Opinion
EHB 2020-012-B
06-28-2022
BRIAN TELEGRAPHIS v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA: Brian Greenert, Esquire Michael Heilman Esquire For Appellant: Frank Magone, Esquire
For the Commonwealth of PA:
Brian Greenert, Esquire Michael Heilman Esquire
For Appellant:
Frank Magone, Esquire
OPINION AND ORDER ON APPELLANT'S PETITION FOR AWARD OF LEGAL FEES AND COSTS
Steven C. Beckman, Judge
Synopsis
The Board denies appellant's petition for attorney's fees and costs because it was not filed in time under the Costs for Mining Proceedings law, 27 Pa. C.S. § 7708.
OPINION
Background
Brian Telegraphis ("Mr. Telegraphis") filed a Petition for Award of Legal Fees and Costs ("Fee Petition") under the Costs for Mining Proceedings law, 27 Pa. C.S. § 7708 ("Costs Law"). The litigation for which Mr. Telegraphis now seeks attorney's fees and costs involves his appeal of the Department of Environmental Protection's ("the Department's") denial of his mine subsidence claim. In February 2019, Mr. Telegraphis submitted a subsidence damage claim to the Department with respect to a commercial structure he owns and operates as part of his landscaping business. The Department determined that Mr. Telegraphis' structure was not eligible for repair or compensation under the Bituminous Mine Subsidence and Land Conservation Act based on its finding that the structure was not in place at the time of relevant mining.
On February 4, 2020, Mr. Telegraphis filed a Notice of Appeal with the Environmental Hearing Board ("the Board") objecting to the Department's determination. The appeal went through discovery and dispositive motions before the Board held a one-day hearing on April 19, 2021. Following the submission of post-hearing briefs by the parties, the Board issued our Adjudication and Order on November 4, 2021 ("the Adjudication"). In the Adjudication, we granted Mr. Telegraphis' appeal and held that the Department's requirement that a commercial building be in place at the time of the closest mining in order to be eligible for coverage was not supported by the relevant statutory or regulatory language. The Board remanded the matter back to the Department to complete its investigation and to make a determination as to whether mine subsidence caused the alleged damage to Mr. Telegraphis' commercial building. The Board stated that its decision should not be read to pass any judgment on the issue of whether the commercial building sustained mine subsidence damage, whether any alleged damage resulted from mining in the Maple Creek Mine, and whether Maple Creek Mining, Inc. or any other party is liable for the alleged damage since those issues were not before the Board in the appeal. Neither party appealed the Adjudication to the Commonwealth Court.
On December 30, 2021, Mr. Telegraphis filed his Fee Petition under the Costs Law seeking $23,500.00 in attorney's fees incurred during the appeal. In support of his Fee Petition, Mr. Telegraphis attached an "Itemization of Legal Fees" (Exhibit 1), a "Certification of Customary Commercial Rate of Payment for Legal Services in this Area and of Experience, Reputation and Ability" (Exhibit 2), and the "Fee Agreement" (Exhibit 3) between him and his attorney. The Board held a conference call on January 4, 2022, and, following the conference, issued an order establishing a briefing schedule that was agreed to by the parties. On January 31, 2022, the Department filed an Answer to the Fee Petition ("Answer"). On February 25, 2022, Mr. Telegraphis filed his Brief in Support of his Fee Petition ("Brief in Support") and the Department filed its Brief in Opposition to the Fee Petition ("Brief in Opposition") on March 28, 2022. All the briefing in this matter is complete and the matter is now ripe for decision.
The Brief in Support filed on February 25, 2022, was missing pages. The Board brought this fact to the attention of Mr. Telegraphis' attorney several times via email and phone messages before a complete copy of the Brief in Support was eventually filed on April 14, 2022.
