J. P. Pecora, et al. v. Environmental Hearing Board (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John P. Pecora, James D. Pecora, Ann Pecora Grego, Elizabeth Pecora, Jay J. Pecora, and Philip A. Pecora, Petitioners v. Environmental Hearing Board, Respondent BEFORE: : : : : : : : : : No. 2036 C.D. 2007 : Submitted: February 15, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: March 19, 2008 Philip A. Pecora petitions for review of an order of the Environmental Hearing Board that assessed penalties against Pecora (who resides on the subject property discussed below) and the landowners (who are Pecora s children), in the amount of $18,500 for failure to comply with an order of the Department of Environmental Protection directing the Pecoras to restore Minard Run, a watercourse designated an exceptional value, and part of which is located on the subject property, to its original condition after earth moving activities conducted on the property, that were performed without necessary permits, damaged the stream channel. By way of background, Mr. Pecora s difficulties with the Department of Environmental Protection present a complicated history. Pertinent to this discussion, the Board made findings summarized as follows. The Department inspected the property at various times between 1998 and 2005, when the Department first issued an order to the Pecoras directing them to restore the site to its original condition. The activities on the property included grading and excavation of Minard Run which caused severe sedimentation of the stream. The Board determined that the activities resulted in severe damage to Minard Run, including destruction to the habitat such that the stream would not function as an exceptional value watercourse. The February 2005 order, which the Pecoras did not appeal, directed them to: (1) hire a professional to design a re-stabilization plan; (2) submit permit applications for the proposed re-stabilization; and (3) restore the stream upon the Department s approval of the plan. After the Pecoras failed to comply with the order, the Department filed an action with this Court seeking an order to compel the Pecoras compliance. In June 2005, Philip Pecora entered a consent decree with the Department which included admissions by him regarding the above-noted factual and procedural background and which also noted that the failure by Philip Pecora and the landowners to comply constituted a violation of various environmental laws that subjected Philip Pecora and the landowners to civil penalties. Philip Pecora complied with the terms of the consent decree and restored and re-stabilized Minard Run by September 29, 2005. However, the Board determined that the Pecoras failure to comply with the February 2005 order 2 was intentional and that the delay in compliance caused continuing damage to Minard Run. The Board filed a complaint with the Board on April 10, 2006 seeking civil penalties in the amount of $75,500 based upon the Pecoras failure to comply with the Department s order. Philip Pecora s counsel entered an appearance on April 28, 2006 and filed an answer to the complaint. The Department filed a summary judgment motion on November 29, 2006 to which the Pecoras did not file a response. The Board granted the motion in part, concluding that the Pecoras were subject to civil penalties because of their failure to comply with the Department s February 2005 order. The Board scheduled a hearing for the purpose of determining the amount of civil penalties to be imposed. The Pecoras counsel filed a motion for reconsideration of the summary judgment order, which the Board denied. The Pecoras then filed a motion to set aside the complaint, which the Board also denied. The Department filed a pre-hearing memorandum in accordance with an order dated June 2, 2006; however, the Pecoras did not submit a pre-hearing memorandum, and the Board thereafter issued a rule to show cause why sanctions should not be imposed because of the failure to file the memorandum. The Pecoras did not respond to this rule to show cause, and the Board issued an order precluding the Pecoras from presenting their case on the issue of penalties. During a telephonic pre-hearing conference, counsel for the Pecoras indicated that the Pecoras would not attend the hearing. Based upon its findings of fact, and the view that the amount the Department was asking for was too high, the Board awarded civil penalties of $18,500 against the Pecoras. The Board opined that, although the Pecoras were 3 recalcitrant in their conduct, although the law would permit an award of hundreds of thousands of dollars, and although Minard Run is an exceptional value watercourse, the amount the Department requested appeared to reflect undue consideration of facts and circumstances that go beyond the sole Count in the ¦ complaint. At the outset, we must note that Mr. Pecora is acting pro se in this matter. We observe that, while Mr. Pecora s brief contains captions for all the required elements of a brief, neither his summary of the argument nor the argument itself contain any discussion or legal citation that provide the Court with assistance in addressing his arguments on appeal. Mr. Pecora asserts that he did not receive notice of the Environmental Hearing Board hearing that gave rise to the imposition of penalties. He states that his former attorney, Harold B. Fink received notice, but that he had discharged Fink. However, the Board s docket entries indicate that Mr. Fink entered his appearance before the Board on April 28, 2006, but never withdrew his appearance. Accordingly, while there may be some question regarding the relationship between Mr. Pecora and his former counsel, the docket indicates that the Board could not have violated Mr. Pecora s due process rights because Mr. Fink remained counsel of record throughout the proceedings. Further, in considering the merits of Mr. Pecora s appeal we are controlled by the Pennsylvania Rules of Appellate Procedure. The subject appeal concerns only the Board s decision regarding the imposition of civil penalties. Accordingly, our standard of review is limited to considering whether the Board s factual findings are supported by substantial evidence, and whether the Board committed an error of law or violated Mr. Pecora s constitutional rights in granting the Department s request for the imposition of civil penalties. 2 Pa.C.S. §704. As 4 indicated above, Mr. Pecora s petition for review suggests that he is asserting that the Board violated his procedural due process rights because, at some point in the proceedings he discharged his counsel and thereafter he did not personally receive notice of the complaint and subsequent proceedings. However, the argument section of his brief states no more than the following: The D.E.P. environmental hearing is wrong in their decision because the Appellant cannot be 25% wrong or 75% right. The Appellant believes the Commonwealth Court s decision on the matter should take precedent. The D.E.P. inspected the property along with the Judge and in so doing accepted his decision. The Commonwealth Court decision to which Mr. Pecora refers was authored by this writer. That decision concerned a preliminary injunction proceeding the Department brought against the Pecoras, seeking redress for alleged violations of various environmental laws involving earth moving conduct on the property, including some related to Minard Run, and consequently has no bearing on the present matter. With regard to the merits in this proceeding, the Court is without power to address Mr. Pecora s appeal because his brief, and most notably his argument section, is so completely limited in substance as to preclude any possible review by the Court. When an appellant fails present adequate argument in a brief the Court must deem the issues presented as being waived. Dunn v. Board of Property Assessment, Appeals and Review of Allegheny County, 877 A.2d 504, 510 (Pa. Cmwlth. 2005), n.14 (failure of appellant to develop any argument in support of question raised in statement of issue section of brief resulted in waiver). 5 Although Mr. Pecora has suggested that he did not receive notice of the Board s proceedings, the record indicates that his original counsel remained counsel of record. It would appear to the Court that the communication between Mr. Pecora and his counsel failed. However, for the reasons stated above, the Court will not address the merits of the issues Mr. Pecora has raised, and we therefore affirm the Board s decision. ____________________________________ JAMES GARDNER COLINS, Senior Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John P. Pecora, James D. Pecora, Ann Pecora Grego, Elizabeth Pecora, Jay J. Pecora, and Philip A. Pecora, Petitioners v. Environmental Hearing Board, Respondent : : : : : : : : : No. 2036 C.D. 2007 : ORDER AND NOW, this 19th day of March 2008, the order of the Environmental Hearing Board is affirmed. ____________________________________ JAMES GARDNER COLINS, Senior Judge

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