Petition for Writ of Certiorari — City of Philadelphia v. Concerned Citizens

Supreme Court, U.S,

88-143 FILED

JUL 25 1988

No. - aWOSEPH E. SPANIOL, JR,

In the Supreme Court

of the Ganited States

OCTOBER TERM, 1987

THE CITY OF PHILADELPHIA, and

JAMES STANLEY WHITE, in his capacity as

MANAGING DIRECTOR, and

WILLIAM J. MARRAZZO, in his capacity as

WATER COMMISSIONER,

Petitioners,

CONCERNED CITIZENS OF BRIDESBURG, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SEYMOUR KURLAND, CITY SOLICITOR

A Member Of The Bar Of This Court

DENISE D. COLLIERS,

Divisional Deputy City Solicitor

PATRICK K. O'NEILL,

Assistant City Solicitor

City of Philadelphia, Law Department

1540 Municipal Services Building

15th Street & J.F. Kennedy Boulevard

Philadelphia, PA 19102-1692

(215) 686-5233

Counsel for Petitioners

= ———— iti >

QUESTIONS PRESENTED

1. Whether the action of an administrative agency,

which the agency admits contravenes its statutory mandate,

can provide the basis for federal subject matter jurisdiction in

a citizen enforcement suit under the Clean Air Act?

2. Whether the District Court, after the merits trial, can,

sua sponte, assert subject matter jurisdiction based on the

common law of nuisance when there exists no substantial

federal claim and where no such pendent state claim had

been alleged by plaintiffs?

3. Whether the District Court can employ equity, in a

case decided on common law nuisance, to do that which is

specifically prohibited by the Pennsylvania Political Subdivi-

sion Tort Claims Act?

4. Whether a District Court can assess compensatory

damages, where the court itself admits there is no evidence of

damages?

LIST OF PARTIES

The parties to the proceedings before the United States

Court of Appeals for the Third Circuit were appellants, the

City of Philadelphia, James Stanley White, in his capacity as

Managing Director; and William J. Marrazzo, in his capacity

as Water Commissioner; and appellees, the Concerned Citi-

zens of Bridesburg; James Coppola; Robert Kumosinski; Mia

Ptak; Kathleen Coppola; Harry MHagendey; Kathleen

Hagendey; Elizabeth Rickey; Frances Pfeiffer; Joseph

Pfeiffer, Edward Ludigan; Anthony Les; Ethel R. Mitchell;

Charles A. Finnegan; Michael Butler; Al Lewandowski; Linda

Lewandowski; Karen Dylinski; Charles H. Combs; Ethel Ma-

rinuk; Karen Arenweh; Cecilia Pawlowska; Delores Short;

Vincent Dombrowski; Barbara Lynn Portoni; Mary Elton;

Ruth C. Groff; Anna-May Burns; Edna Donachie; Edna King-

ston; Dennis J. Foster; Kelly Charlton; Mark D. Haug; Tillie

Piergrossi; Joe Larsen; Sue Larsen; John Waters Auto Sales;

Rich Sileo; Agnes Antonelli; Albert Mantici; Robert J. Portone;

Thelma Schmidt; Betty Long; Mark Fronceh; Toni Francek;

Bill Conceptal; Del Conceptal; Linda Wolk; Clair Fern; Pear!

McGovern: Louis Kozlowski; Gelwin Pusicz; Joyce Ripso;

Stacey Southerland; Tina Auerweck; Elizabeth Auerweck; Er-

nest Marinuk; T. Yodin; Cynthia Moscicki; James O. Respo;

Marie Gorski; Florence James; Joel James; Angel Romer;

Stephanie Novak; Nellie Novak; Sue O’Donnell; Bill O'Don-

nell: Edward Pihala, Sr.; John McLaverty; Bennett Hill; An-

thony Calo; C. William; Robert Flanagen; Bobby Rekala;

Maureen Kumosinski; Anna M. Pawloski; Stanley M.

Pauloski; Michael M. Lisicki; Linda A. Lisicki; Emily

Kumosinski; Nancy McMaster; Frank Kumosinski; Andy

Palka; Amey E. Howard; Katherine Coppola; Josephine Gor-

don; Anna Konopka; Arlene Kurpaska; John Pendergrast;

Betty Pendergrast; Phil Lerman; Esther Lerman; Linda

Flynn; Virginia Wagner; Pauline James; Justine Hayes; Peter

Bingel; Joan Bingel; Michael Parcale; Helen Mason; Florence

Peoccaineri; William Malloy; William R. Hood; Herb Roren-

berger; William Moronese; Jack Renfe; Perry M. Smith; John

ii

ee

—

Svitak; John Atkinson; Michael H. Stark; Wendy Prince; De-

lores Berger; Stanley Berger; Betty Higham; Mary Lucy Col-

lins; Ronnie Kirby; Mary Gogoj; William Melley; Ellen Casey;

Sharon Gibson; Lise Cuich; Linda Froncek; Rita Palka: Jac-

queline Parttezzia; Walter Kozlowski; Christina Serpico; Elea-

nor McKinley; Stephie Byrme; Shen Turner and Mary Yoder.

In the proceedings before the United States District

Court for the Eastern District of Pennsylvania, the parties

included two additional entities: Rohm & Haas Corporation

and Allied Corporation, defendant-intervenors. At the time

the suit was commenced Leo A. Brooks was Managing Direc-

tor. In addition the Philadelphia Water Department was dis-

missed as a plaintiff in the District Court.

