Opinion
2022-036-C
08-22-2022
PAUL RITSICK AND DONNA DUBICK, EXECUTOR OF THE ESTATE OF DAVID G. DUBICK v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Ann T. Conserette, Esquire For Appellants: Paul Ritsick
For the Commonwealth of PA, DEP: Ann T. Conserette, Esquire
For Appellants: Paul Ritsick
OPINION AND ORDER ON MOTION TO DISMISS
Michelle A. Coleman, Judge
Synopsis
The Board denies a motion to dismiss filed by the Department. The Department has not shown that one of the Appellants lacks standing or that the appeal should be dismissed due to a lack of counsel on behalf of the Appellants.
OPINION
On May 20, 2022, the Board received a notice of appeal by fax filed by Paul Ritsick and Donna Dubick, Executor of the Estate of David G. Dubick (collectively, the "Appellants"), proceeding pro se. On May 26, we received by mail a notice of appeal with additional documentation that we docketed as an amended appeal. The Appellants have appealed a letter from the Department of Environmental Protection (the "Department") issued to Butler Township in Luzerne County, in which the Department determined that a subdivision proposed by the Appellants is not eligible for an exemption from full sewage facilities planning and a revision to Butler Township's Act 537 Plan. The letter denied the Appellants' application for the planning exemption. The Appellants argue in their appeal that the Department erred in denying the application and they assert that the subdivision does qualify for a planning exemption under the Sewage Facilities Act, 35 P.S. §§ 750.1 - 750.20a, and the sewage planning regulations, specifically 25 Pa. Code § 71.51.
The Appellants' notice of appeal and amended notice of appeal were signed by Paul Ritsick but not Donna Dubick. According to the notice of appeal, Mr. Ritsick and Ms. Dubick are cousins. At the beginning of the notice of appeal form is the following statement, where Mr. Ritsick says that he is filing the appeal "on behalf of" Ms. Dubick:
I am filing this appeal on behalf of my cousin, Donna Dubick who is the Executor of the Estate of David G. Dubick. The property to be subdivided is currently owned by the Estate. Donna is undergoing treatment for cancer and had asked me to file this appeal on her behalf. Mr. Brutosky the engineer/surveyor who submitted the original "mailer" application to DEP is recovering from recent heart surgery. I am very familiar with all matters concerning the Estate and the subdivision proposal.(Notice of Appeal at 1.) Almost exclusively based on this statement, the Department has now filed a motion to dismiss the appeal, arguing that Mr. Ritsick lacks standing to be an appellant and that he cannot represent Ms. Dubick since he is not an attorney. The Department asserts that the Appellants' lack of counsel requires dismissal of the appeal. The Appellants have filed a response opposing the Department's motion. The Appellants argue that Mr. Ritsick does have standing to pursue this appeal, that he is not representing Ms. Dubick, and that Ms. Dubick is representing herself. The Department elected not to file a reply brief in support of its motion as permitted under our Rules. See 25 Pa. Code § 1021.94(d). For the reasons explained below, we deny the Department's motion.
The Board evaluates a motion to dismiss in the light most favorable to the non-moving party and will only grant the motion where the moving party is entitled to judgment as a matter of law. Downingtown Area Regional Auth. v. DEP, EHB Docket No. 2021-127-L, slip op. at 3 (Opinion and Order, Apr. 5, 2022); Burrows v. DEP, 2009 EHB 20, 22. For the purposes of resolving motions to dismiss, the Board accepts the non-moving party's version of events as true. Lawson v. DEP, 2018 EHB 513, 514-515; Consol Pa. Coal Co. v. DEP, 2015 EHB 48, 54 (citing Ehmann v. DEP, 2008 EHB 286, 390). A motion to dismiss will be granted only when a matter is free from doubt. Muth v. DEP, EHB Docket No. 2022-015-B, slip op. at 2 (Opinion and Order, June 3, 2022); Bartholomew v. DEP, 2019 EHB 515, 517.
