Opposition — Fiore v. County of Westmoreland

RODAK, JR., CLERK

!

IN THE .

Supreme Court of the United States

No. 78-1360

IN RE: LEASE OF COAL ON COUNTY LANDS

SITUATE IN HEMPFIELD TOWNSHIP, WEST-

MORELAND COUNTY, PENNSYLVANIA.

FRED FIORE, AGGRIEVED PARTY,

Petitioner,

COUNTY OF WESTMORELAND,

Respondent,

WEISS BROTHERS LEASING, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF PENNSYLVANIA

IRVING L. BLOOM

102 Courthouse Square

Greensburg, Pennsylvania 15601

Attorney for Respondent,

County of Westmoreland

BATAVIA TIMES, APPELLATE COURT PRINTERS Ze

EDWARD W. SHANNON, SENIOR REPRESENTATIVE

HAROLD L. BERKOBEN, REPRESEKTATIVE

1700 PARKLINE DR., PITTSBURGH, PA. 15227

(4a) 681-7463

INDEX.

Counter-Statement of Jurisdiction ...................

Counter-Statement of Constitutional Provisions,

Statutes, and Rules of Court Involved ............

Counter-Statement of the Questions Involved ........

Counter-Statement of the Case..................2505-

Reasons for Denying This Writ ................+055-

I. The jurisdiction of the United States Supreme

Court may not be invoked by Petitioner where the

federal questions Petitioner alleges are raised for

the first time in the petition for certiorari, never

having been raised or argued at any stage of the

proceedings before the state courts .............

II. It is within the statutory discretion of the

Court of Common Pleas of Westmoreland County,

Pennsylvania, as affirmed by the Commonwealth

Court and Supreme Court of Pennsylvania, to

refuse to approve a lease between Respondent

Westmoreland County and Petitioner Fiore for

mining coal on county lands where there were

numerous irregularities in the process of bidding

and awarding the proposed lease ...............

III. The Pennsylvania Courts’ exercise of

statutory discretion in refusing to approve the lease

to Petitioner because of irregularities in the bidding

and awarding procedures raises no federal

questions cognizable by this Court..............

RS ge EI ERIE wR SR NS eh: OPEL Le ae

Page

TABLE OF CASES.

Biumenschein v. Pittsburgh Housing Authority, 379 Pa.

566, 109 A.2d 311 (1954). 2.0... cece eee eee eee 7

Cardinale v. Louisiana, 394 U.S. 437, 22 L.Ed. 2d 398,

Ss RE Nc. ins waddle des dnccdmwaly<« 4

Hibbs v. Arensberg, 276 Pa. 24, 119 A. 727 (1923)... a

Hyam v. Upper Montgomery Joint Authority, 399 Pa.

446, 160 A.2d- 539 (1960)... 2... eee eee eee 7

Louchheim v. Philadelphia, 218 Pa. 100, 66 A. 1121

SUES Eh » eGNic dard Sa aa eg eas Ss acne ue ds 9.10

Mutual Life Insurance Co. of New York v. McGrew, 188

U.S. 291, 47 L.Ed. 480, 23 S.Ct. 375 (1903) ....... 6

New York Central & Hudson River Railroad Co. v. City

of New York, 186 U.S. 269, 46 L.Ed. 1158, 22 S.Ct.

SE eos k6 on 6 ck kn oe ON ee keene 6

Oshkosh Waterworks Co. v. City of Oshkosh, 187 U.S.

437, 47 L.Ed. 249, 23 S.Ct. 234 (1903)............ 11,12

Schuck v. School District of Baldwin Township, 296 Pa.

Ga, PE, Ue CU a snk cesses Genet $ 60eedecueen 9

Smith v. Groguen, 415 U.S. 566, 39 L.Ed. 2d 605, 94

Ss Re COR 4 i aonb ccck tee BAbe cencm eager 13

Tacon v. Arizona, 410 U.S. 351, 35 L.Ed. 2d 346, 93

RR FO PID ns Sxee cancecedsewnaeabeteiinbeess 4

Thomas v. Iowa, 209 U.S. 285, 52 L.Ed. 782, 28 S.Ct.

SEP TUOUE wh kc ci ccc dectubhmeahigss oc keas saws es' 6

Tidal Oil Co. v. Flanagan, 263 U.S. 444, 6 L.Ed. 2d 386,

OF UGE. Ge Cae So vas cn ees rare Sheet ewkas pacnke 12

III.

Page

STATUTE.

Act of August 9, 1955, P.L. 323, § 2306 (16 P.S. § 2306) 7,12

RULE OF COURT.

United States Supreme Court Rule 23(f), Title 28 United

TE si hy RUN AS OE Ns a kc Whe Oo 0 od ewer 2,5

IN THE

Supreme Court of the United States

No. 78-1360

IN RE: LEASE OF COAL ON COUNTY LANDS

SITUATE IN HEMPFIELD TOWNSHIP, WEST-

MORELAND COUNTY, PENNSYLVANIA

FRED FIORE, AGGRIEVED PARTY,

Petitioner,

COUNTY OF WESTMORELAND,

Respondent,

WEISS BROTHERS LEASING, INC.,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME

COURT OF PENNSYLVANIA

Counter-Statement of Jurisdiction

Respondent Westmoreland County contends that the

jurisdiction of the Supreme Court of the United States cannot

be invoked under the United States Code, Title 28, Section

1257(3), as contended by Petitioner, for the reason that no

valid federal or constitutional question is involved, and for

the further reason that Petitioner failed to raise any such

federal or constitutional issue before any of the state courts

hearing this case below.

2

Counter-Statement of Constitutional Provisions,

Statutes, and Rules of Court Involved

In addition to the constitutional provisions and statutes

referred to in the petition for certiorari, Respondent West-

moreland County cites Title 28, United States Supreme Court

Rule 23(f), which reads as follows:

If review of the judgment of a state court is sought, the

statement of the case shall also specify the stage in the

proceedings in the court of first instance and in the ap-

pellate court, at which, and the manner in which, the

federal questions sought to be reviewed were raised: the

method of raising them (e. g., by a pleading, by request to

charge and exceptions, by assignment of error); and the

way in which they were passed upon by the court: such

pertinent quotations of specific portions of the record, or

summary thereof, with specific reference to the places in

the record where the matter appears (e.g., ruling on ex-

ception, portion of the court’s charge and exception

thereto, assignment of errors) as will show that the

federal question was timely and properly raised so as to

give this court jurisdiction to review the judgment on writ

of certiorari.

Counter-Statement of the Questions Involved

I. Whether the jurisdiction of the United States Supreme

Court may be invoked by Petitioner where the federal

questions Petitioner alleges are raised for the first time in the

petition for certiorari, never having been raised or argued at

any stage of the proceedings before the state courts.

Il. Whether it is within the statutory discretion of the

Court of Common Pleas of Westmoreland County, Penn-

sylvania, as affirmed by the Commonwealth Court and

Supreme Court of Pennsylvania, to refuse to approve a lease

between Respondent Westmoreland County and Petitioner for

3

mining coal on county lands where there were numerous

irregularities in the process of bidding and awarding the

proposed lease.

III. Whether the Pennsylvania Courts’ exercise of

statutory discretion in refusing to approve the lease to

Petitioner because of irregularities in the bidding and award-

ing procedures raises any federal questions cognizable by this

Court.

Counter-Statement of the Case

Respondent Westmoreland County adopts Petitioner's

Statement of the Case with the fo'lowing corrections of inac-

curate statements or omissions:

The bid submitted by Responcent Weiss Brothers, Inc.

provided for payment of $5.27 per ton of coal mined, or

13.17% of the sale price of the coal; the bid submitted by

Petitioner Fred Fiore Coal Company provided for payment of

$5.11 per ton or 21% of the sale price of the coal.

Contrary to Petitioner’s Statement of the Case (p. 6), the

contract awarded to Weiss Brothers, Inc. for drilling and test

boring on the coal site at Westmoreland County was un-

derstood by all parties to the action to be an award of the coal

lease to Weiss Brothers, Inc., with the understanding that if

the results of the test boring were favorable, Weiss Brothers,

Inc. was to submit a proposed lease agreement to the County

Solicitor’s office for approval of other terms.