The respondents before this Court include those named

above as appellees in the proceedings before the United States

Court of Appeals for the Third Circuit.

TABLE OF CONTENTS

Page |

QUESTIONS PRESENTED ...................--.-. |

LIST OF PARTIES...............0...ccccccceceeees i |

TABLE OF CONTENTS..............----- 2200-00. iv

TABLE OF AUTHORITIES ......................... vi

OPINIONS BELOW ...................0.-2eceeeee.

JURIGDICTION ..........00..cccccccccecccccscscee

CONSTITUTIONAL, STATUTORY AND REGULA-

TORY PROVISIONS ...............--0-. 200. eee ee. 4

STATEMENT OF THE CASE ..................-.0-- 5

REASONS WHY A WRIT SHOULD BEGRANTED ..._ 12

I. There Exists A Conflict Between The Third

And Seventh Circuits As To Whether Private

Plaintiffs Can Sue Under SIP Provisions That

i PE Saul Jo ora seen eek cea eaa ives 12

II. The Decision Below Violates the Basic Princi-

ple That Federal Courts Are Courts of Limited

pa RO ed gan) pale: 2s. Agen fine 17

A. Congress by Implication Has Negated Pen-

dent Jurisdiction for Odor Regulations.... 18

B. As There Was No Substantial Federal

Claim the District Court Was Without

Power or Discretion to Exercise Pendent

IR ae re Pied es 19

III. The Trial Court’s Sua Sponte Assertion of Pen-

dent Jurisdiction Two and One-Half Months

After the Merits Trial Violates Not Only the

Doctrines of Judicial Self-Restraint and Pen-

dent Jurisdiction But Also the Due Process

I has at ee re ee a a 21

iv

aie ieee

TABLE OF CONTENTS—(Continued )

Page

IV. The Imposition of Fines to Compensate Re-

spondents for Violations of State and Local

Regulations Contravenes State Law and

Flagrantly Ignores the Erie Doctrine ........ 23

CRISPs Sisis o even cee aka cee ee eee . 26

APPENDIX (Bound Separately )

Opinion, Court of Appeals ...................... A-]

Order, Court of Appeals Sur Petition for Rehearing. A-10

Order, Court of Appeals Staying Mandate ......... A-1]

Opinion and Order, District Court

4 ig 8 RP re a et rere A-12

Opinion and Order, District Court (July 28, 1986) . A-24

Order Requesting Amicus Brief.................. A-59

are NC CU BE ko cvc ic ascscsaedbaecs A-61

CF. SE: Te isk Sok 6s eas eee eae tn A-67

Section 110(a) of the Clean Air Act,

Rie SO ye reper errr eet A-68

Section 304(a) of the Clean Air Act,

SEU BS ee bia wean eves ee ssaeeeuee A-72

PUNE Ge PE 5 co Sn de vk caccxceaveees A-73

Ee SE HIE io kg cw anc sa eeas eee ee a A-77

Pennsylvania Political Tort Claims Subdivision

Ack; 4 a CR Ses GR ee cc ccccscsrae A-88

Pennsylvania Air Pollution Control Act,

+t ee Ee rer ore 4-95

Opinion, Court of Appeals in Concerned Citizens

OS ys sv ces oe ey “eos anes Oe A-96

TABLE OF AUTHORITIES

Cases Cited: Page

Adamo Wrecking Co. v. United States, 434 U.S. 275

CUO ee chs 0set obeechwaharecdewtis vie 13

Aldinger v. Howard, 427 U.S. 1 (1976)... 2.000000... 18

American Trucking Association v. Frisco Transportation

oe ik et errr 16

Ayala v. Philadelphia Board of Public Education, 453 Pa.

SP, Ow Te CIN és iv ecdiescencdewakes 24

Ayers, ex parte, 123 U.S. 445 (1887) ................. 17

Bell v. Hood, 327 U.S. 678 (1946)... 2... oe 20

Buskirk v. Seiple, 560 F. Supp. 247 (E.D.Pa. 1983)... .. 24

Carroll v. County of York, 496 Pa. 363, 437 A.2d 394

CPE: vn ccccdecsdveveevncnneseeebicheeexedta 24

Columbia Manufacturing Corp. v. National Labor Rela-

tions Board, 715 F.2d 1409 (9th Cir. 1983)....... 17-18

Concerned Citizens of Bridesburg v. Philadelphia Water

Department, 843 F.2d 679 (3d Cir. 1988)......... 2,15

Concerned Citizens of Bridesburg v. Philadelphia Water

Department, 643 F.Supp. 713 (E.D.Pa. 1986) 2, 9-10, 22

Concerned Citizens of Bridesburg v. Philadelphia Water

Department, Slip Opinion, No., 85-0014, January

Be, BOOT CBRE) oo vc cc caciccecceves 2, 10-11, 23-24

Concerned Citizens of Bridesburg, et al. v. U.S. Environ-

mental Protection Agency, 836 F.2d 777 (3d Cir.

§ PRELPRE Te TE oe eee 15-16

Dixon v. United States, 381 U.S. 68 (1965)... 2.2... 13, 16

Erie v. Tompkins, 304 U.S. 64 (1938)... 2.000000. 23, 25

Ernst & Ernst v. Hochfelder, 425 U.S. 185. reh. denied.

Gp Ss We Ce so nckcccchurea eee 13

TABLE OF AUTHORITIES— Continued )

Cases Cited: Page

Griggs v. Provident Consumer Discount Co., 459 U.S. 56

1 SP Eerr rrr rer err rer Tt Tre 13

Leman v. Krenter-Arnold Hinge Last Co., 284 U.S. 448

Ps ot egal cunuesedencuenevanahaekes yee |i

Lechtner v. Brownyard, 679 F.2d 322 (3d Cir. 1982).... 20

Levering & Garriques Co. v. Morrin, 289 U.S. 103(1933) 20

Lopuszanski v. Fabey, 560 F.Supp 3 (E.D.Pa. 1982)... 24-25

Manhattan General Equipment v. Commissioner, 297

cl eee ha aa eens enna 13

Mansfield, Coldwater & Lake Michigan Ry. v. Swann, Ill

a rn So oO eae ee ae 17

Marshall v. Gibson’s Products, Inc., 584 F.2d 668 (Sth Cir

aE a A eS Aw pty ey 17

Mayor of Philadelphia v. Educational —— League,

eee Geen . cs nc casnenanesaenadanboes 21

McKart v. United States, 395 U.S. 185 (1969)... .. ies eae

Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365

SS fee. ela eee ieee kaeeeumnenl me

People v. Celotex Corp., 516 F.Supp. 716 (C.D. Ill. 1981). 16

Ruiz v. Estelle, 679 F.2d 1115 (Sth Cir. 1982), opinion

amended in part, 688 F.2d 266 (Sth Cir. 1982), cert.

denied, 460 U.S. 1042 (1983) . Seer ais Wena a

Sawyer, In re, 124 U.S. 200 (1888)... cae ealie ae ee

Sierra Club v. Indiana-Kentucky Electric nen 716 F.2d

1145 (7th Cir. 1983) ......... a cae ae

vil

TABLE OF AUTHORITIES— Continued

Cases Cited: Page

United Mine Workers v. Gibbs, 383 U.S. 715 (1976 20-21

United States v. Larionoff, 431 U.S. 864 (1977 13

United States v. North Hempstead, 610 F.2d 1025 (2d Cir

1979 19

United States v. Turkette, 452 U.S. 576 (198) 16

United States v. United Mine Workers of America, 330

U.S. 258 (1947 17

Van Gement v. Boeing Co., 553 F.2d 812 (2d Cir. 1977 23

Watts v. Pickney, 735 F.2d 406 (9th Cir. 1985 17

Federal Constitutiom. Statutes and Regulations:

U.S. Constitution, Arti? II], Section 2 18, 19, 20

U.S. Constitution, Amendment \ 12, 13, 23, 24

12 U.S.C. § 7410(a 6, 14, 15, 18 |

12U S.C. § 7604(a 2, 22

28 U.S.C. § 12540) 3

16 Fed. Reg. 51,610 4

16 Fed. Reg. 26,303 13

16 Fed. Reg. 43.141 13

17 Fed. Reg. 22,531 13

390 Fed. Reg. 32.45] 7

91 Fed. Reg. 18,438 8.15

FR.Civ. P. 12(b\1 20

FR.Civ. P. 12(b\6 20

FR.Civ. P. 56 20

Vill

TABLE OF AUTHORITIES—( Continued

Federal Constitution, Statutes and Regulations: Page

F.R.Civ. P. 60(b\( 4) 17

Commonwealth Statutes:

Pa. Air Pollution Control Act

35 PS. § 4001 et seq 10, 11, 25

35 PS. § 401004f i)

Pa. Political Subdivision Tort Claims Act,

12 Pa.C.S. § 854] 23, 24, 25

§ 8542 24

City of Philadelphia Ordinance and Regulation

Philadelphia Air Management Code, 3 Phila. Code § 101

et seq 10,11, 25

In the Supreme Court

of the Guited States

OCTOBER TERM, 1987

THE CITY OF PHILADELPHIA, and

JAMES STANLEY WHITE, in his capacity as

MANAGING DIRECTOR, and

WILLIAM J. MARRAZZO, in his capacity as

WATER COMMISSIONER,

Petitioners,

CONCERNED CITIZENS OF BRIDESBURG, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners, the City of Philadelphia, James Stanley

White in his capacity as Managing Director, and William J.

Marrazzo in his capacity as Water Commissioner, respectfully

pray that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Third

Circuit, entered in the above-entitled proceeding on March

31, 1988, rehearing denied April 25, 1988.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Third Circuit is reported at 843 F.2d 679 (3d Cir. 1988), and is

reprinted in the appendix hereto, p. A-1, infra.

The January 28, 1987 Memorandum Opinion and Order

of the District Court (VanArtsdalen, J) has not been reported.

it is reprinted in the appendix hereto. p. A-12, infra.

The July 25, 1986 Memorandum opinion and order of the

United States District Court for the Eastern District of Penn-

sylvania (VanArtsdalen, D.J.) is reported at 643 F.Supp. 713

(E.D.Pa. 1986), and is reprinted in the appendix at p. A-24,

infra.

JURISDICTION

The judgment of the Court of Appeals was entered on

March 31, 198°; a timely petition for rehearing was denied on

April 25, 1988.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

ARE SET FORTH IN THE APPENDIX

U.S. Const. Amend V.

Section 110(a) of the Clean Air Act, 42 U.S.C. § 7410(a)

Section 304 of the Clean Air Act, 42 U.S.C. § 7604

50 Fed. Reg. 3245]

51 Fed. Reg. 18438

Pennsylvania Air Pollution Control Act 35 P.S. § 4010(f)

Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.

8541 et seq.

STATEMENT OF CASE

Respondents, on January 3, 1985, initiated this action in

the District Court solely on the basis of the citizen suit en-

forcement provisions of the Clean Air Act, 42 U.S.C. § 7604,

p. A-47, infra to enforce the odor regulations which had been

inadvertently approved by the United States Environmental

Protection Agency (“EPA”) for inclusion in the Pennsylvania

State Implementation Plan (“SIP”). An amended complaint

was filed on April 12, 1985, naming additional individuals as

plaintiffs and correcting certain statutory citations. Both of

these complaints are entitled “Citizen Lawsuit Complaint To

Enforce Clean Air Act, 42 U.S.C. § 7401 et seq, In respect to

the City of Philadelphia's Northeast Water Pollution Control

Plant” The latter complaint merely added the word

“Amended” to its title. At the oral argument held on re-

spondents’ motion for summary judgment, their counsel

characterized the amended complaint as follows:

Mr. Balter:

This is a citizen lawsuit enforcement action to enforce

the odor regulation in the Pennsylvania State Implemen-

tation Plan, a regulation under the Clean Air Act. The

Citizen lawsuit is brought pursuant to section three zero

four, [42 U.S.C. § 7604].

(Ir. Sept. 16, 1985 at 4}.

The graveman of the two complaints was that the North-

east Water Pollution Control Plant (“the Plant”), which treats

raw sewage prior to its discharge in the Delaware River, was

emitting odors into the community adjacent to the Plant.

As an initial matter, petitioners raised the question of the

District Court’s jurisdiction over the subject matter of this

action by means of a motion to dismiss the complaint, which

motion was filed on January 31, 1985. The basis for the claim

of lack of subject matter jurisdiction was premised upon the

lack of the Congressionally-mandated nexus between the odor

regulations and the national ambient air quality standards;

that they had been improperly and inadvertently included in

the SIP; and that such inclusion, which contravened the

Congressional mandate set forth in Section 110(a) of the

Clean Air Act, 42 U.S.C. § 7410(a), was a nullity. Petitioners

documented this position by producing to the District Court a

copy of a letter dated April 1, 1983 from EPA to the Pennsylva-

nia Department of Environmental Resources (“DER”), in

which EPA advised DER that:

Although EPA initially approved the odor regulations in

1972 as part of the basic SIP, this was an error. EPA does

not have the authority to enforce odor regulations and we

do not anticipate receiving such authority from Congress

in the foreseeable future. Because of this, we have not

and will not enforce the existing odor regulations.

[Exhibit “A” to Defendants’ Reply to Plaintiffs’ Memorandum

In Opposition to Motion to Dismiss}.

In light of the City’s motion to dismiss, the trial court on

February 19, 1985 issued an order that requested EPA to file

an amicus curiae brief on this issue. On March 20, 1985, EPA

did file an amicus curiae brief in which it acknowledged that

Section 110(a)(2) of the Clean Air Act required EPA to ap-

prove as part of SIPs only those provisions which significantly

contribute to the attainment and maintenance of the national

ambient air quality standards (“NAAQS”) and that the odor

emission regulations bore no such relationship to the NAAQS.

The agency also advised the court that:

EPA recognizes the problem raised by its approval of the

state odor emission regulations. In reviewing SIPs, EPA

is governed by the criteria in section 110(a)(2) of the

Clean Air Act, which requires measures for the attain-

ment and maintenance of the primary and secondary

NAAQS. In order for EPA to approve a state rule as part of

the SIP, the rule must significantly control emissions that

contribute, directly or indirectly to concentraticns of pol-

lutants for which a NAAQS has been established. Yet the

City of Philadelphia points out here, and EPA agrees, that

the state odor emission regulations bear no relationship

to the attainment or maintenance of any NAAQS.

|p. A-63, infra]. EPA further advised the trial court of its

intention to delete the odor emission regulations from the

Pennsylvania SIP. {[pp. A-63—A-64, infra].

The motion to dismiss for, inter alia, lack of subject

matter jurisdiction was denied by order dated April 25, 1985,

in which the District Court substituted its own independent

assessment of the relationship between the odor regulations

and the NAAQS for that of EPA: “[t]he odor emission regula-

tions at issue are ‘more stringent than those necessary to

meet the minimal requirements of the primary and secondary

ambient air quality standards” {April 25, 1985 Order at p.

16]. The District Court then held that the City had failed to

show that the odor emission regulations were wholly unre-

lated to the NAAQS:

Defendant City’s motion to dismiss fails for the same

reason as that articulated above. In order for the odor

emission regulations not to be related in any way to the

implementation of the ambient air quality standards, the

City must show that odor emissions are wholly unrelated

to the emission of any pollutants for which there are

ambient air quality standards. Defendants have failed to

show that the “malodorous air contaminants” proscribed

in the state odor emission regulations, which are part of

the SIP, are “wholly unrelated” to the emission of any “air

pollutants” proscribed by the CAA [Clean Air Act].

(Id. at p. 18]

On August 12, 1985, EPA published in the Federal Regis-

ter notice of its intent to delete the odor emission regulations

from the Pennsylvania SIP. [p. A-73, infra|. An extended

sixty-day public comment period was held.

Expressly because of the imminence of EPA’s Final Rule

deleting the odor emission regulations from the Pennsylvania

SIP, respondents moved on March 21, 1986, to amend their

complaint for a second time to include the organic solvent

provisions of Philadelphia Air Management Regulation V, Sec-

tion X. The expressed purpose of this proposed amendment

was so that the trial court might retain jurisdiction over the

action.

Petitioners and defendant-intervenors opposed the mo-

tion on, among other grounds, that to allow such amendment

would prove futile as the organic solvent regulations were not

applicable to wastewater treatment plants and that the motion

was not made in good faith because it was an attempt to

manufacture federal jurisdiction in the absence of any legal

foundation.

On April 22, 1986, the District Court, despite being “in-

clined to agree with defendants’ interpretation |of the inap-

plicability| of the regulation,” granted Appellees’ motion to

amend. However, no such amended complaint was ever filed.

The Final Rule, deleting the Pennsylvania SIP, was

signed on Friday, May 2, 1986 by Lee M. Thomas, EPA's

Administrator, and was published in the Federal Register on

May 20, 1986 |p. A-77, infra].

In that document EPA reiterated its position that there

was no direct or indirect relationship between the odor emis-

sion regulations and the criteria pollutants for which NAAQS

had been established. [p. A-77, infra]. EPA further charac-

terized the Final Rule as “corrective action ... to remedy an

oversight in inadvertently approving the odor regulations.” |p.

A-82, infra}.

Immediately, upon receipt of notice of the May 2, 1986

signing of the Final Rule, counsel for petitioners advised the

District Court as well as respondents’ counsel of her intent to

file on May 5, 1986 before trial was scheduled to commence a

summary judgment motion, premised on the lack of subject

matter jurisdiction. Said motion was filed on May 5, 1986. At

that time, the trial judge, the Honorable Donald W. Van-

Artscs’en acknowledged that he did not believe that he could

grant relsef under the federal Clean Air Act. [Tr. May 5, 1986

at p. 1-22]. Subsequently, respondents’ counsel asserted for

the first time—in direct contravention of what he had advised

the trial court and all other counsel in September 1985 [Tr.

May 5, 1986 at p. 1-19|—that respondents had included in

their amended complaint a pendent state law claim. |Tr. May

5, 1986 at pp. 1-13—1-17]. Thus, on May 5, 1986, just prior to

commencement of trial, respondents’ counsel for the first

time advised the trial court and all other parties to the litiga-

tion that it had asserted claims under the citizen suit provi-

sion of Pennsylvania Air Pollution Control Act, 35 PS.

§ 4010(f).

Over the objection of petitioners and the two defendant-

intervenors, the District Court proceeded to preside over the

merits trial, even though the District Court had acknowl-

edged that no relief could be granted under the Clean Air Act.

One can only assume that the court permitted respondents to

present their case-in-chief under the mistaken assumption

that the amended complaint could be maintained under the

Pennsylvania Air Pollution Control Act. As the petitioners had

had no prior notice of a pendent state claim either statutory or

common law—prior to the commencement of the trial—it

was not until the close of respondents’ case-in-chief that peti-

tioners’ counsel was able to advise the District Court of re-

spondents’ failure to comply with the jurisdictional prerequi-

site for the maintenance of a citizen enforcement action

under the state act. The trial court was advised that Section

4010(f) of the Pennsylvania Air Pollution Control Act, 35 PS.

§ 4010(f), required respondents to give the Attorney General

thirty days’ notice prior to the commencement of any action

under the state act.

Even after this issue of the failure to meet this jurisdic-

tional prerequisite under the Pennsylvania Air Pollution Con-

trol Act had been raised before the District Court and the

renewal of the City’s May 5, 1986 summary judgment motion,

the trial proceedings continued to completion.

In the Order dated July 25, 1986 and entered by the clerk

on July 28, 1986, the District Court held that respondents

could not maintain this action under the Pennsylvania Air

Pollution Control Act as they had failed to satisfy jurisdic-

tional prerequisite of Section 4010(f) of said Act. [p. A-49,

infra|. However, the trial court, sua sponte, asserted its juris-

10

diction over the underlying litigation on the basis of common

law nuisance. {pp. A-50—A-51, infra].

The July 25, 1986 Order enjoined the City from operat-

ing the Northeast Water Pollution Control Plant (“the Plant”)

in violation of the Pennsylvania Air Pollution Control Act, 35

PS. §§ 4001 et seqg., and the Philadelphia Air Management

Code, 3 Philadelphia Code §§ 101 et seq. In addition, the

Court ordered the Plant tc be operated and maintained so as

not to cause any malodor of such intensity, quantity and

concentration as unreasonably to cause, injury, harm, an-

novance and discomfort to persons of normal sensibilities.

|p. A-56, infra}.

On October 14, 1986, respondents moved to have the

petitioners held in contempt of the July 25, 1986 Order.

Petitioners denied that they were in contempt of the trial

court’ order on the grounds that the majority of odors com-

plained of were from barely detectable to light and mild in

intensity and were odors incidental to any well-operated and

well-maintained plant; and that odors which were strong were

attributable to reasons beyond the control of the Petitioners,

e.g., the occurrence of a natural phenomenon, Nocardia,

which industry experts have not found a means of preventing;

the failure of the independent sludge dewatering contractor's

equipment; and other equipment failure. Petitioners also

maintained that with respect to five alleged odor events, there

were no malodors emitted from the Plant.

