Opposition — Fiore v. County of Westmoreland

D £ourt, U,

‘lI LED

APR 4 1070

SSSR an R. CLrPR

——

IN THE

Supreme Court of the United States

No. 78-1360

IN RE: LEASE OF COALy.ON COUNTY LANDS

SITUATE IN HEMPFIELD TOWNSHIP, WES'T-

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

THOMAS ANTON

16 North Pennsylvania Avenue

Greensburg, Pennsylvania 15601

Attorney for Respondent,

Weiss Brothers Leasing, Inc.

BATAVIA TIMES, APPELLATE COURT PRINTERS =e

EDWARD W. SHANNON, SENIOR REPRESENTATIVE

HAROLD L. BERKOBEN, REPRESENTATIVE

1701 PARKLINE OR., PITTSBURGH, PA. 182887

(418) 601-7463

INDEX.

Page

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

Counter-Statement of the Case...............eee000. 2

ee ee ey et se kk bbe heaves 4

Reasons for Refusing Petitioner’s Writ............... 4

Re Shue -

TABLE OF CASES.

Hibbs v. Aresnberg, 276 Pa. 24........cccsccscccves 7

Mutual Life Insurance Company of New York v.

McGrew, 188 U.S. 291, 47 L.Ed. 480, 23 S. Ct. 375

Lo PELE erg canto gy Dale ot tek ano eee 5

Pearlman v. Pittsburgh, et al., 304 Pa. 25............ 7

Thomas v. Iowa, 209 U.S. 258, 52 L.Ed 782, 28 S. Ct. 487

CL id Ais Sak eR aah Ob isp pik hy ob Mined Grin 5 0b 5

STATUTE.

County Code, Act of August 9, 1955, P.L. 323, Section

BO Oe Tees EEO Nk vib asinsnswscecteteunce 5,9

RULE.

Court’s Rule 23 (f) (U.S. Sup. Ct. Rule 23 (f), 28 USCA) 4

IN THE

Supreme Court of the United States

No. 78-1360

IN RE: LEASE OF COAL ON COUNTY LANDS SITUATE

IN HEMPFIELD TOWNSHIP, WESTMORELAND

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

It is the contention of the respondent Weiss Bros. Leasing,

Inc. 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 Fiore, for the

reason that no valid Federal or Constitutional question is in-

volved, and for the further reason that Petitioner failed to

raise a Federal or Constitutional issue before any of the State

Courts hearing this case below.

2

Counter-Statement of the Case

Respondent Weiss Bros. Leasing, Inc. adopts Petitioner’s

statement of the case with the following corrections of inac-

curate statements or omissions:

The evidence clearly indicates that Weiss Bros. Leasing,

Inc. of McKeesport, Pennsylvania was the highest and best

bidder in response to the advertisement of the County Com-

missioners soliciting bids. Weiss Bros. Leasing, Inc. by bid

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

13.17% of the sale price of the coal. There were eight other

bids submitted, the next highest being that of the Petitioner,

Fred Fiore Coal Company, which provided for payment of

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

testimony is just as clear that the County Commissioners when

they made their award on April 24, 1975 to Weiss Bros.

Leasing, Inc. were making an award to the highest and best

bidder in response to the advertisement soliciting bids. Their

then Chief Solicitor, H. Reginald Belden, Jr., testified that he

felt the award made on that date was an award to Weiss Bros.

Leasing, Inc. for the leasing of coal. He, pursuant to his in-

structions from the County Commissioners, specifically re-

quested Weiss Bros. Leasing, Inc. to submit a Proposed Lease

to the County Commissioners which Lease was prepared and

submitted by Weiss Bros. Leasing Inc. to the Westmoreland

County Board of Commissicaers. Mr. Belden also testified

that he felt the award made on July 24, 1975 to Fred Fiore

Coal Company was also an award to enter into a lease agree-

ment for the coal on the Westmoreland County property.

The Record of the hearing held by the Westmoreland

County Courts on April 1, 1977 and June 17, 1977

discloses considerable evidence of irregularities by the

Board of County Commissioners in their attempts to have

3

the coal removed by a responsible contractor and proper

royalty payments made to the County of Westmoreland. The

awarding by the County Commissioners on April 24, 1975 to

Weiss Bros. Leasing, Inc., the making of an award to Fred

Fiore Coal Company on July 24, 1975, the action of the

Board of County Commissioners on October 9, 1975

authorizing the County Solicitor to petition the Court to lease

the rights of the coal on the Westmoreland Manor property to

Weiss Bros. Leasing, Inc., the action of the Westmoreland

County Commissioners on December 31, 1975 advising the

County Solicitor to withdraw the petitions to the Court of

Common Pleas of Westmoreland County and the Common-

wealth Court of Pennsylvania requesting approval for strip-

mining of the coal on Westmoreland property in regard to

both the petitions of Weiss Bros. Leasing, Inc. and Fred Fiore

Coal Company, and the attempt of the County Commissioners

to award to the petitioner Fiore a lease for a royalty payment

which differed from the actual bid submitted by Fred Fiore

Coal Company which was $5.11 per ton rather than“. . . no

less than $5.27 per ton . . .” as was set forth in the petition

submitted to the Westmoreland County Court en Banc.

