Opinion
EHB 2021-101-B
07-13-2022
THOMAS J. MCAULIFFE v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
OPINION AND ORDER ON DISMISSAL OF APPEAL
Steven C. Beckman, Judge
Synopsis
The Board dismisses the Appeal of Appellant, Thomas J. McAuliffe, where Appellant has demonstrated an intent not to pursue the appeal and has otherwise failed to follow Board rules and orders.
OPINION
Thomas J. McAuliffe ("Mr. McAuliffe") filed a pro se Notice of Appeal ("the Appeal") with the Environmental Hearing Board ("the Board") on October 26, 2021. The Appeal was filed on the Board's Notice of Appeal Form, was hand-written and difficult to read in places. In paragraph 2 of the Notice of Appeal Form that asks the appellant to describe the action of the Department of Environmental Protection ("the Department") for which the appellant is seeking review, Mr. McAuliffe provided the following: "I do not agree with the decision by Maurice Gardner from the mine [i]nsurance that the subsidence that occurred in my yard and damaged my pool was not caused by the mine 10 feet below the surface." (Mr. McAuliffe's Notice of Appeal at 1). It appeared from the Appeal, that Mr. McAuliffe failed to serve the Department, the Department officer that took the action, and the mining company involved in Mr. McAuliffe's claim of mine subsidence, as the corresponding boxes that indicate method of service to these interested parties were not checked. On October 26, 2021, the Board issued its standard Prehearing Order No. 1. ("PHO-1") and an Order to Perfect the Appeal, ordering Mr. McAuliffe to serve the Department and the relevant mining company on or before November 15, 2021. The Department's counsel entered their appearance on November 1, 2021. The involved mining company never entered an appearance. On December 15, 2021, the Department filed a letter describing a settlement discussion with Mr. McAuliffe per the Board's PHO-1. The letter stated that the Department conducted a telephone call with Mr. McAuliffe on November 9, 2021, where Mr. McAuliffe indicated that he did not intend to pursue his Appeal. On January 31, 2022, Board's Assistant Counsel, Alisha Hilfinger ("Ms. Hilfinger"), emailed Mr. McAuliffe to verify whether or not he intended to pursue his appeal any further. In a return email, Mr. McAuliffe responded that he did not intend to pursue the Appeal. Ms. Hilfinger informed Mr. McAuliffe that if he did not wish to continue with the Appeal, the proper next step would be to submit a notice to withdraw to the Board. Mr. McAuliffe did not respond to this email or file a notice to withdraw to the Board. On June 13, 2022, after the deadlines for discovery and dispositive motions had passed, the Board scheduled a conference call with the parties on June 21, 2022. On the day of the call, Mr. McAuliffe failed to participate. On June 22, 2022, the Board issued a Rule to Show Cause, ordering Mr. McAuliffe to explain why his Appeal should not be dismissed as a sanction for failing to comply with the Board's Order to Perfect and for failing to comply with the Board's Order to participate in a conference call, or alternatively, requiring him to perfect his appeal on or before June 30, 2022. As of the date of this Opinion and Order, Mr. McAuliffe has failed to respond to the Board's Rule to Show Cause, it appears he has not served the mining company, nor has he filed a notice to withdraw the Appeal.
The Board's rules authorize sanctions upon parties for failing to abide by Board orders and/or the Board's rules of practice and procedure. Slater v. DEP, 2016 EHB 380, 381, citing 25 Pa. Code § 1021.161. Included within these sanctions is the dismissal of an appeal. Further, the Board has consistently held that where a party has shown a demonstrable disinterest in proceeding with an appeal, dismissal is appropriate. Slater, 2016 EHB 381, citing Mann Realty Associates, Inc. v. DEP, 2015 EHB 110, 113; Casey v. DEP, 2014 EHB 908, 910-911; Nitzschke v. DEP, 2013 EHB 861, 862.
As is evident from the facts above, Mr. McAuliffe has failed to comply with three Orders of the Board and seems to have lost interest in pursuing his case. Initially, Mr. McAuliffe failed to serve the Department and the interested mining company a copy of his Appeal by November 15, 2021. Despite being afforded additional time by the Rule to Show Cause, Mr. McAuliffe still has not served a copy of his appeal to the interested mining company or provided an explanation as to why the Board should not dismiss the Appeal. Mr. McAuliffe did not file a response to the Board's Rule to Show Cause, nor did he file a request for more time following either the Order to Perfect, or the more recently issued Rule to Show Cause. An appellant's perfection of its appeal is an important step in proceeding in front of the Board. Mr. McAuliffe's failure to serve the mining company as required by the Order to Perfect, or in response to the Rule to Show Cause, his failure to participate in the June 21 conference call, and in addition, the email exchange Ms. Hilfinger conducted with Mr. McAuliffe, shows a clear intent not to proceed with the Appeal. When a party demonstrates an intent to no longer continue an appeal, we have found it is appropriate to consider the dismissal of the appeal. Nitzschke, 2013 EHB 861, 862. Mr. McAuliffe's apparent lack of interest in proceeding with his case, along with his failure to follow the Board rules and three prior Orders make it appropriate for us to dismiss this case. Based on the foregoing, the Board dismisses this appeal and issues the following Order.
ORDER
AND NOW, this 13th day of July, 2022, it is hereby ordered that the Appeal is dismissed and the docket shall be marked as closed.
THOMAS W. RENWAND Chief Judge and Chairman, MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge