Petition for Writ of Certiorari — Josephine Tripodi, et al., Petitioners v. North Coventry Township, Pennsylvania

No. ______

In the

Supreme Court of the United States

__________________

JOSEPHINE M. TRIPODI AND GERI CARR TRIPODI,

Petitioners,

v.

NORTH COVENTRY TOWNSHIP,

Respondent.

__________________

On Petition for a Writ of Certiorari to the

Pennsylvania Supreme Court

__________________

PETITION FOR A WRIT OF CERTIORARI

__________________

MICHAEL CONFUSIONE (MC-6855)

Counsel of Record

HEGGE & CONFUSIONE, LLC

P.O. Box 366

Mullica Hill, NJ 08062-0366

(800) 790-1550

(888) 963-8864 (fax)

mc@heggelaw.com

Counsel for Petitioners

December 21, 2021

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1) Does the Due Process Clause of the Fourteenth

Amendment prohibit a state court from compelling

a real property owner to pay thousands of dollars

for mold inspection and remediation when there are

no federal, state, or even municipal laws prescribing

an owner’s duty to inspect and remediate for mold?

2) Does the Due Process Clause limit a state court’s

power to impose obligations and liabilities upon an

intervening party?

ii

PARTIES TO THE PROCEEDINGS

Petitioners Josephine M. Tripodi and Geri Carr

Tripodi were the defendants in the Pennsylvania Court

of Common Pleas, the appellants in the Pennsylvania

Commonwealth Court, and the petitioners in the

Pennsylvania Supreme Court. Respondent North

Coventry Township was the plaintiff in the

Pennsylvania Court of Common Pleas, the respondent

in the Pennsylvania Commonwealth Court, and the

respondent in the Pennsylvania Supreme Court.

STATEMENT OF RELATED PROCEEDINGS

There are no proceedings in any court that are

directly related to this case except for North Coventry

Township v. Josephine Tripodi and Geri Carr,

currently pending in the Pennsylvania Commonwealth

Court under Docket No. 1023 CD 2020.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS. . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1