During the contempt hearing, which commenced De-

cember 1, 1986, the City again moved to dismiss the underly-

ing complaint due to lack of subject matter jurisdiction. | Tr.

December 1, 1986 at p. 10}. The trial court declared the

motion to be a continuing one and denied it. [Tr. Dec. 1, 1986

pp. 10-11]

By order dated January 28, 1987, the District Court held

petitioners in contempt of the July 25, 1986 Order. |p. A-21;

infra|. The January 28, 1986 Order requires the City, inter

alia, to pay Ten Thousand Dollars ($10,000.00) to the Court

upon the occurrence of the issuance of three (3) notices of

violation of the Pennsylvania Air Pollution Control Act and/or

suena

l]

the Philadelphia Air Management Code. The money is to be

used expressly to compensate parties who have suffered

damages attributable to the violation of the state statute or the

local ordinance. |p. A-22 infra

[he terms of the July 25, 1986 Order were expressly

continued in paragraph 4 of the January 28, 1987 Order

p. A-23, infra

\ timely notice of appeal from the January 28, 1987

Order was filed on February 23, 1987. Oral argument was

held before the Third Circuit panel on October 20, 1987. The

Third Circuit affirmed the District Court’s opinion on March

31, 1988. A timely petition for rehearing was denied on April

25, 1988

12

REASONS WHY A WRIT SHOULD BE GRANTED

Questions of fundamental importance to the precept that

federal courts are courts of limited jurisdiction are presented

in this case, including

1. when is a federal claim so insubstantial or frivolous as

to warrant dismissal for want of subject matter jurisdiction;

2. when is a federal claim so insubstantial that there

exists no power to exercise pendent jurisdiction;

3. when is a federal court deprived of the power to exer-

cise pendent jurisdiction because Congress in the Clean Air

Act has, at least by implication, negated such power (the

Second Circuit and the Third Circuit are in apparent conflict

on the issue);

4. when, consistent with the Due Process Clause of the

Fifth Amendment, can a trial court of its own volition assert a

pendent state claim (the Third Circuit and the Fifth Circuit

are in conflict on this issue); and

5. when can a court presiding over a state claim ignore

the statutory law of that state

This case also presents for resolution the conflict be-

tween the Third Circuit and the Seventh Circuit as to

whether individuals can institute suit in federal court, under

the citizen enforcement provisions of the Clean Air Act, for

alleged violations of provisions that are admitted to be invalid

by EPA but which have not yet been repealed. Included in the

question is whether the Fifth Amendment permits a munici-

pal government to be prosecuted in federal court for violation

of an administrative action that the administrative agency

itself acknowledges was beyond its statutory mandate

In order to resolve these fundamental constitutional and

statutory questions, the Writ of Certiorari should be granted

I. There Exists A Conflict Between The Third And Sev-

enth Circuits As To Whether Private Plaintiffs Un-

der The Clean Air Act Can Sue Under SIP Provisions

That Are Nullities

This Court has repeatedly held that, if an Executive

13

Agency acts inconsistently with the statutorv mandate of Con-

gress, that action is a nullity.

“The power of an administrative officer or board to

administer a federal statute and to prescribe rules and

regulations to that end is ...{only| the power to adopt

regulations to carrv into effect the will of Congress as

expressed by the statute. A regulation which does not do

this, but operates to create a rule out of harmony with the

statute, is a mere nullity.” Manhattan General Equip. Co.

vu. Commissioner, 297 U.S. 129, 134, 56 S. Ct. 397, 400,

80 L.Ed. 528 (1936). See, eg. Ernst & Ernst vu.

Hochfelder, 425 U.S. 185, 213-214, 96 S. Ct. 1375, 1391,

17 L.Ed2d 668 (1976); Dixon v. United States, 381 U.S

68, 74, 85 S. Ct. 1301, 1305, 14 L.Ed. 2d 223 (1965).

United States v. Larionoff. 431 U.S. 864, 873 n.12 (1977),

A nullity has absolutely no effect at law (Griggs v. Pro-

vident Consumer Discount Co., 459 U.S. 56 (1982) and mav

not be the basis for a federal prosecution. See e.g., Adamo

Wrecking Co. v. United States, 395 U.S. 185 (1969), and

McKart vu. United States, 395 U.S. 185 (1969). Thus, enforce-

ment in a federal court of an administrative action that repre-

sents a nullity violates the Due Process Clause of the Fifth

Amendment to the United States Constitution.

EPA, the agency charged by Congress with the imple-

mentation of the Clean Air Act, has since at least as early as

1981! taken the position that the odor regulations could not be

approved for inclusion in the Pennsylvania SIP as such ap-

proval exceeded its statutory mandate: In 1981, EPA in re-

|. Moreover, in May 1981, without public comment, EPA refused to

approve odor control regulations which had been submitted by Guam for

inclusion in its SIP on the ground that “thev are not specifically directed at

the NAAQS” 46 Fed. Reg. 26,303 (May 12, 1981). Similarly, in August

1981, again without public comment, EPA refused to approve odor control

provisions for the Nevada SIP on the ground that “they are not appropriate

tor incorporation into the SIP” 46 Fed. Reg. 43, 141 (Aug. 27, 1981). Like

wise, in May 1982, EPA refused to approve in the lowa SIP regulations

controlling odors “for which EPA has not adopted standards and does not

require control” 47 Fed. Reg. 22.531 (May 25, 1982

14

viewing Allegheny County's submission for inclusion in the

Pennsylvania SIP refused to approve that county’s odor reg-

ulations as part of the SIP:

EPA does not have the authority to enforce odor regula-

tions [§ 404 of the County’s Regulations|. Therefore, they

are not being approved as part of the SIP.