Discussion
The general rule that governs costs and attorney fees, commonly known as the American Rule, provides that parties are responsible for their own costs and fees unless a relevant statute provides otherwise. In re Farnese, 17 A.3d 357, 370 (Pa. 2011). In his Fee Petition, Mr. Telegraphis asserts that the Costs Law provides a statutory basis for the award of reasonable fees and costs that he incurred in pursuing his appeal against the Department. We begin our analysis of Mr. Telegraphis' Fee Petition in this matter by looking to the statutory language set forth in the Costs Law. Under the Costs Law, "Any party may file a petition for award of costs and fees reasonably incurred as a result of that party's participation in any proceeding involving coal mining activities which results in a final adjudication being issued by the Environmental Hearing Board or a final order being issued by an appellate court." 27 Pa. C.S. § 7708(b). The language of a following section of the Costs Law entitled "Time for filing" provides as follows: "The petition for an award of costs and fees shall be filed with the Environmental Hearing Board within 30 days of the date an adjudication of the Environmental Hearing Board becomes final." 27 Pa. C.S. § 7708(d). The Costs Law further states that, with certain exceptions not relevant in this matter, it is the exclusive remedy for the awarding of costs and fees in proceedings involving coal mining. 27 Pa. C.S. § 7708(g). In summary, the key provisions of the Costs Law in this matter require that there be a final adjudication by the Board and the fee petition must be filed within 30 days of the date the adjudication of the Board becomes final.
We issued the Adjudication in this matter on November 4, 2021. Mr. Telegraphis filed his Fee Petition 56 days later on December 30, 2021. The parties dispute whether the Fee Petition in this case was timely filed under the Costs Law. Mr. Telegraphis states that "[T]his Petition is timely filed within 30 days from the date that the determination became final pursuant to Section 7708(d)." (Fee Petition, ¶ 6). In its Answer, the Department denies Mr. Telegraphis' statement and asserts that the Fee Petition is untimely and, therefore, the Board lacks jurisdiction to entertain the Fee Petition and it must be dismissed. (Department's Answer, ¶ 6). In order to resolve the parties' dispute about whether the Fee Petition was timely filed or not, we must decide whether and/or when our Adjudication was final within the meaning of the Costs Law.
In his filings, Mr. Telegraphis sets forth various arguments in support of his position that the Fee Petition was filed on a timely basis. The first argument set forth in the Fee Petition states that since the Department did not file an appeal, the Adjudication became final on December 6, 2021. (Fee Petition, ¶ 3). If that is indeed the date on which the Adjudication became final, the filing of the Fee Petition would be timely since it was filed less than 30 days after December 6, 2021. Mr. Telegraphis does not provide any further discussion for this statement in his Brief in Support and, in fact, appears to withdraw this line of argument. He states "[Although Appellant mistakenly states in the Petition that the Adjudication and Order is a final order, after additional research on this issue, it is evident that the Adjudication and Order is not a final order." (Mr. Telegraphis' Brief in Support at 4).
Even if Mr. Telegraphis had not abandoned his argument that the Adjudication did not become final until the 30-day appeal period expired on December 6, 2021, we would have rejected this position. This argument was previously considered and rejected under similar facts in our decision in Svonavec, Inc. v. DEP 1998 EHB 813.
In his Brief in Support, instead of pursuing his prior stated position, Mr. Telegraphis relies on the argument that the Adjudication is not final and is at best an interlocutory decision. He asserts that the Board's Adjudication is not a final determination of his rights because the Board remanded this matter to the Department in order for the Department to conduct an investigation as to whether mine subsidence is responsible for the damage to his commercial structure. He cites a Rule of Appellate Procedure, Pa. R.A.P. 341, that governs the right to appeal a Board decision to the Commonwealth Court in support of his position. He contends that until it is determined "whether the damage to the commercial structure has resulted from mine subsidence from MCMI's mining operations" and "whether MCMI is liable for the payment of damages to Appellant for mine subsidence" the Board's Adjudication is not final. (Mr. Telegraphis' Brief in Support at 3). Additionally, he asserts that because the Board did "not expressly relinquish jurisdiction" in its Adjudication, the order is not final. (Id. at 5). Mr. Telegraphis' position of course has an internal contradiction that he recognizes, but he asks the Board to consider the Fee Petition anyway. If our Adjudication is not final, as he asserts in his Brief in Support, there is no right to bring a claim for attorney fees since the Costs Law allows a fee petition to be filed for costs and fees resulting from "participation in any proceeding involving coal mining activities which results in a final adjudication being issued by the Environmental Hearing Board or a final order being issued by an appellate court." 27 Pa. C.S. § 7708(b) (emphasis added). He argues that because the Board has broad discretion with respect to the award of legal fees, we have the authority to entertain the Fee Petition on the merits or, in the alternative, to find that the Fee Petition is premature, and either stay the proceedings or dismiss the Fee Petition without prejudice.
