# Opposition — Fiore v. County of Westmoreland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 923

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2571%3A2. Public record. Not legal advice.