With the exception of tne Board of County Commissioner’s

action on April 24, 1975, none of the above actions of the

County Commissioners conforms with the law on normal bid-

ding procedures. The respondent Weiss Bros. Leasing, Inc.

does not agree with petitioner that the Federal issues asserted

in Fiore’s Petition for Certiorari were. raised in the Courts

below. Nowhere in the briefs or oral arguments before the

Caurts below were any such issues raised.

4

Statement of Questions

I. Were there any abuses of discretion by the Pennsylvania

Courts in refusing to approve the lease to Fred Fiore Coal

Company, which raised any Federal questions recognized by

this Court?

II. Did the Court of Common Pleas of Westmoreland

County, Pennsylvania, as affirmed by the Commonwealth and

Supreme Courts of Pennsylvania, acting within its staxutory

discretion in refusing to approve a lease between the re-

spondent Westmoreland County and Petitioner Fiore for

mining coal on County property where there were ir-

regularities in the bidding process and in the awarding of the

proposed lease, violate any Federal statutory or Constitu-

tional mai:dates?

Reasons for Refusing Petitioner’s Writ

I. We submit that Petitioner failed to comply with the

requirements of this Court’s Rule 23 (f) (U.S. Sup. Ct. Rule

23 (f), 28 USCA). Rule 23 (f) requires that in a Petition for

Certiorari, Petitioners state the stage of the proceedings at

which it raised a Federal question, the specific method and

manner in which it raised the question and the way the Lower

Courts passed on the question. The Petitioner is required to

set forth in its petition the specific quotations from the

Record that would establish that Petitioner previously raised

the question in a timely and proper fashion so that this Court

shall have jurisdiction. Although the Petition asserts that

Petitioner did raise the Federal question throughout the

proceedings in Pennsylvania Courts, no specific reference is

made as to where in the Record these questions were raised

and the action of the Pennsylvania Courts in regard to the ©

questions. If, as Petitioner would have us believe, these issues

5

had been raised in the Pennsylvania Courts, certainly said

Courts would have discussed the questions in their respective

Opinions. These Opinions are void as to any Federal

questions.

This Court has held that the assertion of a Federal claim

must be made clearly and not left to mere inference. Thomas

v. Iowa, 209 U.S. 258, 52 L.Ed 782, 28 S. Ct. 487 (1908):

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

U.S. 291, 309-310, 47 L.Ed. 480, 485, 23 S. Ct. 375 (1903).

We respectfully submit that Petitioner cannot at this point

raise Federal questions which they failed to present in the

Courts below.

II. The arguments of the Petitioner that the Pennsylvania

Courts are limited in their review powers do not have merit.

The Act of August 9, 1955, P.L. 323, Section 2306 (16 P.S.

Section 306) specifically directs that the Courts should con-

duct a hearing and “. . .make such order and decree as shall

seem right and proper. . . .”. Judge Rodgers in his Opinion

for the Pennsylvania Commonwealth Court in regard to this

case cited decisions of the Supreme Court of Pennsylvania as

follows:

“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 vs. Philadelphia, 391 Pa. 242, 137

A.2d 343 (1958). Normally they may not be restrained

from acting absent allegation and proof of fraud,

misconduct, abuse of discretion, or capricious and ar-

bitrary conduct. Hyam v. Upper Montgomery Joint

Authority, 399 Pa. 446, 160 A.2d 539 (1960). However, Sec-

tion 2306 requires that the court, in approving the lease,

exercise its sound discretion as well. See Baton Coal Com-

pany Appeal, 365 Pa. 519, 76 A.2d 194(1950), and McK ees

6

Rocks Borough School District Petition, 360 Pa. 285, 62

A.2d 20 (1948). 25 Pa. Commonwealth Ct. at 534, 360

A.2d at 851.” (emphasis added).

It is obvious from their Opinions that Judge Rodgers for

the Commonwealth Court and Judge McCormick for the

Court of Common Pleas of Westmoreland County were ap-

palled at the inconsistencies and irregularities which took

place in the attempts to have a lease agreement entered into

for the coal property of Westmoreland County. Judge

McCormick, speaking for the Westmoreland County Court en

Banc 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

24, October 9 and December 31, 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.”