Petitioner’s Statement of the Case flatly asserts that the

record of the hearing held by the Westmoreland County

Court en Banc on April 1, 1977, and June 17, 1977, fails to

disclose evidence of fraud, official misconduct, or arbitrary

and capricious abuse of power in the award of the coal lease,

however, the record affirmatively establishes evidence of

4

substantial irregularities including the County Com-

missioners’ duplicate and inconsistent awarding of the lease

in question and Petitioner’s impermissible modification of its

bid.

Finally, Respondent Westmoreland County disputes

Petitioner’s claim that the issues asserted in the petition for

certiorari were raised before the courts below. In fact, the

only issues raised below concerned the scope of discretion

permitted the Pennsylvania courts in reviewing a proposed

lease of county real estate and the sufficiency of the evidence

presented to justify the Westmoreland County Court en Banc

in denying approval of the lease in question.

REASONS FOR DENYING THIS WRIT

I. The jurisdiction of the United States Supreme Court

may not be invoked by Petitioner where the federal

questions Petitioner alleges are raised for the first time

in the petition for certiorari, never having been raised or

argued at any stage of the proceedings before the state

courts.

Contrary to Petitioner’s contentions, Respondent County of

Westmoreland asserts that the instant case involves no federal

questions, substantial or otherwise, and that, therefore, this

Court has no jurisdiction to decide the questions involved

herein (see discussion in Argument, Section III, infra). Fur-

ther, assuming that federal questions are involved, we submit

that Petitioner failed to raise these questions in any of the

courts below and, thus, is precluded from raising them for

the first time in a petition for certiorari. See Tacon v. Arizona,

410 U.S. 351, 35 L.Ed. 2d 346, 93 S.Ct. 998 (1973); Cardinale

v. Louisiana, 394 U.S. 437, 22 L.Ed. 2d 398, 89 S.Ct. 1162

(1969).

—

— eee ee

5

To insure that a party has, in fact, raised a federal question

in the lower courts, this Court’s Rules, Title 28 United States

Code, United States Supreme Court Rule 23(f), require that in

its petition for certiorari, Petitioner state the stage of the

proceedings at which it raised the question, the specific

method and manner it raised the question, the way the lower

courts passed on the question, and specific quotations from

the record where the question appears as would establish that

Petitioner previously raised the question in a timely and

proper fashion so as to furnish this Court with jurisdiction.

The instant petition merely asserts generally that counsel

raised the federal questions in argument, objections, and ap-

peals, without specific reference to where in the record it

raised these questions and without stating the way in which

the lower courts passed on them. We submit that Petitioner

failed to comply with Rule 23(f) because it was unable to do

so.

Indeed, an examination of Petitioner’s written requests for

review submitted to the courts below substantiates that

Petitioner never articulated any federal question prior to its

petition herein. [See petition for certiorari, Appendices F and

G: hereinafter all references to appendices refer to ap-

pendices in the petition for certiorari.] In addition, the fact

that none of the Pennsylvania Courts’ opinions in this case

dealt with federal questions further substantiates this con-

tention. [See Appendices B, C, D and E.] We submit, and the

records will show, that Petitioner only raised the questions of

the degree of discretion the Pennsylvania statute accorded the

Westmoreland County Court of Common Pleas in reviewing

the Westmoreland County Commissioners’ proposed lease of

the county’s real property and the sufficiency of evidence

presented at the evidentiary hearing to justify the court’s

refusal to approve the lease in question. In proceedings

6

before the Pennsylvania Courts, Petitioner never made the

slightest allusion to any issues concerning the separation of

powers, the alleged unconstitutional vagueness of the state

statute, or the alleged deprivation of property without due

process—questions that it now seeks to raise before this

Court.

