Opinion
2022-068-L
06-27-2023
SALVATORE PILEGGI v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Sean L. Robbins, Esquire For Appellant: David E. Romine, Esquire
For the Commonwealth of PA, DEP: Sean L. Robbins, Esquire
For Appellant: David E. Romine, Esquire
OPINION AND ORDER ON MOTION TO COMPEL
BERNARD A. LABUSKES, JR. Judge
Synopsis
The Board denies an appellant's motion to compel seeking the identity of any person who filed a complaint with the Department or conservation district regarding the appellant's property because it has not been shown to be relevant to the validity of the Department order under appeal.
OPINION
Salvatore Pileggi has appealed an administrative order issued to him by the Department of Environmental Protection (the "Department") on August 11, 2022 following inspections conducted by the Lackawanna County Conservation District (the "Conservation District") in 2021 and 2022 of property owned by Pileggi in Newton Township, Lackawanna County. The order alleges that Pileggi conducted earth disturbance activities on his property without first obtaining an NPDES permit, without implementing appropriate best management practices (BMPs) or stabilizing the site, and without developing an erosion and sedimentation control plan. The order requires Pileggi to cease any earth disturbance activity, implement appropriate BMPs, and submit an erosion and sedimentation control plan and an NPDES permit application to the Conservation District. In his notice of appeal, Pileggi broadly denies the allegations in the order, asserting among other things that he was repairing flood damage, that he was conducting road maintenance activities that are exempt from regulation, and that any activity he conducted was under the one-acre threshold for a permit. He also contests the order's characterization of his property as a subdivision and says it is instead a farm containing his home.
Pileggi has now filed a motion to compel the Department to more fully respond to certain discovery requests that he served on the Department. The discovery at issue involves two interrogatories and one request for the production of documents. Interrogatory 4 states that two of the Conservation District's inspection reports say the inspections were conducted in response to a complaint and the interrogatory asks if the complainant(s) were "Newton Township Officials, an employee or anyone holding any position related to the Township." Interrogatory 5 then asks the Department to identify the complainant(s). Document Request 8 requests all documents and communications related to any complaints regarding Pileggi and his property. The Department objected to these requests in its answer to Pileggi's discovery, asserting that the identity of any complainants was not relevant or reasonably calculated to lead to the discovery of admissible evidence. The Department also contended that the identity of a complainant is information that is protected from discovery.
Pileggi's motion asks the Board to overrule the Department's objections and to compel the Department to reveal the name of any person who lodged a complaint with the Department regarding Pileggi's property. Pileggi argues that there is no privilege to withhold a complainant's identity in a non-criminal case, and that there is no public policy prohibiting the disclosure of a person who submits a complaint to the government. The Department in its response argues that the identity of complainants is privileged information, and that the information is not relevant or reasonably calculated to lead to the discovery of admissible evidence. The Department maintains that it and the Conservation District determined that there were violations at the Pileggi property independently of any complainant allegations, and that the Department does not intend to rely on any information or testimony from any complainant to prove the violations at the hearing on the merits. For the reasons that follow, we deny Pileggi's motion.
Discovery before the Board is governed by the relevant Pennsylvania Rules of Civil Procedure. 25 Pa. Code § 1021.102(a). Generally, a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action and appears reasonably calculated to lead to the discovery of admissible evidence. Pa.R.Civ.P. 4003.1. The standard for the discoverability of information "is not that the information sought is reasonably calculated to lead to the discovery of relevant evidence; the standard is that the information sought must in fact be relevant." PQ Corp. v. DEP, 2017 EHB 707, 708 (citing Pa.R.Civ.P. 4003.1(a); City of Allentown v. DEP, 2017 EHB 315). No discovery may be obtained that is sought in bad faith or would cause unreasonable annoyance, embarrassment, oppression, burden, or expense with regard to the person from whom discovery is sought. Pa.R.Civ.P. 4011; Haney v. DEP, 2014 EHB 293, 296-97. "[T]he Board is charged with overseeing ongoing discovery between parties during the litigation and has wide discretion to determine appropriate measures necessary to insure adequate discovery while at the same time limiting discovery where required." Northampton Twp. v. DEP, 2009 EHB 202, 205.
When a discovery dispute arises, we must make an assessment of the relevancy of the material at issue. PQ Corp., 2017 EHB at 708-09; City of Allentown, 2017 EHB at 324; Cabot Oil & Gas Corp. v. DEP, 2016 EHB 20, 24. In a motion to compel, the moving party needs to put forth a threshold showing of the relevance of the information sought. Only then, after the party seeking the discovery makes some showing of potential relevance, will the burden shift to the party objecting to the discovery request to demonstrate its right to refuse to produce the requested information. PQ Corp. at 709 (citing Consol Pa. Coal Co. v. DEP, 2015 EHB 505, 506; Wallace Twp. v. DEP, 2002 EHB 841, 844; Estate of Charles Peters v. DER, 1991 EHB 653, 656). See also Pozsgai v. DER, 1990 EHB 1250, 1252 (mere allegation of relevance from moving party, standing alone, is insufficient). Before we even reach any questions of privilege or assess the respective burdens on the parties in fulfilling a discovery request, the information sought above all must be relevant to the subject matter of the appeal.
The fundamental problem with Pileggi's motion is he never explains why the identity of the complainants, and whether or not they have some association with Newton Township, is somehow relevant in this appeal. Pileggi has filed this appeal from an order. The Board's responsibility in performing our de novo review is centered on determining whether the Department, in issuing its order, acted reasonably, in accordance with the law, consistent with its constitutional responsibilities, and whether the action is supported by the facts. See Stocker v. DEP, 2022 EHB 351, 363. "Therefore, in order to be relevant, information sought in discovery must have a reasonable potential to shed light upon whether the Department's action was lawful, reasonable, supported by the facts and consistent with its constitutional responsibilities." Logan v. DEP, 2016 EHB 801, 805.
Pileggi does not say what information he hopes to glean from any complainant that would help him show that the Department's order is not supported by the facts or law. Indeed, Pileggi never discusses the relevance of a complainant's identity at all in his three-page motion or two-page brief in support of the motion. Instead of telling us why he needs to know the identity of complainants, Pileggi makes public policy arguments. However, we have no need to get into policy debates if the information at issue is not even relevant.
It is not for the Board to speculate on the possible relevance of information sought in discovery. Logan, 2016 EHB at 805 (it is not the Board's "job to imagine possible relevance"). It is certainly not self-evident why the identity of any complainants has any relevance in this appeal. The appeal will focus on such things as whether the earth disturbance activities were conducted in accordance with applicable regulatory requirements or not. For example, what BMPs were legally and factually required, and if required, were they properly implemented? Similarly, was an NPDES permit required? Were the remedial actions mandated by the order reasonable and in accordance with the law? It is simply not readily apparent how the identity of complainants could possibly factor into the resolution of such straightforward and regulatory issues, even if it were the Board's responsibility to discern relevance, which it is not.
Pileggi's approach in his motion can be explained (but not excused) by the Department's similarly heavy albeit not exclusive reliance on public policy considerations in its communications with Pileggi leading up to the motion. But the fact that the parties engaged in an interesting policy debate does not change the fact that we will not compel the disclosure of irrelevant material in discovery. It was up to Pileggi to explain the relevance of the information and he failed to do so.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 27th day of June, 2023, it is hereby ordered that the Appellant's motion to compel is denied.