REASONS FOR GRANTING THE PETITION . . . . 6

I. The Court should clarify whether the Due

Process Clause of the Fourteenth Amendment

prohibits a state court from compelling a real

property owner to pay thousands of dollars for

mold inspection and remediation when there are

no federal, state, or even local laws prescribing

a property owner's duty to inspect and

remediate for mold . . . . . . . . . . . . . . . . . . . . . . . . 6

II. The Court should clarify whether the Due

Process Clause limits a state court's power to

impose obligations and liabilities upon an

intervening party? . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

APPENDIX

Appendix A Order in the Supreme Court of

Pennsylvania Middle District

(October 1, 2021) . . . . . . . . . . . . . . App. 1

Appendix B Memorandum

Opinion

in the

Commonwealth Court of Pennsylvania

(March 9, 2021) . . . . . . . . . . . . . . . App. 3

Appendix C Order in the Commonwealth Court of

Pennsylvania

(March 9, 2021) . . . . . . . . . . . . . . App. 17

Appendix D Order in the Court of Common Pleas

Chester County, Pennsylvania

(October 2, 2019) . . . . . . . . . . . . . App. 18

v

TABLE OF AUTHORITIES

CASES

A.B. Small Co. v. American Sugar Refining Co.,

267 U.S. 233, 45 S. Ct. 295,

69 L. Ed. 589 (1925) . . . . . . . . . . . . . . . . . . . . . . . 8

Alderwoods Grp., Inc. v. Garcia,

682 F.3d 958 (11th Cir. 2012). . . . . . . . . . . . . . . 14

Chambers v. NASCO, Inc.,

501 U.S. 32, 111 S. Ct. 2123,

115 L. Ed. 2d 27 (1991) . . . . . . . . . . . . . . . . . . . . 14

ClearOne Commc’ns, Inc. v. Bowers,

651 F.3d 1200 (10th Cir. 2011). . . . . . . . . . . . . . 15

Coates v. City of Cincinnati,

402 U.S. 611, 91 S. Ct. 1686,

29 L. Ed. 2d 214 (1971) . . . . . . . . . . . . . . . . . . 8, 11

Connally v. Gen. Const. Co.,

269 U.S. 385, 46 S. Ct. 126,

70 L. Ed. 322 (1926) . . . . . . . . . . . . . . . . . . 7, 9, 11

F.C.C. v. Fox Television Stations, Inc.,

567 U.S. 239, 132 S. Ct. 2307,

183 L. Ed. 2d 234 (2012) . . . . . . . . . . . . . . . . . . . . 6

Giaccio v. State of Pa.,

382 U.S. 399, 86 S. Ct. 518,

15 L. Ed. 2d 447 (1966) . . . . . . . . . . . . . . . . . . . . . 8

Grayned v. City of Rockford,

408 U.S. 104, 92 S. Ct. 2294,

33 L. Ed. 2d 222 (1972) . . . . . . . . . . . . . . . . . . . 6, 8

vi

Henry v. Jefferson Cty. Plan. Comm’n,

215 F.3d 1318 (4th Cir. 2000). . . . . . . . . . . . . . . 11

Highland Farms Dairy v. Agnew,

300 U.S. 608, 57 S. Ct. 549,

81 L. Ed. 835 (1937) . . . . . . . . . . . . . . . . . . . . . . 10

Holder v. Humanitarian L. Project,

561 U.S. 1, 130 S. Ct. 2705,

177 L. Ed. 2d 355 (2010) . . . . . . . . . . . . . . . . . . 7, 8

Holmes v. New York City Housing Authority,

398 F.2d 262 (2d Cir. 1968) . . . . . . . . . . . . . . . . 11

In re Appeal of the Municipality of Penn Hills,

546 A.2d 50 (Pa. 1988) . . . . . . . . . . . . . . . . . . 4, 13

Int’l Harvester Co. of America v. Kentucky,

234 U.S. 216, 34 S. Ct. 853,

58 L. Ed. 1284 (1914) . . . . . . . . . . . . . . . . . . . . . . 8

Jordan v. De George,

341 U.S. 223, 71 S. Ct. 703,

95 L. Ed. 886 (1951) . . . . . . . . . . . . . . . . . . . . . 8, 9

Kolender v. Lawson,

461 U.S. 352, 103 S. Ct. 1855,

75 L. Ed. 2d 903 (1983) . . . . . . . . . . . . . . . . . . . . . 8

Mayes v. City of Dallas,

747 F.2d 323 (5th Cir. 1984). . . . . . . . . . . . . . . . 10

N. Coventry Township v. Tripodi,

No. 851 C.D. 2017, 2018 WL 2470645

(Pa. Commw. Ct. June 4, 2018) . . . . . . . . . . . . . . 2

vii

Ohio v. Clark,

576 U.S. 237, 135 S. Ct. 2173,

192 L. Ed. 2d 306 (2015) . . . . . . . . . . . . . . . . . . . . 8

Papachristou v. City of Jacksonville,

405 U.S. 156, 92 S. Ct. 839,

31 L. Ed. 2d 110 (1972) . . . . . . . . . . . . . . . . . 6, 7, 8

S.E.C. v. Homa,

514 F.3d 661 (7th Cir. 2008). . . . . . . . . . . . . . . . 15

Seminole Tribe of Fla. v. Fla.,

517 U.S. 44, 116 S. Ct. 1114,

134 L. Ed. 2d 252 (1996) . . . . . . . . . . . . . . . . . . . 10