46 Fed. Reg. 51610 (October 21, 1981) [Memorandum of Law

In Support of Motion to Dismiss pp. 8-9, and Exhibit “B”

attached thereto]. Consistent with that position EPA advised

the Pennsylvania Department of Environmental Resources

(“DER”) that any prior approvals of odor regulations for inclu-

sion in the Pennsylvania SIP had been inadvertent and had

exceeded the mandate set forth in Section 110(a) of the Clean

Air Act, 42 U.S.C. § 7410(a). Thus, they were not enforceable:

Although EPA initially approved the odor regulations in

1972 as part of the basic SIP, this was an error. EPA does

not have the authority to enforce odor regulations and we

do not anticipate receiving such authority from Congress

in the foreseeable future. Because of this, we have not

and will not enforce the existing odor regulations.

Letter, dated April 1, 1983 from EPA to the Pennsylvania

Department of Environmental Resources. [Exhibit “A” to De-

fendants Reply to Plaintiffs’ Memorandum In Opposition to

Motion to Dismiss}.

In its amicus curiae brief before the District Court, EPA

once again confirmed that its approval of the odor regulations

as part of the Pennsylvania SIP conflicted with its statutory

mandate:

EPA recognizes the problem raised by its approval of

the state odor emission regulations. In reviewing SIPs,

EPA is governed by the criteria in section 1 10(a)(2) of the

Clean Air Act, which requires measures for the attain-

ment and maintenance of the primary and secondary

NAAQS. In order for EPA to approve a state rule as part of

the SIP, the rule must significantly control emissions that

15

contribute, directly or indirectly, to concentrations of pol-

jutants for which a NAAQS has been established. Yet the

City of Philadelphia points out here, and EPA agrees, that

the state odor emission regulations bear no relationship

to the attainment or maintenance of any NAAQS.

[p. A-63, infra}.

In its Final Rule EPA reiterated the requisite statutory

nexus for approval of state and local measures as part of a

federally enforceable SIP:

In reviewing SIPs, EPA is governed by the criteria in

Section 110(a)(2) of the Clean Air Act, which require

measures for the attainment and maintenance of the

primary and secondary NAAQS. In order for EPA to prop-

erly approve a State rule as part of the SIP, the rule must

have a significant relationship to attainment and mainte-

nance of a NAAQ.

[p. A-78, infra|. Moreover, EPA also acknowledged in its Final

Rule that its action in deleting the odor regulations from the

Pennsylvania SIP was merely corrective action since EPA had

never found the requisite relationship between odors and any

NAAQs:

EPA is merely taking corrective action here to remedy an

oversight in inadvertently approving the odor regulations.

The Agency has never found any significant relationship

between the control of odors and any NAAQS.

[p. A-82, infra].

Without addressing the question of whether admin-

istrative actions that exceed the statutory mandate, i.e., nul-

lities, could provide the basis for federal subject matter juris-

diction, the Third Circuit held that since the deletion of the

odor regulations was procedurally defective, said regulations

remained a part of the SIP. And, thus the “Citizens complaint

alleged a cognizable federal claim under the Pennsylvania

SIP” [p. A-7, infra}.

2. The deletion of the odor regulations was held procedurally defective

16

In marked contrast, is the Seventh Circuit's decision in

Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145

(7th Cir. 1983), where the plaintiffs sought to enforce provi-

sions of the Indiana SIP which had been declared invalid by a

state court, but not administratively repealed. The Sierra Club

court held the invalid portions of the SIP to be unenforceable,

stating:

The proceeding before the Indiana courts was not a revi-

sion or modification of a plan. Modification or revision of

a [SIP] plan assumes the existence of a valid plan in the

first place. The Indiana Court ruled that a valid plan

never existed, for there were procedural defects which

invalidated the plan at its inception.

Id. at 1151. “‘It would be an anomaly, if not a denial of the

defendant's due process rights to allow . . . full enforcement of

those invalid regulations’” Sierra Club, 716 F.2d 1151, quoting

People v. Celotex Corp., 516 F. Supp. 716 (C.D. Ill. 1981).

Thus, the decision to grant the requested writ would

resolve a conflict among the circuits with respect to whether

private citizens may enforce in federal court, SIP provisions

that are nullities that have not been administratively ap-

pealed.

Moreover, a grant of a writ of certiorari would clarify the

respective roles of EPA and private citizens in the enforce-

ment of the Clean Air Act. The decision below produces a

quixotic anomaly: private citizens are granted more authority

to enforce air pollution control laws under the federal Clean

Air Act than the administrative agency charged with that

responsibility by Congress may enforce merely because of a

mistake of the regulatory agency itself.’

in Concerned Citizens of Bridesbura v. United States Environmental Protec-

tion Agency, 836 F.2d 777 (3d Cir. 1987), which opinion is reproduced in its

entirety in the appendix hereto at p. A-96, infra. The Third Circuit had

reached this conclusion by characterizing the deletion as a revision to the

SIP, necessitating a public hearing, rather than a correction of a mistake

that was within EPA’s inherent power. See, e.g., American Trucking Assoc. v.

Frisco, 358 U.S. 133 (1953); and Dixon v. United States, 381 U.S. 68 (1965).

