Opinion
EHB 2024-091-CS
12-16-2024
LIZABELLA MINING, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
By Sarah L. Clark, Judge.
OPINION AND ORDER ON DEPARTMENT'S MOTION TO DISMISS
STEVEN C. BECKMAN, Chief Judge and Chairperson.
Synopsis
The Board grants a motion to dismiss where the appellant limited liability company is not an individual appearing on its own behalf and has failed to obtain counsel in accordance with the Board's Rules and Orders.
OPINION
Background
On March 7, 2024, the Department of Environmental Protection issued an Assessment of Civil Penalty ("Assessment") in the amount of $3,990 to Lizabella Mining, LLC ("Lizabella") - a Pennsylvania limited liability corporation with a mailing address listed as 47 Grudevich Road, Canonsburg, PA 15317 - for violations of the Clean Streams Law and the Surface Mining Conservation and Reclamation Act. Specifically, the Department alleged that Lizabella conducted earthmoving activities adjacent to and within the Fly Ash and Municipal Waste Area of Phoenix Reclamation Park in violation of the terms and conditions of Surface Mining Permit No. 63070202 (Phoenix Reclamation Park).
Dennis C. Sluciak, the sole owner of Lizabella, mailed a Notice of Appeal of the Assessment on April 6, 2024, which the Board docketed on April 15, 2024. On the same day, the Board issued its standard Prehearing Order No. 1. On April 26, 2024, the Board issued an Order Changing Caption to reflect the party to which the Department's assessment was directed: Lizabella.
On May 6, 2024, the Board issued an Order to Obtain Counsel requiring Lizabella to have an attorney enter an appearance in the appeal or file a statement addressing its progress toward obtaining counsel by June 7, 2024. On June 7, 2024, Lizabella docketed a letter requesting an extension of the deadline to obtain counsel. The Board issued an order on June 13, 2024 granting the request for additional time and requiring Lizabella to obtain counsel or file a statement addressing its progress on or before July 15, 2024. On July 16, 2024, Lizabella docketed another letter describing its unsuccessful efforts to obtain counsel. Lizabella did not request additional time to obtain counsel in its letter and, to date, no counsel has entered an appearance on behalf of the appellant.
The Department filed a motion to dismiss the appeal on July 18, 2024 on the grounds that Lizabella failed to prepay the civil penalty as required by the Clean Streams Law and Surface Mining Conservation and Reclamation Act, and failed to obtain counsel as required by the Board's regulations. Lizabella filed its Response on August 23, 2024, alleging that it is financially unable to prepay the assessed civil penalty, in addition to arguing that there is no need to obtain counsel, and that its impecuniousness would prevent it from doing so. The Department filed its Reply in support of its Motion to Dismiss the appeal on September 6, 2024. The Motion to Dismiss is now ripe for discussion.
Standard
The Board evaluates a motion to dismiss in the light most favorable to the non-moving party and only grants the motion where the moving party is entitled to judgment as a matter of law. Protect PT v. DEP, EHB Docket No. 2023-025-W, slip op. at 2 (Opinion and Order on Motion to Dismiss Jan. 10, 2024); Ritsick v. DEP, 2022 EHB 283, 284. When resolving a motion to dismiss, the Board accepts the non-moving party's version of events as true. Clean Air Council v. DEP, 2023 EHB 203, 206 (citing Pa. Fish and Boat Comm'n v. DEP, 2019 EHB 740, 741); Downingtown Area Regional Authority v. DEP, 2022 EHB 153, 155.
Discussion
By its Motion and in Reply to the appellant's Response, the Department argues that this appeal must be dismissed for two reasons: first, because the appellant failed to prepay the assessed civil penalty or file a verified statement claiming an inability to do so along with its Notice of Appeal, and second, because Lizabella, an LLC, has failed to obtain counsel as required by our Rules, which state that "parties, except individuals appearing on their own behalf, shall be represented by an attorney in good standing at all stages of the proceedings subsequent to the filing of the notice of appeal or complaint." 25 Pa. Code § 1021.21(a). As a limited liability company, Lizabella is not an individual appearing on its own behalf and, therefore, must be represented by counsel. As the Department points out, the Board has repeatedly held that a limited liability company's failure to obtain counsel will result in dismissal of an appeal. Earth First Recycling, LLC v. DEP, 2018 EHB 819; Waroquier Coal Co. v. DEP., EHB Docket No. 2024-007-BP, slip op. (Opinion and Order on Failure to Obtain Counsel issued May 17, 2024); Mann Realty v. DEP, 2015 EHB 110; Falcon Coal & Construction Co. v. DEP, 2009 EHB 209.
While Dennis Sluciak, the Sole Member and Manager of Lizabella, did initiate this appeal under his own name, the Department's action was addressed to Lizabella Mining, LLC only, and so this Board properly issued an Order changing the caption to reflect Lizabella, rather than Sluciak, as the appellant.
A corporation or limited liability company must be represented by legal counsel in judicial proceedings and may not appear pro se. The Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130 (Pa. Cmwlth. 2001; Walacavage v. Excell, 480 A.2d 281 (Pa. Super. 1984) ("a corporation may appear in court only through an attorney at law admitted to practice before the court. The reasoning behind the rule is that a corporation can do no act except through its agents and that such agents representing the corporation in Court must be attorneys at law who have been admitted to practice, are officers of the court and subject to its control. . . . [T]he purpose of the rule was not the protection of stockholders but the protection of the courts and the administration of justice. . . . [A] person who accepts the advantages of incorporation for his or her business must also bear the burdens, including the need to hire counsel to sue or defend in court.")
In Earth First, as here, the appeal was filed pro se and signed by an individual member of the LLC at issue. 2018 EHB 819-20. There, as here, the Board gave the appellant LLC three opportunities to obtain counsel prior to receiving a Motion to Dismiss from the Department. Id. at 820. Although Earth First was not responsive to the Board's orders, whereas Lizabella has been, Lizabella's responsiveness cannot overcome a regulatory requirement that contains no exception and is in place to prevent the unauthorized practice of law.
While the Board appreciates Mr. Sluciak's continued engagement with the appeal process and Board Orders, the fact of the matter is that Lizabella is a limited liability company that is required by Board regulations to be represented by counsel in order to continue with its appeal. The Board gave Lizabella several opportunities over many months to comply with the Board's Rules and it has failed to do so. Further, in its most recent filing to the Board, Lizabella indicated that it did not intend to obtain counsel, stating that "there is no need for [c]ounsel." (Response at 15.) Consequently, the Board grants the Department's Motion to Dismiss for failure to obtain counsel.
Because we dismiss on these grounds, the Board need not address the Department's endeavor to claim that an appellant's failure to prepay the assessed civil penalty or raise its alleged inability to prepay within the 30-day appeal period deprives the Board of jurisdiction to hear the appeal.
Therefore, we issue the following order.
ORDER
AND NOW, this 16th day of December, 2024, it is ordered that Lizabella Mining, LLC's appeal is dismissed.
ENVIRONMENTAL HEARING BOARD
BERNARD A. LABUSKES, JR. Judge, SARAH L. CLARK Judge, MARYANNE WESDOCK Judge, PAUL J. BRUDER, JR. Judge.