Sessions v. Dimaya,

138 S. Ct. 1204,

200 L. Ed. 2d 549 (2018) . . . . . . . . . . . . 7, 8, 10, 11

Skilling v. United States,

561 U.S. 358, 130 S. Ct. 2896,

177 L. Ed. 2d 619 (2010) . . . . . . . . . . . . . . . . . . 7, 8

Vill. of Hoffman Ests. v. Flipside,

Hoffman Ests., Inc., 455 U.S. 489,

102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982) . . . . . . . 8

Waffenschmidt v. MacKay,

763 F.2d 711 (5th Cir. 1985). . . . . . . . . . . . . . . . 15

United States v. Harriss,

347 U.S. 612, 74 S. Ct. 808,

98 L. Ed. 989 (1954) . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. L. Cohen Grocery Co.,

255 U.S. 81, 41 S. Ct. 298,

65 L. Ed. 516 (1921) . . . . . . . . . . . . . . . . . . . . 8, 12

viii

United States v. Williams,

553 U.S. 285, 128 S. Ct. 1830,

170 L. Ed. 2d 650 (2008) . . . . . . . . . . . . . . . 7, 8, 11

CONSTITUTIONAL PROVISIONS

U.S. Const., amend XIV, § 1 . . . . . . . . . . . . . . . . . . . 1

STATUTES

28 U.S.C.A. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RULES

Fed. R. Civ. P. 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

OTHER AUTHORITIES

§ 2956 Persons Bound by an Injunction or

Restraining Order, 11A Fed. Prac. & Proc. Civ.

§ 2956 (3d ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

U.S. Envtl. Protection Agency, Are there Federal

regulations or standards regarding mold?

https://www.epa.gov/mold/are-there-federal-re

gulations-or-standards-regarding-mold . . . . . . . . 9

1

PETITION FOR A WRIT OF CERTIORARI

Josephine M. Tripodi and Geri Carr Tripodi petition

this Court for a writ of certiorari to review the

decisions of the Pennsylvania courts below.

OPINIONS BELOW

The October 1, 2021 Order of the Pennsylvania

Supreme Court denying Petition for Allowance of

Appeal is unpublished and appears at Appendix A. The

March 9, 2021 Decision of the Pennsylvania

Commonwealth Court is unpublished and appears at

Appendix B. The July 9, 2019 Order and Opinion of the

Pennsylvania Court of Common Pleas is unpublished

and appears at Appendix C.

JURISDICTION

The Order denying Petition for Allowance of appeal

was entered by the Pennsylvania Supreme Court on

October 1, 2021. App. A. This Court’s jurisdiction is

invoked under 28 U.S.C.A. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth

Amendment provides in part, “nor shall any State

deprive any person of life, liberty, or property, without

due process of law…”

STATEMENT OF THE CASE

This litigation is part of a long-standing dispute

between North Coventry Township and Josephine

Tripodi over 27 townhouse units that Josephine owns.

2

In November 2007, North Coventry filed a

complaint against Josephine alleging non-compliance

with the Township’s property codes. In 2009, a Master

was appointed by Pennsylvania’s Court of Common

Pleas to oversee the property and alleged violations.

The court ordered owner Josephine to pay the Master

to hire consultants and for future fees and costs (N.

Coventry Twp. v. Tripodi, No. 851 C.D. 2017, 2018 WL

2470645, at *1–3 (Pa. Commw. Ct. June 4, 2018)).

The matter dragged on for years. By 2017, the state

court entered an order authorizing additional fees and

expenses for the Master and consultants, and entering

judgment for $61,803.75 in fees the Master claimed and

an additional $34,093.65 in fees for the Township’s

attorney – all while Josephine was precluded from use

and control of her property (N. Coventry Twp. v.

Tripodi, supra).

The current dispute then arose. While the dispute

over claimed non-compliance with municipal codes

seemed resolved at last, the Township now claimed

that Josephine was delinquent in failing to inspect for

and remediate mold allegedly found in 12 of the 27

vacant townhomes that, by this point, the Master (not

Josephine) was overseeing. The Master advised the

court that the estimate for “damages” was $160,000 –

then demanded $350,000.