In its Answer to the Fee Petition and in its Brief in Opposition, the Department states that the Adjudication was final when issued on November 4, 2021. Therefore, the 30-day period to file a fee petition under the Costs Law began on November 4, 2021, and expired on December 6, 2021, the first business day after the 30th day, December 4, 2021, which fell on a weekend. (Department's Answer, ¶ 6). The Department's position is that because the Fee Petition was filed well after December 6th, it is untimely and must be dismissed. The Department rejects Mr. Telegraphis' argument that the Adjudication is not final and states that the remand by the Board does not change that fact since the Adjudication disposed of all the issues in the appeal. The Department discusses several cases it contends support its position. The Department also contends that Mr. Telegraphis failed to submit sufficient evidence to support his claim that a $300 per hour rate is reasonable for the area.
The Board did not reach the issue of whether Mr. Telegraphis submitted sufficient evidence to support the requested hourly rate.
The Board has not previously had to decide the specific issue presented by this case. Most of the fee petitions we receive are brought pursuant to the Clean Streams Law ("CSL") which does not specifically set a time for filing the petition. See Section 307(b) of the CSL; 35 P.S. § 691.307(b) . In those CSL cases, we default to our own rule that provides that the fee applicant "shall file an application with the Board within 30 days of the date of a final order of the Board." 25 Pa. Code § 1021.182(c). The Costs Law contains a similar filing requirement but sets the 30-day clock running from the date "an adjudication of the Environmental Hearing Board becomes final." 27 Pa. C.S. § 7708(d). It does not speak to the issue of when an adjudication of the Board becomes final, and the Board has not directly addressed this question in any of our prior decisions under the Costs Law. The Environmental Hearing Board Act ("Act") and our implementing regulations found at 25 Pa. Code § 1021.1 et seq. also do not directly answer the question of when a Board adjudication becomes final or the impact of a remand on that question. 25 Pa. Code § 1021.134 entitled "Adjudications" provides that at the conclusion of the proceedings, the Board will issue an adjudication containing a discussion, findings of fact, conclusions of law and an order and will serve a copy of the adjudication on all parties or their representatives. Under 25 Pa. Code § 1021.134(c), the prior sections supersede 1 Pa. Code § 35.226 which provides that adjudications of an agency head shall be final orders. The Board's regulations also state the following: "[A]djudications and orders of the Board will be effective as of the date of entry." 25 Pa. Code § 1021.11 The term "effective" is not necessarily synonymous with "final" as is evident by the fact that the Board issues numerous orders in our cases which are clearly interlocutory and not final. At the same time, we note that an appeal to the Commonwealth Court of an adjudication by the Board does not act as an automatic stay of our decision. See DEP v. Angino, et al., 2007 EHB 286; Pa. R.A.P. 1781.
Although the issue of timing for filing a fee petition under the Costs Law was not the central issue in front of the Board, the Board has made broad statements supporting the conclusion that a petition under the Costs Law should be filed within 30 days of the adjudication. See Wayne v. DEP, 2002 EHB 14, 21, 23 ("Finally, Ms. Wayne requests the award of costs and counsel fees. Because it appears that this matter is governed by 27 Pa. C.S. § 7708 the Board will entertain a petition for attorney's fees filed under that provision within thirty days of the date of this adjudication.") ("If the Appellant wishes to have the Board entertain a petition for costs and attorney's fees under 27 Pa. C.S. § 7708, she may file said petition within thirty days of the date of this adjudication"); Center for Coalfield Justice and Sierra Club v. DEP and Consol Pennsylvania Coal Company, LLC, 2018 EHB 531, 537 (Allowing amendment of a fee petition and noting that it was timely filed within 30 days of the issuance of the adjudication).