Standing
If the issue of standing "is raised in a motion to dismiss early in the case, we essentially accept all of the appellant's allegations as true and decide whether the opposing party is nevertheless entitled to judgment as a matter of law." Giordano v. DEP, 2000 EHB 1184, 1187. A person has standing if they have a substantial, direct, and immediate interest in the outcome of the appeal. Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009); Wilson v. DEP, 2014 EHB 1, 2. Thus, a person must have an interest that is greater than the abstract interest of all citizens in having others comply with the law, and there must be a sufficiently close causal connection between the person's interest and the actual or potential harm associated with the challenged action. Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016); William Penn Parking Garage v. City of Pittsburgh, 346 A.2d 269, 282 (Pa. 1975). In other words, there must be "some discernable adverse effect" to a person's interest and that interest must not be remote. William Penn Parking, 346 A.2d at 282, 286; Borough of Glendon v. Dep't of Envtl. Prot., 603 A.2d 226, 231 (Pa. Cmwlth. 1992). "The keystone to standing…is that the person must be negatively impacted in some real and direct fashion." Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005).
The Department asserts that, in the Appellants' notice of appeal, Mr. Ritsick does not "claim to be or show he is directly impacted by the Denial Letter." (DEP Memo. at 4.) Therefore, the Department concludes, "Mr. Ritsick does not have standing to challenge this matter, and the appeal should be dismissed." (Id.) In their response to the Motion to Dismiss, the Appellants say that Mr. Ritsick does have standing because he has lent the Estate of David G. Dubick tens of thousands of dollars. They say there is a promissory note between the Estate and Mr. Ritsick to provide funds to the Estate and that Mr. Ritsick will be paid back once the Estate property is sold. There is some suggestion in the response that the property will not be sold until the subdivision is completed, which is contingent on the sewage needs being addressed.
The Department appears to take the position that the entire appeal should be dismissed if Mr. Ritsick lacks standing, not that only Mr. Ritsick should be dismissed from the appeal.
As we have said repeatedly now, an appellant is not required to plead standing in a notice of appeal. "There is no requirement in the Board's rules requiring an appellant to aver facts sufficient to show that it has standing in its notice of appeal." Winner v. DEP, 2014 EHB 135, 140 (quoting Ziviello v. DEP, 2000 EHB 999, 1003). In Winner, we denied a motion to dismiss filed by the Department seeking to dismiss an appeal due to an alleged lack of standing. We found that the Department was mistaken to simply rely on what was contained in a notice of appeal to make its standing challenge, and pointed out that no discovery had been conducted:
It is additionally important to note the current procedural posture of this matter. The Department proceeded to file its Motion to Dismiss relying exclusively on the alleged shortcomings in Winner's Notice of Appeal. The Department did not attach any discovery responses from Appellant Winner regarding the issue of standing to its motion, and the Board has no indication whether the Department has conducted any discovery in the matter.Winner, 2014 EHB at 140-41.
The same is true here. We have no indication that the Department conducted any discovery before filing its motion. The Department has not attached any exhibits to its motion or provided anything in support of its claim that Mr. Ritsick does not have standing beyond the above-quoted statement from the notice of appeal. "A motion to dismiss made prior to any discovery even having been taken is obviously too early to dispositively determine the question of standing." Cooley v. DEP, 2004 EHB 554, 559. We do not need to decide here whether or not Mr. Ritsick has standing. It is enough to find that, viewing the motion in the light most favorable to the Appellants, as we are required to do, the Department has not met its burden to show that Mr. Ritsick does not have standing and this appeal should be dismissed for that reason.
Representation
Under our Rules, "[p]arties, 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). The Department's contention that Ms. Dubick must obtain counsel consists of a single paragraph in its memorandum of law, the bulk of which is a quote of the above rule and a citation to another Board case without any analysis. The entirety of the Department's argument is essentially this one sentence: "Since Mr. Ritsick is not an attorney, Ms. Dubick is required to obtain counsel, or the appeal should be dismissed for a violation of Board Rule 1021.21(a)." (Memo. at 3.) We note that this argument is somewhat inconsistent with a statement in the Department's motion that "Ms. Dubick must represent herself or obtain counsel to proceed in this matter before the Board." (Mot. at ¶ 7 (emphasis added).)
The Appellants say that Mr. Ritsick is not representing Ms. Dubick as her attorney. The Appellants maintain that Ms. Dubick is appearing on her own behalf and representing herself. They say that Mr. Ritsick is "assisting" Ms. Dubick because Ms. Dubick was not physically or mentally capable of filing the appeal due to ongoing medical treatments and that Mr. Ritsick "will continue to assist Ms. Dubick." (Resp. at ¶¶ 6, 8.)