Defendants objected to these new demands,

stressing that, unlike the prior code violations in

question, there is no federal, state, or even local

municipal law governing mold inspection or

remediation required of a property owner or landlord

(particularly of unoccupied, vacant properties). The

3

EPA has only “guidelines” for mold cleanup, and even

the guidelines note that there are no special

requirements to remediate mold, which can be handled

by homeowners, custodians, and building managers

alike. Defendants objected to any order compelling

Josephine to pay for mold inspection and remediation

that no law required a property owner to perform.

Geri Carr objected, separately, to imposition of

orders against herself because she did not own the

property, had no legal interest in it, and was not legally

responsible for it. Geri stressed that she was made a

party to the action via permissive intervention years

ago (in 2009, near the beginning of the litigation) only

because at that time she was planning to buy the

property from her mother. The sale never occurred,

however; Geri’s only responsibility to her mother or her

mother’s property was a personal one. She has no legal

responsibility for it. But the state court judge told Geri

that any orders regarding the property applied equally

to her, and the Master (appointed by the judge) told

Geri this was not “a game” and he was “going to start”

with the following: “I want personal financial

statements of both of you. I want your Pennsylvania

and Federal income tax returns for the last three

years.” Geri objected, and Josephine herself stressed

that her daughter should not have to provide financial

information or be responsible for property she did not

own. But the state court judge repeated to Geri, “you

are equally responsible with your mother, and that’s

the law in this.” “[E]ither you’re going to come up with

the funds, or I’m going to order the sale of the property

and that sale will be a fire sale,” the judge stated.

4

Defendants appealed to Pennsylvania’s

Commonwealth Court and argued that there is no law

compelling a property owner to inspect or remediate for

mold (particularly in an unoccupied property), and that

it was plainly wrong to “order[] Geri Carr Tripodi to

comply with the orders ... when she does not own the

[P]roperty and has no interest in it…” But the

Commonwealth Court affirmed. “While it may be true,

as the Tripodis assert, that no law requires mold

remediation, the purpose of the mold remediation is to

make it safe enough for the inspectors to enter the

premises to determine the extent of the code violations.

Thus, without mold remediation, nothing further can

occur. Accordingly, we see no error in the trial court’s

determination that the Tripodis must fund mold

remediation as a precursor to meeting the other

requirements for which they are responsible under the

Orders.” Ex. B. The court stated that because Geri Carr

had intervened in the lawsuit in 2009, Geri was subject

to the court’s orders the same as her mother:

As the Pennsylvania Rules of Civil Procedure

make plain: “After the entry of an order allowing

intervention, the intervener shall have all the

rights and liabilities of a party to the action.”

Pa.R.C.P. No. 2330 … Further, as our Supreme

Court enunciated in In re Appeal of the

Municipality of Penn Hills, 546 A.2d 50, 52 (Pa.

1988): “Given the absence of limitations to the

contrary ... an intervenor participates in the

appeal with all the attendant rights of any other

party.”

5

Geri Carr Tripodi chose to intervene in the

present matter in 2009. She cannot now assert

she is a mere representative or observer or that

she can move in and out of the litigation at will.

Further, to suggest that Geri Carr Tripodi has

no interest in the Property seems disingenuous

in light of the fact that, at one time, the parties

had agreed Geri Carr Tripodi would purchase

the Property from her mother. Ironically, the

very financial statements to which the Tripodis

object would establish whether, in fact, Geri

Carr Tripodi has an interest in the Property.

Accordingly, we reject the argument that Geri

Carr Tripodi cannot be held accountable in the

same way Tripodi may be. Thus, the trial court

did not err by determining Geri Carr Tripodi

may be subject to the same requirements as her

mother in this matter, including the provision of

financial statements. [Ex. B]

The Tripodis sought review from Pennsylvania’s

Supreme Court, again stressing the absence of any

laws governing mold remediation required of a

property owner and the impropriety of enforcing orders

against Geri. But the Supreme Court denied the

Petition for Allowance of Appeal on October 1, 2021.