Although Petitioner may contend, albeit without force, that

these issues were raised by inference from facts of the case,

this Court has held that the assertion of a federal claim must

be made unmistakably and not left to mere inference. Thomas

v. lowa, 209 U.S. 285, 52 L.Ed 782, 28 S.Ct. 487 (1908), Mutual

Life Insurance Co. of New York v. McGrew, 188 U.S. 291, 309-

310, 47 L.Ed. 480, 485, 23 S.Ct. 375 (1903). This Court has

also held that the appellant must specify in the lower courts

the clause in the Constitution under which it asserts a claim.

Mutual Life Insurance Co., supra; New York Central & Hudson

River Railroad Co. v. City of New York, 186 U.S. 269, 272-273,

46 L.Ed. 1158, 1160, 22 S.Ct. 916 (1902). Since Petitioner has

patently failed to articulate any federal questions in the

courts below, and thus, no lower court has had an op-

portunity to rule on such questions, Petitioner cannot, at this,

the latest stage in the case, raise such questions. Accordingly,

we respectfully request this Court to deny certiorari.

r

7

Il. it is within the statutory discretion of the Court of

Common Pleas of Westmoreland County, Pennsylvania, as

affirmed by the Commonwealth Court and Supreme Court

of Pennsylvania, to refuse to approve a lease between

Respondent Westmoreland County and Petitioner Fiore

for mining coal on county lands where there were

numerous irregularities in the process of bidding and

awarding the proposed lease.

Contrary to the arguments of Petitioner, the scope of

review by Pennsylvania courts in matters of this nature is not

limited to fraud, official misconduct, bad faith, capricious

actions or abuse of power. This strict standard is to be ap-

plied in cases where the courts are requested to enjoin certain

actions of public officials who are performing their official

duties. See, e.g., Blumenschein v. Pittsburgh Housing Authority,

379 Pa. 566, 109 A.2d 311 (1954) (action to enjoin eminent

domain proceedings), Hyam v. Upper Montgomery Joint

Authority, 399 Pa. 446, 160 A.2d 539 (1960) (action to enjoin

proceeding with plans for sewage treatment plant and related

system). In such cases involving the exercise of their general

equity powers, the courts refrain from substituting their own

judgment and discretion for that of the administrators ap-

pointed by law to carry out specific governmental duties.

In the present case, however, the Pennsylvania Legislature

has specifically directed that the courts should conduct a

hearing and “. . . make such order and decree as shall seem

right and proper . . .” Act of August 9, 1955, P.L. 323,

§ 2306 (16 P.S. § 2306). In its interpretation of this section the

Pennsylvania Commonwealth Court, citing decisions of the

Supreme Court of Pennsylvania, has twice said in the instant

case:

It is true that the power conferred upon the Com-

missioners by Section 2306 is discretionary, and when

public officials take action in discretionary matters a

presumption arises that they are properly acting for the

public good. Parker v. Philadelphia, 391 Pa. 242, 137 A.2d

343 (1958). Normally they may not be restrained from act-

ing absent allegation and proof of fraud, misconduct,

abuse of discretion, or capricious and arbitrary conduct.

Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446,

160 A.2d 539 (1960). However, Section 2306 requires that

the court, in approving the lease, exercise its sound

discretion as well. See Baton Coal Company Appeal, 365 Pa.

519, 76 A.2d 194 (1950), and McKees Rocks Borough

School District Petition, 306 Pa. 285, 62 A.2d 20 (1948)

(emphasis added).

| Appendix E, p. 39, Appendix B, p. 20-21]

The opinions of Judge Rodgers for the Commonwealth

Court of Pennsylvania and Judge McCormick for the Court of

Common Pleas of Westmoreland County clearly substantiate

the existence of substantial irregularities in the procedures

followed in awarding the lease in question, thereby justifying

the courts’ exercise of discretion in denying approval of the

proposed lease.

After conducting an evidentiary hearing, the Westmoreland

County Court en Banc made a factual finding that the actions

taken by the County Commissioners on April 24. 1975,

constituted an award of the coal lease to Weiss Brothers. Inc.

as the “highest and best bidder in response to the ad-

vertisement soliciting bids” [Appendix C, p. 25]. Later, on

July 24, 1975, the County Commissioners reversed themselves

and awarded the coal lease to Petitioner, again allegedly as

the highest and best bid. In itself this attempt to renege on

Respondent Weiss Brothers’ contract and make a second

award of the lease constitutes a violation of Pennsylvania bid

law, justifying court disapproval of the latter agreement with

9

Petitioner. Under Pennsylvania law, once bids are opened and

one party is determiaed to be the best responsible bidder, the .

award must be made to that bidder or all bids must be reject-

ed. Schuck v. School District of Baldwin Township, 296 Pa.

