continuing with the appeal.
Under our Rules, an appellant is required to provide their name, mailing address, e-mail address, and telephone number when they file their notice of appeal. 25 Pa. Code § 1021.51(c). Under 25 Pa. Code § 1021.52(b), a failure to provide this information provides grounds for dismissal: "The appellant shall, within 20 days of the mailing of a request from the Board, file missing information required under § 1021.51(c), (d) and (k) (relating to commencement, form and content) or suffer dismissal of the appeal." There is an obvious reason why our Rules require appellants to provide their contact information: without a mailing address we cannot serve our orders or opinions on the Appellants. Nor can the other parties to this appeal serve the Appellants with discovery or other communications. Having a means by which to serve a party with documents is foundational to any legal proceeding.
We have frequently dismissed appeals when an appellant has failed to perfect their appeal by providing all of the necessary information and then does not respond to subsequent orders of the Board requesting that information. See McAuliffe v. DEP, EHB Docket No. 2021-101-B (Opinion and Order, July 13, 2022) (dismissing appeal where appellant failed to perfect appeal by serving it on the Department and a mining company and appellant seemed to lose interest in the appeal); King v. DEP, EHB Docket No. 2021-102-L (Opinion and Order, Jan. 24, 2022) (dismissing appeal where appellants failed to provide any information required for a notice of appeal under 25 Pa. Code § 1021.51 and indicated they were no longer interested in pursuing their appeal). We often find that an appellant does not express any interest in continuing to participate in the appeal process and we are forced to dismiss the appeal.
Here, many of the Appellants did not perfect their appeal by providing us with a mailing address. We have attempted to reach these Appellants by phone and email. Many chose to ignore our Order to participate in the conference call and have subsequently ignored our requests to provide us with a mailing address and a statement that they want to continue with this appeal. Of the two unrepresented Appellants who gave us their address, neither has responded to our June 1 Order or our Rule to Show Cause. We have no choice but to conclude that the 18 unrepresented Appellants no longer wish to be involved in the appeal. The overall appeal will continue with the represented Appellants, but it will not include the Appellants who have chosen not to engage in the process and/or perfect their appeal by providing the Board and the other parties with a means by which to effectuate service.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 2nd day of August, 2022, it is hereby ordered that the following Appellants are dismissed from this appeal: Mary Alleman, Joseph Biddle, Harlan Byers, Patricia Byers, Rob Cresswell, Joe Dinardi, Ken Fouse, Gloria Miller, McKenzie Miller, Richard Norris, Gisela Peace, Ralph Peace, Rachel Peters, Cheryl Prince, Peter Prince, Bill Shank, Doris Shank, and Chad Snare. The caption of the appeal will remain the same.
THOMAS W. RENWAND Chief Judge and Chairman
MICHELLE A. COLEMAN Judge
BERNARD A. LABUSKES, JR. Judge
STEVEN C. BECKMAN Judge