Ex. A.

6

REASONS FOR GRANTING THE PETITION

I. The Court should clarify whether the Due

Process Clause of the Fourteenth Amendment

prohibits a state court from compelling a real

property owner to pay thousands of dollars

for mold inspection and remediation when

there are no federal, state, or even local laws

prescribing a property owner’s duty to inspect

and remediate for mold.

Vague laws violate due process under the Due

Process Clauses of both the Fifth and Fourteenth

Amendments. The Court has invoked the Due Process

Clause to void a statute if “its prohibitions are not

clearly defined.” Grayned v. City of Rockford, 408 U.S.

104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). The

vagueness doctrine “addresses at least two connected

but discrete due process concerns: first, that regulated

parties should know what is required of them so they

may act accordingly; second, precision and guidance

are necessary so that those enforcing the law do not act

in an arbitrary or discriminatory way.” F.C.C. v. Fox

Television Stations, Inc., 567 U.S. 239, 253, 132 S. Ct.

2307, 183 L. Ed. 2d 234 (2012); Grayned, 408 U.S. at

108–09 (stating vague laws “offend several important

values” including “fair notice” and “explicit standards

for those who apply them,” which are the “basic

principle of due process”).

Hence, if a state or federal statute, or municipal

ordinance, fails to give “a person of ordinary

intelligence fair notice” of what is prohibited or

required, then it is void for vagueness. Papachristou v.

City of Jacksonville, 405 U.S. 156, 162, 167, 92 S. Ct.

7

839, 31 L. Ed. 2d 110 (1972) (invalidating vagrancy

ordinance as “so all-inclusive and generalized” as to

enable “men to be caught, … although not chargeable

with any particular offense”); United States v. Harriss,

347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954)

(describing “[t]he constitutional requirement of

definiteness” in context of fair notice); Holder v.

Humanitarian L. Project, 561 U.S. 1, 20–22, 130 S. Ct.

2705, 177 L. Ed. 2d 355 (2010) (analyzing “fair notice”

prong of vagueness doctrine in an as-applied challenge

to federal statute).

Vagueness invalidity applies also where a rule is “so

standardless that it authorizes or encourages seriously

discriminatory enforcement” or arbitrary decisionmaking – as the Tripodis charged in the Pennsylvania

courts with regard to the mold issue raised against

them, see Papachristou, 405 U.S. at 168–170

(invalidating local ordinance as giving officials

“unfettered discretion”); Skilling v. United States, 561

U.S. 358, 416, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010)

(analyzing “arbitrariness” prong of vagueness doctrine);

United States v. Williams, 553 U.S. 285, 304, 128 S. Ct.

1830, 170 L. Ed. 2d 650 (2008) (explaining vagueness

doctrine in context of due process); Sessions v. Dimaya,

138 S. Ct. 1204, 1216, 200 L. Ed. 2d 549 (2018)

(stressing purpose of vagueness doctrine is due process

and invalidating statute for “produc[ing] more

unpredictability and arbitrariness than the Due

Process Clause tolerates”).

The Court should clarify this area of law by

granting Certiorari in this case, cf. Connally v. Gen.

Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed.

8

322 (1926) (explaining that “sufficiently explicit”

statutory terms “is a well-recognized requirement,

consonant alike with ordinary notions of fair play and

the settled rules of law”); Jordan v. De George, 341 U.S.

223, 231–32, 71 S. Ct. 703, 95 L. Ed. 886 (1951)

(“Despite the fact that this is not a criminal statute, we

shall nevertheless examine the application of the

vagueness doctrine to this case.”); Kolender v. Lawson,

461 U.S. 352, 357–58, 103 S. Ct. 1855, 75 L. Ed. 2d 903

(1983); Giaccio v. State of Pa., 382 U.S. 399, 402, 86 S.

Ct. 518, 15 L. Ed. 2d 447 (1966); Coates v. City of

Cincinnati, 402 U.S. 611, 613–14, 91 S. Ct. 1686, 29 L.