408, 146 A. 24 (1929), Hibbs v. Arensberg, 276 Pa. 24, 119 A.

727 (1923). Louchheim v. Philadelphia, 218 Pa. 100, 66 A. 1121

(1907). Once a contract was awarded to Weiss Brotheis as best

bidder, the Commissioners were barred from changing their

minds and awarding the same contract to Petitioner.

The Westmoreland County Court en Banc found that this

irregularity was further compounded by the County Com-

missioners’ attempt on October 9, 1975, to petition the court

for approval of the original lease of the coal to Weiss

Brothers and their attempt on December 21, 1975, to with-

draw all petitions for approval of leases to either Weiss

Brothers or Petitioner. The court en banc found that this

vacillation by the County Commissioners made it impossible

for the court to determine which action should be recognized

as the true discretionary decision of the County Com-

missioners. Thus, the court stated:

The Court cannot in good conscience recognize the ac-

tion of the Board of Commissioners of Westmoreland

County on July 24, 1975, as being valid and disregard the

actions of the Board of County Commissioners on April

25, October 9 and December 31 of 1975. To do so would

amount to the Court substituting its discretion for that of

the County Commissioners on the action taken by the

Commissioners on all of the dates with the exception of

July 24, 1975. It is the opinion of this Court that the

various actions of the Board of County Commissioners,

i.e., on April 24, 1975, July 24, 1975, October 9, 1975 and

December 31, 1975 were not consistent with each other

nor are they consistent with the Petition and proposed

agreement now before the Court.

{ Appendix C, p. 28]

10

Under such circumstances the Pennsylvania courts were cer-

tainly justified in determining that they should not lend their

approval to the imbroglio created by the Commissioners’ in-

consistent actions.

The Westmoreland County Court en Banc found another

irregularity in the fact that the royalty payment terms of the

lease presented for court approval differed from the terms of

the bid submitted by Petitioner. While Petitioner’s bid offered

payment of 21% of the sale price of the coal mined or $5.11

per ton of coal, its proposed lease terms were 21% of the sale

price or $5.27 per ton of coal. Under Pennsylvania bid law

such a modification of bid terms is impermissible, Louchheim

v. Philadelphia, supra, especially under circumstances which

led the Westmoreland County Court en Banc to determine

that private negotiations had been entered into between

Petitioner and the County Commissioners between the time of

awarding the lease to Weiss Brothers and the subsequent

award of the lease to Petitioner [Appendix C, p. 30}.

The Commonwealth Court of Pennsylvania found that the

circumstances presented too many uncertainties as to exactly

what was awarded to Weiss Brothers by the County Com-

missioners’ resolution of April 24, 1975, and as to the process

whereby Petitioner’s bid price of $5.11 per ton was changed to

an award at the price of $5.27 per ton, and therefore conclud-

ed that the Westmoreland County Court en Banc had “‘exer-

cised a sound discretion in refusing to approve the proposed

lease to Fiore” [Appendix B, p. 20}.

111. The Pennsylvania Courts’ exercise of stztutory

discretion in refusing to approve the lease to Petitioner

because of irregularities in the bidding and awarding

procedures raises no federal questions cognizable by this

Court.

Respondent Westmoreland County submits that no federal

questions are involved in this case. Although Petitioner con-

tends that broad constitutional principles, such as separation

of powers and due process are involved herein, we submit

that each of Petitioner’s constitutional arguments is specious

and wholly without merit.

