Liberty Twp. v. Commonwealth

Full title: LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF…

Court: Commonwealth of Pennsylvania Environmental Hearing Board

Date published: Apr 3, 2023

No. 2021-007-L (Pa. Cmmw. Ct. Apr. 3, 2023)

Opinion

2021-007-L

04-03-2023

LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee

DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Angela N. Erde, Esquire Douglas G. Moorhead, Esquire Dearald Shuffstall, Esquire (via electronic filing system) For Appellants: Lisa Johnson, Esquire Marc T. Valentine, Esquire (via electronic filing system) For Permittee: Alan Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire (via electronic filing system)

BERNARD A. LABUSKES, JR. Board Member and Judge

DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)

For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Angela N. Erde, Esquire Douglas G. Moorhead, Esquire Dearald Shuffstall, Esquire (via electronic filing system)

For Appellants: Lisa Johnson, Esquire Marc T. Valentine, Esquire (via electronic filing system)

For Permittee: Alan Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire (via electronic filing system)

By Bernard A. Labuskes, Jr., Board Member and Judge

OPINION AND ORDER ON TRI-COUNTY LANDFILL'S MOTION IN LIMINE TO PRECLUDE APPELLANTS FROM CALLING TRI-COUNTY'S EXPERTS AS WITNESSES AND/OR INTRODUCING THEIR EXPERT REPORTS IN THEIR CASE-IN-CHIEF

BERNARD A. LABUSKES, JR. Board Member and Judge

Synopsis

The Board grants a permittee's motion in limine seeking to preclude the appellants from calling the permittee's experts as part of the appellants' case-in-chief and to preclude the appellants from introducing the permittee's experts' reports as part of the appellants' case-in-chief.

OPINION

Liberty Township and Citizens Environmental Association of Slippery Rock Area, Inc. ("CEASRA") (the "Appellants") have appealed the issuance of a major permit modification to TriCounty Landfill ("Tri-County") by the Department of Environmental Protection (the "Department"). The permit authorizes Tri-County to operate a municipal waste landfill in Liberty and Pine Townships, Mercer County, within the boundary of an inactive landfill that was operated by Tri-County from 1950 to 1990. The hearing on the merits in this matter is set to begin on April 5. In advance of the hearing, the parties have filed numerous motions in limine. The purpose of a motion in limine is to provide the Board with an opportunity to consider potentially prejudicial evidence and rule on the admissibility of such evidence before it is referenced or offered at trial. Penn Twp. Mun. Auth. v. DEP, 2021 EHB 72, 73; Kiskadden v. DEP, 2014 EHB 634, 635. See also 25 Pa. Code § 1021.121 ("party may obtain a ruling on evidentiary issues by filing a motion in limine").

In this motion in limine, Tri-County seeks to prevent the Appellants from calling TriCounty's expert witnesses to testify as part of the Appellants' case-in-chief, and from using TriCounty's experts' reports during the Appellants' case-in-chief. Tri-County acknowledges that the Appellants are free to cross-examine any of Tri-County's experts that Tri-County calls to testify as part of Tri-County's case-in-chief, and that the Appellants may use the experts' CVs and expert reports during the cross-examination.

The Appellants in their response and accompanying memorandum of law have not addressed any of Tri-County's arguments. The only substantive answer in the Appellants' response and memorandum is that the Appellants only listed Tri-County's experts as witnesses "to ensure they can call as to cross in the event TCL [Tri-County] does not call such experts in their case-in-chief pursuant to the Pennsylvania Rules of Evidence." (App. Resp. at 5.) In the wherefore clause of their response, the Appellants ask that we grant in part and deny in part Tri-County's motion:

Appellants respectfully requests [sic] that this Honorable Board grant in part this Motion in Limine to Preclude Appellants from calling Tri-County's experts in Appellants' case-in-chief or using or introducing Tri-County's expert reports or curriculum vitae as evidence in Appellants' case-in-chief and deny in part such that Appellants are not precluded from calling Tri-County's experts as to cross and introducing Tri-County's expert reports or curriculum vitae as evidence related to Appellants calling such experts as to cross.

(App. Resp. at 6.)

The Appellants cannot do what they are attempting to reserve the right to do in their response for procedural reasons. The Appellants bear the burdens of production and proof. 25 Pa. Code § 1021.122(c). They are required to make a prima facie case by the close of their case-in-chief. 25 Pa. Code § 1021.117(b). The Appellants will not know whether Tri-County is going to call its experts until after the Appellants' case is closed. The Appellants do not have the right to wait and see if Tri-County calls the witnesses in Tri-County's case-in-chief and then call them later. If the Board allows any rebuttal at all, it is usually very limited. It would not encompass calling major new witnesses such as the opposing parties' experts. A party with the burden of production that does not call a witness in its case-in-chief must bear the risk that the witness will not testify. No party should ever count on being permitted to put on new testimony on rebuttal. In short, the Appellants' attempted reservation does not provide a basis for denying Tri-County's motion in limine.

Accordingly, we issue the Order that follows.

ORDER

AND NOW, this 3^rd day of April, 2023, it is hereby ordered that Tri-County Landfill's Motion in Limine to Preclude Appellants from Calling Tri-County's Experts as Witnesses and/or Introducing their Expert Reports in their Case-in-Chief is granted.