Ed. 2d 214 (1971); Vill. of Hoffman Ests. v. Flipside,

Hoffman Ests., Inc., 455 U.S. 489, 497–98, 102 S. Ct.

1186, 71 L. Ed. 2d 362 (1982); Papachristou, 405 U.S.

at 162, 170–71; Holder, 561 U.S. at 20; Skilling, 561

U.S. at 412–13; Ohio v. Clark, 576 U.S. 237, 253, 135 S.

Ct. 2173, 192 L. Ed. 2d 306 (2015); Williams, 553 U.S.

at 304; Sessions, 138 S. Ct. at 1212–1216; Grayned, 408

U.S. at 108–109.

The Court should stress that the vagueness doctrine

has never exclusively operated on criminal laws and

applies equally to the municipal context at issue in the

Tripodis’ case here, see A.B. Small Co. v. Am. Sugar

Ref. Co., 267 U.S. 233, 239, 45 S. Ct. 295, 69 L. Ed. 589

(1925) (“The defendant attempts to distinguish [prior

vagueness] cases because they were criminal

prosecutions. But that is not an adequate distinction.”);

Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 216,

221–22, 34 S. Ct. 853, 58 L. Ed. 1284 (1914) (applying

vagueness doctrine to a civil fine for a combination in

restraint of trade); United States v. L. Cohen Grocery

Co., 255 U.S. 81, 92, 41 S. Ct. 298, 65 L. Ed. 516 (1921).

9

The Court should stress that the vagueness doctrine

applies with equal force to a municipal case like this

one – where the customary protection of fair notice to

those who must follow a law is perhaps even more

subject to abuse by local officials, cf. Connally, 269 U.S.

at 391 (when leaving the “line between what is lawful

and unlawful . . . left to conjecture” enforcement

officials are enabled to “shap[e]” the law’s “contours” as

they see fit to any person’s particular matter); Jordan,

341 U.S. at 242 (Jackson, J., dissenting) (noting

vagueness empowers government bureaucrats to

“condem[n] all that [they] personally disapprove and

for no better reason than that [they] disapprove it”).

In this case, the Pennsylvania courts ordered

defendants to post thousands of dollars for mold

inspection and remediation but cited no legal standard

for issuing their orders. There are no laws governing

mold inspection or remediation. There is no federal law

covering a property owner’s or landlord’s

responsibilities for mold. There is no Pennsylvania

state law. There is no local, municipal regulation.

There are only EPA “guidelines” for mold cleanup. This

is not a law and does not impose legal obligations. Even

the guidelines note there are no special requirements

to remediate mold; remediation can be handled by

homeowners, custodians, and building managers alike,

see, e.g., https://www.epa.gov/mold/are-there-federalregulations-or-standards-regarding-mold (“Currently,

there are no EPA regulations or standards for airborne

mold contaminants.”) The state court rulings fail to

apply the vagueness principles under the Fourteenth

Amendment’s Due Process Clause and this Court’s

governing precedent discussed above.

10

The Court should clarify how the Due Process

Clause operates in such matters. A state can choose to

delegate its power and specify the extent of the

delegation. The legality of those decisions is a “question

for the state itself, ” Highland Farms Dairy v. Agnew,

300 U.S. 608, 612, 57 S. Ct. 549, 81 L. Ed. 835 (1937).

But the Due Process Clause ensures that whatever

laws or regulations a state legislative body enacts and

the state executive purports to enforce are sufficiently

clear to preclude arbitrary enforcement at the whim of

government officials – as the Tripodis’ charged was

occurring against them. Here, there are no legal

standards governing mold or mold related issues, or a

property owner’s duty to inspect for and remediate

mold – let alone “sufficient standards to guide”

enforcement as required under the Due Process Clause.

The Fourteenth Amendment subjects state actions to

the Due Process Clause, regardless of whether they are

permissible exercises of state power under state law,

Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 59, 116 S.