For the Court en Banc of Westmoreland County to act dif-

ferently from the manner in which it did would constitute a

gross abuse of discretion under all of the circumstances

before it.

A review of the Record of the hearing before the Court en

Banc of Westmoreland County clearly indicates the Com-

missioners’ intention to enter into a lease agreement for the

stripping and mining of the coal on the Westmoreland County

property with Weiss Bros. Leasing, Inc. Weiss Bros. Leasing,

7

Inc. was the highest bidder and was instructed by the County

Solicitor to prepare a lease agreement, which was done. In

addition, Weiss Bros. Leasing, Inc. applied for and was

issued a mining permit for the subject coal property by the

Pennsylvania Department of Environmental Resources. This

could not have been done without the compliance by the

Board of County Commissioners with certain rule

requirements of the Department of Environmental Resources.

The Pennsylvania Supreme Court in the case of Pearlman v.

Pittsburgh, et al., 304 Pa. 25, p. 25 speaking generally as to the

concept, stated:

“ . it is a novel proposition that the bid of a perfectly

responsible party can be ignored. .. .the statute

requires that contracts be awarded to the lowest respon-

sible bidder and the Courts hold it is for the municipal

authorities to exercise a sound discretion to determine

who is such. . . .”

The opinion set forth in the Pearlman case was supported in

an Opinion by Mr. Justice Kephard speaking for the Court in

Hibbs v. Aresnberg, 276 Pa. 24, p. 29 when the Court said:

“ . . though the Directors were not bound in law to give

the contract to the lowest bidder, who might be irrespon-

sible, they were bound to investigate, and if a bidder

measured up to the law’s requirement as a responsible

party, the Board could not capriciously award the con-

”

tract to another. .. .

The County Commissioners in the present case did not give

notice to Weiss Bros. Leasing, Inc. to whom they had already

made an award nor to any other party in interest of the award

to the Petitioner Fiore. It is obvious that subsequent to the

award by the County Commissioners on April 24, 1975, the

Commissioners and Fiore entered into private negotiations

out of which the action of the Board of Commissioners on

July 24, 1975 emerged.

In the instant case, pursuant to a newspaper advertisement,

nine bids were received by the Controller of Westmoreland

County. Among others Fred Fiore Coal Company submitted a

bid based upon the tonnage of coal removed at the rate of

$5.11 per ton. The bid of Weiss Bros. Leasing, Inc. based on

the tonnage of coal removed was $5.27 per ton. Both of these

bids were dated March 18, 1975 and were opened by the

County Commissioners on that date. On April 24, 1975 the

bid of Weiss Bros. Leasing, Inc. was accepted. On July 24,

1975 the County Commissioners made an award to Fiore Coal

Company at a price which was different from the actual bid

submitted by Fiore. On October 9, 1975 the County Com-

missioners authorized the County Solicitor to petition the

Court en Banc to approve a coal lease to Weiss Bros. Leasing,

Inc. On December 31, 1975 the County Commissioners in-

structed the County Solicitor to withdraw the petitions for ap-

proval of lease agreements to the Court of Common Pleas of

Westmoreland County. All o* these actions by the Board of

County Commissioners were inconsistent with each other. The

Court en Banc of Westmoreland County obviously agrees that

there were considerable inconsistencies and irregularities

throughout this matter and therefore disapproved the Petition

accordingly. The Commonwealth Court of Pennsylvania also

agreed with the Westmoreland County Court en Banc. Judge

Rodgers of the Commonwealth Court stated in his Opinion

that the Lower Court had “. . .exercised a sound discretion

in refusing to approve the proposed lease to Fiore”’.

9

Conclusion

Respondent Weiss Bros. Leasing, Inc. respectfully submits

that there are no Federal questions involved in this matter.

There is no unconstitutional impairment of contract between

Fiore and Westmoreland County Commissioners. Under the

statute here before the Court, there is no contract until a con-

tract or lease is submitted to the Court for approval and is ap-

proved by the Court. Section 2306 of the County Code, Act of

August 9, 1955, P.L. 323, 16 P.S. 2306.

It is further submitted that the Pet.tioner fails to raise any

issues which constitute Federal Questions at any stage of this

case and therefore is precluded from raising them before this

Court. There is no evidence that the Pennsylvania Courts

exercised anything but sound discretion in refusing to ap-

prove the coal lease submitted since there were numerous in-

consistencies and irregularities in the procedures followed by

the County Commissioners and Fred Fiore Coal Company.

For these reasons, the Petition of Fred Fiore should be

denied.

Respectfully submitted,

THOMAS ANTON,

Attorney for Respondent—

Weiss Brothers Leasing, Inc.