In the absence of the remand in this case, there would be no question that our Adjudication was final when issued on November 4, 2021, and that Mr. Telegraphis' Fee Petition should be dismissed as untimely. The remand issued in this case makes this a more complicated question. The issue of finality of a Board adjudication where there has been a remand as part of our decision is specific to the facts of the case and the language and purpose of the applicable statute under consideration. We think that the specific facts of this case as well as the language and purpose of the Costs Law leads to the conclusion that our Adjudication was final when it was issued November 4, 2021. The remand for further consideration of Mr. Telegraphis' underlying mine subsidence claim does not convince us that our Adjudication was not "final" within the meaning of that term in the Costs Law.
We begin with the particular facts of this case and the single issue that was before the Board in our hearing. When Mr. Telegraphis filed his original Notice of Appeal, he requested that the Board correctly interpret the Act to allow his claim to proceed, determine that mine subsidence damaged his commercial structure, and determine what mining operations were responsible for the damage. A year later, according to Mr. Telegraphis' Prehearing Memorandum, the case had narrowed to the single issue of whether or not the commercial structure was in place at the time of nearest mining. (Mr. Telegraphis' Prehearing Memorandum). The Department framed this issue by asserting that it had determined the structure was not within the scope of coverage under the Mine Subsidence Act because the structure was not in place at the time of nearest mining. (Department's Pre-hearing Memorandum). While the Board allowed testimony on the timing of the construction of Mr. Telegraphis' commercial building, our decision was based on our determination that the Department's requirement that a commercial building must be in place at the time of closest mining in order to be eligible for coverage was not supported by the statutory or regulatory language it relied on in denying Mr. Telegraphis' mine subsidence claim. We specifically noted that "[E]ligbility for coverage under the Act is a separate and distinct question from whether a commercial building has suffered actual mine subsidence damage." Telegraphis v. DEP, 2021 EHB 279, 305. No other issues were in front of the Board and our Adjudication disposed of that single legal issue. Our remand simply confirmed the appropriate next step that flowed from our determination, i.e., that the Department should complete the investigation it halted when it improperly determined that there was no possibility of coverage for Mr. Telegraphis' commercial building.
Mr. Telegraphis' argument relies on Pa. R.A.P. 341, a rule that governs the right to appeal to the Commonwealth Court, for support of his position that the Adjudication was not final. Pa. R.A.P. 341(b)(1) provides that a final order is any order that disposes of all claims and of all parties. The Board has previously held that a final order for purposes of an appeal to the Commonwealth Court is not necessarily the same as what constitutes a final order for resolving a fees application. Williams v. DEP, EHB Docket No. 2018-067-C, slip op. at 4, fn. 3 (Opinion and Order on Application for Fees and Costs issued May 11, 2022) (citing Crum Creek Neighbors v. DEP, 2010 EHB 67, 69-71). ("Williams"). We also note that the legislature used the term "final adjudication" in setting the time for filing in the Costs Law rather than "final order" which suggests that the legislature meant to tie it to Board actions and not necessarily to the rules governing an appeal to the Commonwealth Court. Putting that concern aside for now, we think there is a good chance that the Commonwealth Court would view our Adjudication in this case as final for purposes of appeal even with the remand. Pa. R.A.P. 341(c), which is titled Determination of finality, provides that when more than one claim for relief is presented in an action, the lower court or government unit may enter a final order as to fewer than all the claims and parties if it determines that doing so will aid in resolving the entire case but absent such a determination "any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order." Our Adjudication addressed all the parties in this proceeding and the only legal claim in front of the Board at the time of the hearing. The broader issues surrounding Mr. Telegraphis' mine subsidence claim regarding damages and the responsible party, if such damages were incurred, were not claims in front of the Board that we could have decided. The parties had agreed to limit the hearing to the single issue and the Board was explicit that it was only deciding that issue in its Adjudication. One problem here is the Department's use of the term "claim" in its investigative process on mine subsidence and the use of that term in the appellate rules. However, as Pa. R.A.P. 341(c) makes clear, a claim in the appeal context is narrower and means a "claim for relief presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim". Our Adjudication determined the single claim for relief presented in our hearing by Mr. Telegraphis and, therefore, we think it would have been considered final even under the appellate rule cited by him in support of his argument that our Adjudication was interlocutory.