Ct. 1114, 134 L. Ed. 2d 252 (1996). This case involves

discretionary activity of municipal governing bodies

which the Due Process Clause subjects to judicial

scrutiny to prevent arbitrary and unreasonable action.

This case involves a question of state power premised

on such absent standards that they violate the Due

Process Clause, the Court should stress, Sessions, 138

S. Ct. at 1223 (Gorsuch, J., concurring).

The Court should harmonize circuit court decisions

reaching varying conclusions in this area of law, see,

e.g., Mayes v. City of Dallas, 747 F.2d 323 (5th Cir.

1984) (ordinance requiring new buildings to

“harmonize” with “overall character” of district or with

11

“surrounding structures,” did not fail to set forth

“objective, articulated standards sufficient to prevent

the arbitrary exercise of government power”); Henry v.

Jefferson Cty. Plan. Comm’n, 215 F.3d 1318 (4th Cir.

2000) (ordinance requiring projects to be “compatible”

with and to “preserve the rural character of the . . .

agricultural community” not unconstitutionally vague);

Holmes v. New York City Hous. Auth., 398 F.2d 262,

265 (2d Cir. 1968) (in context of vagueness challenge to

eligibility requirements for public housing tenants,

“due process requires that selections among applicants

be made in accordance with ‘ascertainable standards,’”

and “[i]t hardly need be said that the existence of an

absolute and uncontrolled discretion in an agency of

government vested with the administration of a vast

program, such as public housing, would be an

intolerable invitation to abuse”).

The Court should hold that the absence of laws

governing mold and inspection and remediation for

mold violates Petitioner’s rights under the Due Process

Clause in this case because, by failing to specify what

is required, no boundaries are placed on the Township’s

power to act against the Tripodis or any other person

so situated. The Township is vested with impermissible

unfettered discretion. Coates, 402 U.S. at 614;

Williams, 553 U.S. at 306. Due process requires the

executive to premise its decisions on an ascertainable

standard of law so that owners like Josephine Tripodi

have fair notice of the standard and what is required of

them under the standard. Connally, 269 U.S. at 391. As

Justice Gorsuch wrote in Sessions, 138 S. Ct. 1204,

“The implacable fact is that this isn’t your everyday

ambiguous statute. It leaves the people to guess about

12

what the law demands—and leaves [the Township] to

make it up. You cannot discern answers to any of the

questions this law begets by resorting to the traditional

canons of statutory interpretation. No amount of

staring at the statute’s text, structure, or history will

yield a clue. Nor does the statute call for the

application of some preexisting body of law familiar to

the judicial power. The statute doesn’t even ask for

application of common experience. Choice, pure and

raw, is required. Will, not judgment, dictates the

result.” See also L. Cohen Grocery Co., 255 U.S. at 89

(noting law in question “forbids no specific or definite

act. It confines the subject-matter of the [consent]

which it authorizes to no element essentially inhering

in the transaction as to which it provides. It leaves

open, therefore, the widest conceivable inquiry, the

scope of which no one can foresee and the result of

which no one can foreshadow or adequately guard

against. In fact, . . . to attempt to enforce the section

would be the exact equivalent of an effort to carry out

a statute which in terms merely penalized and

punished all acts . . . when unjust and unreasonable in

the estimation of the [Township].”)

II. The Court should clarify whether the Due

Process Clause limits a state court’s power to

impose obligations and liabilities upon an

intervening party?

Geri Carr was not originally a party to this action

that North Coventry Township filed against Josephine

Tripodi. Josephine owns the property. Geri Carr,

Josephine’s daughter, does not own it, and has no legal

responsibility for it. Geri was made an intervening

13

party to this action shortly after it began (in 2009) at

the state court’s direction only because she was the

prospective buyer for her mother’s property at that

time. The sale never occurred, however; Geri Carr

never acquired an interest in the property or assumed

any legal responsibility for it. Despite that, the state

courts imposed the same obligations and liabilities on

Geri Carr as against the actual property owner,

Josephine, – ordering Geri to pay $500,000 for mold

inspection and remediation and other costs and fees

claimed by the Township over the property, and to

provide personal financial information to the Master as

well.