Petitioner contends that the doctrine of separation of

powers precludes the judiciary from disturbing an executive’s

decision absent fraud or unless the executive exceeds its

authority. Assuming arguendo that this accurately states the

proper constitutional relationship between the federal

judiciary and federal executive branches of government, it is

inapplicable to this case, which solely involves branches of

state government. Nothing in the Federal Constitution man-

dates a separation of powers with respect to state branch-

es of government. Thus, the only question in this case is

whether the Pennsylvania statute, which grants the judiciary

certain discretion in deciding whether to approve a lease,

violates the Pennsylvania Constitution. Clearly, this case

raises no federal question relating to the separation of powers.

Nor does this case raise any other federal questions.

Peiitioner contends that the Pennsylvania Courts’ refusal to

approve Petitioner's lease unconstitutionally impaired its con-

tract with the Westmoreland County Commissioner..

Initially, it must be noted that to succeed in its argument,

Petitioner must show that it had a contract under the existing

laws of the state, and that after the making of the contract,

the state legislature passed a law impairing the prior contract.

Oshkosh Waterworks Co. v. City of Oshkosh, 187 U.S. 437, 446,

12

47 L.Ed. 249, 253, 23 S.Ct. 234 (1903). The undisputed facts

in this case establish that the existing laws of Pennsylvania

required that the Westmoreland County Court of Common

Pleas approve the tenative lease before it would be final and

binding [Section 2306 of the County Code, Act of August 9.

1955, P.L. 323, 16 P.S. § 2306]; since the court never approved

Petitioner’s lease, no enforceable contract ever existed be-

tween Petitioner and the Westmoreland County Com-

missioners. Thus, Petitioner never had a contract that could

have been subject to unconstitutional impairment.

Assuming arguendo that a contract existed, the statute un-

der which the Westmoreland County Court refused to ap-

prove the lease was in effect prior to the making of the alleged

contract. This Court has specifically held that “the contract

clause of the Constitution of the United States has reference

only to a statute of a state enacted after the making of the con-

tract whose obligations is alleged to be impaired”. Oshkosh

Waterworks Co., supra, 187 U.S. at 446, 47 L.Ed. at 253 (em-

phasis added). Thus, Petitioner's alleged contract could not

have been unconstitutionally impairment by legislative enact-

ment.

Mcreover, as Petitioner concedes in its petition for cer-

tiorari, this clause of the Constitution only applies to

legislative enactment of statutes after a contract has been

made and not to changes in judicial interpretations of a statute

after a contract has been made. Tidal Oil Co. v. Flanagan, 263

U.S. 444, 6 L.Ed. 2d 386, 44 S.Ct. 199 (1923). Thus, assuming

arguendo that the Pennsylvania courts modified their in-

terpretation of the degree of judicial discretion accorded the

courts by the statute involved herein, this action does not

violate the constitutional prohibition regarding impairment

of contracts. Accordingly, Petitioner's entire argument on this

issue is disingenous and wholly without merit.

a _

ee ER een i ese

A EE RT oO

13

Petitioner’s final and equally unmeritorious argument is

that the statute on its face or as applied fails to set reasonably

clear standards to be followed by the court for reviewing a

proposed lease, in violation of the due process clause of the

Constitution. In positing this void-for-vagueness contention,

the only case Petitioner cites is Smith v. Groguen, 415 U.S. 566,

39 L.Ed. 2d 605, 94 S.Ct. 1242 (1974), a criminal case in-

volving first amendment issues. Indeed, the entire void-for-

vagueness doctrine rests on the due process theory that “ ‘men

of common intelligence’ not be forced to guess at the meaning

of the.criminal law”. Smith, supra, 415 U.S. at 574, 39 L.Ed.

2d at 612 (emphasis added). This theory, although necessary

to carry out the policy of strictly construing criminal statutes,

is inapplicable to a civil statute, as involved herein.

Conclusion

It is submitted that this case involves no federal questions,

and that even assuming arguendo that ii does, Petitioner failed

to raise any such federal questions in the courts below and,

thus, is precluded from raising them before this Court. In any

event, the Pennsylvania Courts appropriately exercised their

sound discretion in refusing to approve the coal lease in

question since there were numerous irregularities in the

procedures of bidding, negotiation, and petitioning for court

approval. For the reasons set forth in the foregoing

Argument, the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

IRVING L. BLOOM,

Attorney for Respondent,

County of Westmoreland.