Other than relying on the statement from the notice of appeal, the Department has not shown that Ms. Dubick is not representing herself, or that Mr. Ritsick is effectively acting as her counsel. We are not convinced based on the notice of appeal statement alone that Mr. Ritsick is in fact "representing" Ms. Dubick. With that said, we are not sure what the Appellants mean when they say Mr. Ritsick is "assisting" Ms. Dubick. The Department has not provided any analysis in its motion of exactly what constitutes the unauthorized practice of law. See generally Harkness v. Unemployment Comp. Bd. of Review, 920 A.2d 162, 166-67 (Pa. 2007) (broadly discussing what may constitute the practice of law). While we are not unsympathetic to Ms. Dubick's medical condition, if she is representing herself, she needs to be engaged in these proceedings. For instance, in the settlement statement filed by the Department in accordance with Paragraph 5 of our Pre-Hearing Order No. 1 issued in this case, the Department's letter states, "Mr. Paul Ritsick, Appellant, confers [sic] with the above statement." (Docket Entry No. 6.) It does not reflect Ms. Dubick's participation in the settlement discussions or her concurrence in the statement filed by the Department on behalf of the parties.
However, even if we were, at this juncture, to find that Mr. Ritsick is "representing" Ms. Dubick in this matter, the likely immediate remedy would not be the outright dismissal of this appeal, but rather to tell him to stop, or to afford the Appellants a reasonable period of time in which to obtain legal counsel. See Bisher v. Lehigh Valley Health Network, Inc., 265 A.3d 383, 409 (Pa. 2021) ("We adopt the view that any instance of unauthorized practice of law is curable in the court's discretion pursuant to the principles outlined herein.").
The Department's motion does not address anything regarding the Estate of David G. Dubick. The notice of appeal form does not appear to identify the Estate as an appellant. We do not know whether Mr. Ritsick and Ms. Dubick are advancing the interests of the Estate or their own, individual interests. See, e.g., Bisher, 265 A.3d at 390 ("Conceptually, the estate itself is the plaintiff and, for largely the same reasons that corporate entities must be represented by a lawyer, an attorney must represent the estate."). Attachment E to a letter attached to the Appellants' amended notice of appeal appears to be the application for planning exemption that was submitted to the Department. The "Name of Development" is listed as "Dubick Estate Minor Subdivision." However, the "Developer Name" is listed as Donna Dubick. This suggests that it might be Ms. Dubick and not the Estate itself seeking the planning exemption. Here again, discovery could potentially shed some valuable light.
Even if it has not been shown at this point that one or more of the Appellants is required to be represented by counsel, we think that the Appellants might nevertheless benefit from having counsel. See 25 Pa. Code § 1021.21(c) (individuals may appear on their own behalf but "are encouraged to appear through counsel"). The Pennsylvania Bar Association's Environmental and Energy Law Section offers assistance in securing pro bono representation to qualifying individuals. Information regarding the pro bono program is contained in the instructions appended to the Board's notice of appeal form. The pro bono program does have its restrictions:
In order to initially qualify for consideration for pro bono representation under the PBA [Pennsylvania Bar Association] program, the pro se party must meet certain requirements, including having limited financial resources. Parties are usually asked to provide relevant financial information, including tax returns, from which the PBA pro bono coordinator can determine the eligibility of the party for consideration for pro bono representation. Many pro se parties fail to provide the relevant financial information or otherwise do not meet the program guidelines for representation and therefore, no referral is made. Even if the pro se party meets the program requirements, there is no guarantee that pro bono counsel willing to represent the party will be found to handle the matterSchlafke v. DEP, 2013 EHB 386, 388-89 (footnote omitted). However, it still may be worthy of the Appellants' exploration as this appeal moves forward.
In short, the Department's motion fails to meet the standard for a motion to dismiss to convince us that Mr. Ritsick lacks standing as an appellant, that Mr. Ritsick is acting to represent the interests of Ms. Dubick, or that either Ms. Dubick or Mr. Ritsick is required to obtain legal counsel.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 22nd day of August, 2022, it is hereby ordered that the Department's motion to dismiss is denied.