The Court should grant Certiorari to address this

area of law. Caselaw has routinely addressed the right

of a party to intervene in an action (e.g., Fed. R. Civ. P.

24, delineating third party’s right to intervene), but

courts have not addressed the intervening party’s

obligations and liabilities once intervention is granted.

Even the Pennsylvania Commonwealth Court below

cited caselaw (Appeal of Municipality of Penn Hills, 519

Pa. 164, 546 A.2d 50, 52 (1988)) as only noting, “an

intervenor participates in the appeal with all the

attendant rights of any other party” (emphasis

added) – never addressing the question of liability and

obligation.

The Court should address whether the Due Process

Clause of the Fourteenth Amendment limits a state

court’s ability to impose obligations and liabilities on

an intervening party like Geri Carr, clarifying that

intervening in an action does not mean that the

intervening party assumes the same legal duties and

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liabilities that the original party has. Intervention does

not burden the intervenor with such liabilities, the

Court should stress, clarifying that a state court ruling

purporting to impose such obligations and liabilities on

an intervenor – as the Pennsylvania courts imposed

upon Geri Carr – violates the protections afforded by

the Due Process Clause. Geri Carr does not own the

property and has no legal responsibility for it. Only her

mother, Josephine, owns the property. The state courts

had the power to enforce obligations against Josephine,

not non-owner Geri, the Due Process Clause prescribes.

This area of law is unclear. In Chambers v. NASCO,

Inc., 501 U.S. 32, 50, 111 S. Ct. 2123, 115 L. Ed. 2d 27

(1991), the Court addressed a federal district court's

inherent power to impose financial sanctions for abuses

of the judicial process against a non-party who was the

sole shareholder and director of a company named as

the defendant in the action. But there the district court

said that the non-party had engaged in tactics to

prevent consummation of the sale and acted in bad

faith conduct. The Court should clarify that Chambers

deals with a non party who was the de facto owner of

the single shareholder corporate party and whose

actions intentionally helped the artificial company he

owned commit bad faith, sanctionable conduct. That

ruling does not extend to a situation like Geri Carr’s in

this case, the Court should clarify, cf. Alderwoods Grp.,

Inc. v. Garcia, 682 F.3d 958, 971 (11th Cir. 2012)

(“[C]ourts that have considered the issue generally

agree that this sanction power extends to a person

outside the territorial limits of the court that issued the

injunctive order, provided that the person had actual

notice of the order and acted in concert with the party

15

explicitly enjoined”); Waffenschmidt v. MacKay, 763

F.2d 711, 717–721 (5th Cir. 1985); ClearOne Commc’ns,

Inc. v. Bowers, 651 F.3d 1200, 1215–16 (10th Cir.

2011); S.E.C. v. Homa, 514 F.3d 661, 673 (7th Cir.

2008); § 2956 Persons Bound by an Injunction or

Restraining Order, 11A Fed. Prac. & Proc. Civ. § 2956

(3d ed.) (noting court ordinarily lacks power to issue

order against nonparty absent “in personam

jurisdiction” and “only significant exception to this rule

involves nonparties who have actual notice of an

injunction and are guilty of aiding or abetting or acting

in concert with a named defendant”).

CONCLUSION

The Court should grant this Petition for a Writ of

Certiorari.

Respectfully submitted,

MICHAEL CONFUSIONE (MC-6855)

Counsel of Record

HEGGE & CONFUSIONE, LLC

P.O. Box 366

Mullica Hill, NJ 08062-0366

(800) 790-1550

(888) 963-8864 (fax)

mc@heggelaw.com

Counsel for Petitioners

Dated: December 21, 2021