The Commonwealth Court has applied Pa. R.A.P. 341 in cases addressing Board adjudications that included remands to the Department. Neither Mr. Telegraphis nor the Department cited or analyzed any of these cases in their Briefs. The Commonwealth Court has quashed appeals of Board decisions where the matter is remanded to the Department, but the Court has not done so in all instances. See Sunoco Partners Mktg. & Terminals, L.P. v. Clean Air Council, 219 A.3d 280 (Pa. Cmwlth. 2019) (quashing appeal of Board Adjudication remanding a plan approval back to the Department for further evaluation); Sentinel Ridge Development, LLC v. Dep't of Envtl. Prot., 2 A.3d 1263, 1267 (Pa. Cmwlth. 2010)("Sentinel Ridge") (quashing appeal of Board Adjudication remanding a stormwater permit.); but see Department of Environmental Resources v. Big B Mining Company, 554 A.2d 1002, (Pa.Cmwlth. 1989)("Big B Mining"). We think the present case most closely resembles the Commonwealth Court's decision in Big B Mining. The Commonwealth Court in Big B Mining sua sponte raised the issue of whether the Board's adjudication was a final appealable order. It determined that it was final, stating that the decision determined compliance with the provisions of the regulation at issue. Big B Mining 554 A.2d at 596, fn 5. In Sentinel Ridge, the Commonwealth Court contrasted its determination in Big B Mining with the facts and procedural setting in that case. It found that the Board's decision in Sentinel Ridge was not final as it did not address any aspect of the permit and simply remanded the permit for further evaluation under appropriate methodologies. By contrast, it stated that the Board's decision in Big B Mining was final for purposes of appeal because the Board determined that "the mining company satisfied the regulation requirements, and that determination would not change on remand." Sentinel Ridge, 2 A.3d at 1267. Our decision in the Telegraphis case, like the decision in Big B Mining, involved a determination of whether certain regulatory requirements were met rather than the terms and conditions of a permit and our determination that Mr. Telegraphis was eligible for coverage because his property met the statutory and regulatory requirements will not change on remand. Therefore, even if we look to the Commonwealth Court's interpretation of what is a final decision under Pa. R.A.P. 341, we do not find meaningful support for Mr. Telegraphis' position that our remand renders the Adjudication not final for determining when a fee petition must be filed under the Costs Law.
While neither party cited the Commonwealth Court case law on the appealability of final Board decisions, both parties cite our decision in Crum Creek Neighbors v. DEP, 2010 EHB 67, in support of their position and we find that it is instructive on the question of the finality of Board adjudications in the context of fee petitions. In Crum Creek, the appellant appealed the Department's issuance of an NPDES permit. Following a hearing of the appeal, the Board issued an adjudication and order that suspended the permit and remanded the matter to the Department to conduct further fact-finding and analysis. Within 30 days after the Board issued its adjudication and order, the appellant filed an application for fees and costs pursuant to the Clean Streams Law. The permittee separately appealed the Board's decision to the Commonwealth Court. The Department opposed the application for fees as premature, arguing that the Board's adjudication and order was not a final order because of the Board's remand of certain issues back to the Department for further investigation and because of the pending appeal of the Board's decision in the Commonwealth Court.
