Opinion
2022-009-B
04-20-2022
WHITE TAVERN v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Christopher Ryder, Esquire
For the Commonwealth of PA, DEP: Christopher Ryder, Esquire
OPINION AND ORDER ON DISMISSAL OF APPEAL
Steven C. Beckman, Judge
Synopsis
The Board dismisses the Appeal of Appellant, White Tavern, where Appellant has demonstrated an intent not to pursue the appeal and has otherwise failed to follow Board rules and orders.
OPINION
White Tavern filed a pro se Notice of Appeal ("the Appeal") with the Environmental Hearing Board ("the Board") on February 24, 2022. The Appeal was filed on the Board's Notice of Appeal Form, was hand-written and difficult to read in places. It listed the appellant as White Tavern but also listed Kevin Warchol ("Mr. Warchol") in paragraph 1 where the form asks for name, address, etc., of the Appellant. (White Tavern Notice of Appeal at 1). 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, White Tavern provided the following: "The use of my existing well[.] My setbacks are within guidelines[.] Never measured by DEP[…] I measured them, pipe can be extended the 18" additionally." (White Tavern Notice of Appeal at 1). White Tavern failed to attach a copy of the Department action that it was seeking to challenge in the Appeal. On February 24, 2022, the Board issued its standard Prehearing Order No. 1. In an effort to better understand the nature of the appeal as well as who were the proper appellants, the Board also issued an Order to Perfect the Appeal, ordering White Tavern to file a copy of the Department action being appealed on or before March 16, 2022. White Tavern did not file any response to the Board's Order to Perfect by the scheduled deadline. After the deadline to perfect, the Board's Assistant Counsel, Alisha Hilfinger ("Ms. Hilfinger"), contacted Mr. Warchol to assist with any procedural questions that the pro se Appellant may have regarding its Appeal. During the call, Mr. Warchol indicated that White Tavern did not intend to pursue the Appeal any further. Ms. Hilfinger told Mr. Warchol that if White Tavern did not want to continue with the Appeal, the proper next step would be to submit a notice to withdraw to the Board. On March 28, 2022, after having not received any further filings from White Tavern, the Board issued a Rule to Show Cause, ordering White Tavern to explain why its Appeal should not be dismissed as a sanction for failing to comply with the Board's Order to Perfect, or alternatively, requiring him to file a copy of the Department action being appealed on or before April 11, 2022. As of the date of this Opinion and Order, White Tavern has failed to either respond to the Board's Rule to Show Cause or submit a copy of the Department action being appealed nor has it 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, White Tavern has failed to comply with two Orders of the Board and seems to have lost interest in pursuing its case. Initially, White Tavern failed to file a copy of the Department action to Perfect its Appeal by March 16, 2022. Despite being afforded additional time by the Rule to Show Cause, White Tavern still has not filed a copy of the Department action or provided an explanation as to why the Board should not dismiss the Appeal. White Tavern did not file a response to the Board's Rule to Show Cause, nor did White Tavern 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. White Tavern's failure to file a copy of the Department's action as required by the Order to Perfect, or in response to the Rule to Show Cause, and in addition, the conversation Ms. Hilfinger conducted with Mr. Warchol, 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. White Tavern's apparent lack of interest in proceeding with its case, along with its failure to follow the Board rules and two 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 20th day of April, 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