In Crum Creek, the Board explicitly addressed the question of "whether our Adjudication and Order constitutes something other than a final order for purposes of processing a fee application because we remanded certain issues to the Department for further consideration." Crum Creek Neighbors, 2010 EHB at 69. Analogizing to the definition of "final order" in the Pennsylvania Rule of Appellate Procedure 341(b), the Board determined that the adjudication was final because it disposed of all the appellant's claims regarding the permit that was appealed. In explaining why remanding a matter to the Department for further action does not affect the finality of the Board's adjudication, we stated:
Our Order in this case contemplated further work by the Department but it does not contemplate further proceedings before the Board in CCN's appeal. Indeed, we expressly relinquished jurisdiction in the Order If CCN, Pulte, or any other party is unhappy with any future action that the Department may take with respect to Pulte's suspended permit, then that party will need to file a new appeal. There is no rule authorizing us to reopen CCN's original appeal. There is no possible basis for us to reexamine or reconsider any aspect of our holding on the record generated in CCN's original appeal. That record is closed. Any review of a future Department action will not only require a new appeal, it will require a new record and a new analysis that focuses upon the Department's new action, not anything that was resolved in CCN's appeal. […]
Our Adjudication disposed of all of CCN's claims regarding the permit. CCN has no continuing rights in the case or with respect to the remand for that matter. In short, our Adjudication may fairly be said to end the litigation, put the litigants out of court, and prevent the parties from presenting any further evidence on the merits of the original permit issuance. Cf. Pittsburgh Bd. of Public Education v. PHRC,
820 A.2d 838, 841 (Pa. Cmwlth. 2003) (interpreting analogous rule of appellate procedure).
Crum Creek Neighbors, 2010 EHB at 70. We think that the Board's decision in Crum Creek is consistent with the Commonwealth Court's approach in Big B Mining and supports our decision in this case that our Adjudication was final when it was issued for purposes of filing a fee petition.
Finally, the Board recently addressed a fee petition in a case where we issued an adjudication that included a remand to the Department. Williams v. DEP, EHB Docket No. 2018-067-C, (Opinion and Order on Application for Fees and Costs issued May 11, 2022). The Board in Williams issued an adjudication and order that remanded an NPDES permit back to the Department upon determining that the Department did not properly account for the regulatory riparian forest buffer requirements. Despite the remand, Ms. Williams submitted her fee application within 30 days of the issuance of our adjudication. The Department opposed the fee petition in Williams and argued that, because of the remand, the underlying adjudication was not a final order of the Board. Williams, slip op. at 3. Ms. Williams argued that the adjudication was final for purposes of the fee application and that she had already prevailed in her appeal by obtaining the remand. Id. The Board ultimately sided with Ms. Williams on the issue of whether our adjudication was final stating "we find ourselves in general agreement with Ms. Williams that we could decide the fee application now…" Id. The Board decided to hold the fee application in Williams in abeyance as a matter of judicial prudence. However, that decision does not change the underlying determination that the Board could have decided the fee petition since our adjudication was final for purposes of ruling on the fee petition.
We note that the Department's position on the finality of the adjudication in Williams was the opposite of the position that the Department takes in this case.
The issue of when a fee petition must be filed under the Costs Law is an issue of first impression for the Board. When we review the arguments and case law cited above, we conclude that even with a remand, the best approach is to treat our adjudications as final when issued for purposes of determining when a fee petition must be filed under the Costs Law. This approach is consistent with the interest of all parties to have issues like a request for fees out on the table as early in the process as possible. As we have pointed out, remands often can take several months to years to resolve at the Department level. Even more time can pass if the remand decision leads to a new appeal to the Board. It strikes us that waiting until the end of that process before requiring the presentation of a fee petition could create issues surrounding evidence and its proper presentation and evaluation that can be avoided by requiring filing of the fee petition within 30-days of when we issue our adjudications. We think that treating our adjudications as final upon their issuance in the context of filing a fee petition is what the legislature intended in the language it used in the Costs Law and is the course of action that parties have routinely followed in past matters involving fee petitions in front of the Board under both the Costs Law and our own rule governing the filing of fee petitions.
We find that Mr. Telegraphis' filing of his Fee Petition in this case was well beyond the 30-day time period provided for in the Costs Law. He was required to file his Fee Petition by December 6, 2021, but waited to do so until December 30, 2021. Therefore, it was untimely, and we will not consider his untimely request.
Accordingly, we enter the following order.
ORDER
AND NOW, this 28th day of June, 2022, it is hereby ORDERED that the Appellant's Petition for Award of Legal Fees and Costs is denied.
ENVIRONMENTAL HEARING BOARD
THOMAS W. RENWAND Chief Judge and Chairman
MICHELLE A. COLEMAN Judge
BERNARD A. LABUSKES, JR. Judge
STEVEN C. BECKMAN Judge