3. It is a well-established principle of statutory construction that a stat-

ute should not be construed in a manner which leads to absurd results.

United States v. Turkette, 452 U.S. 576 (1981).

17

II. The Decision Below Violates The Basic Principle

That Federal Courts Are Courts Of Limited Juris-

diction?

“It is a fundamental precept that federal courts are courts

of limited jurisdiction. The limits upon federal jurisdiction,

whether imposed by the Constitution or Congress, must be

neither disregarded nor evaded.” Owen Equipment & Erection

Co. v. Kroger, 437 U.S. 365, 374-375 (1978).

An inadvertent administrative act, which has been, since

at least as early as 1981, acknowledged to be in conflict with

the statutory mandate, cannot enlarge the District Court's

subject matter jurisdiction. An agency of the Executive

Branch cannot use its delegated authority to confer or alter

the jurisdiction of the federal courts:

A grant of rulemaking power is not authority to create

federal jurisdiction. That authority lies solely with Con-

gress.

Marshali v. Gibson’s Products, Inc., 584 F.2d 668, 677 (5th Cir.

1978) (footnote omitted); accord, Columbia Manufacturing

Corp. V. National Labor Relations Board, 715 F.2d 1409, (9th

4. The Third Circuit has characterized petitioners’ appeal of the ques-

tion of subject matter jurisdiction as a collateral attack. {p. A-7 infra}. How-

ever, as this Court has construed contempt proceedings not to be an inde-

pendent cause of action but part of the underlying action, Leman v. Krenter-

Arnold Hinge Last Co., 284 U.S. 448 (1931), any defense thereto or motions

made therein are direct attacks. Secondly, for at least one hundred years,

this Court has held that federal courts lacking jurisdiction to issue the un-

derlying order also lack the ability to enforce that order by means of the

contempt powers. Ex parte Ayers, 123 U.S. 445 (1887); In re Sawyer 124

U.S. 200 (1888); and United States v. United Mine Workers of America, 330

U.S. 258 (1947). Thirdly, at the commencement of the contempt hearing,

petitioners made a F.R.Civ.P.60(b)(4) motion to dismiss the underlying

complaint. An FR.Civ.P.60(b)(4) motion represents a direct attack on a void

judgment, Watts v. Pickney, 735 F.2d 406 (9th Cir. 1985). Fourthly, the

January 28, 1987 Order, from which an appeal was taken, expressly con-

tinues provisions of the prior injunction issued on July 26, 1986. [p. A-23,

infra|. The attack on the district court's subject matter jurisdiction was di-

rect. Regardless, it is well-settled that subject matter jurisdiction is never

waived. See, e.g., Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111

U.S. 379 (1884).

18

Cir. 1983) (“The authority to make rules of procedure relating

to the exercise of jurisdiction is not an authority to enlarge

that jurisdiction).

A. Congress by Implication Has Negated Pendent

Jurisdiction For Odor Regulations

Moreover, this fundamental precept of limited jurisdic-

tion further circumscribes a District Court's power to exercise

its pendent jurisdiction, particularly in circumstances where

Congress has expressly or by implication negated such exer-

cise. Aldinger v. Howard, 427 U.S. 1 (1976).

In Aldinger, Chief Justice Rehnquist, writing for the

Court, declared that the power to exercise pendent jurisdic-

tion turns initially upon construction of the jurisdictional

statute in question:

But the question whether jurisdiction over the instant

lawsuit extends not only to a related state-law claim, but

to the defendant against whom that claim is made, turns

initially, not on the general contours of the language in

Art III, i.e., “Cases ... arising under,” but upon the de-

ductions which may be drawn from congressional stat-

utes as to whether Congress wanted to grant this sort of

jurisdiction to federal courts.

Id. at 427 U.S. 16-17. “Before it can be concluded that ...

[pendent] jurisdiction exists, a federal court must satisfy it-

self not only that Art. III, permits it, but that Congress in the

statutes conferring jurisdiction has not expressly or by im-

plication negated its existence.” Id. at 427 U.S. 18.

Congress in Section 110(a) of the Clean Air Act, 42

U.S.C. § 7410(a), has expressly limited enforcement of state

and local air pollution control measures under the federal

Clean Air Act to those measures which significantly affect the

attainment and maintenance of national ambient air quality

standards. In so doing, Congress has negated, at least by

implication, the federal court’s authority to exercise pendent

jurisdiction over those state and local air pollution control

measures which lack this nexus to the national ambient air

quality standards. Thus, by implication, Congress has ne-

19

gated the District Court's exercise of pendent jurisdiction over

the odor regulations included in the Pennsylvania SIP.

Utilizing this precept of limited federal jurisdiction, the

United States Court of Appeals for the Second Circuit in

United States v. North Hempstead, 610 F.2d 1025 (2d Cir.

1979), sua sponte, examined the power of a trial court, which

did possess federal subject matter jurisdiction over a claim

under the Clean Air Act premised on other grounds, to exer-

cise pendent jurisdiction over a state claim based on odors

emitting from a municipal landfill. The Court concluded that

subject-matter jurisdiction was lacking:

No amount of talk can confer subject matter jurisdiction

upon a federal court. Nor can subject matter jurisdiction

arise frorn the circumstance that the exercise of such

judicial power is desirable or expedient. And this is espe-

cially true where the case involves, as here, federal and

state courts and administrative agencies with separate

and clearly defined powers. The reason for this is that the

case must relate to a “case or controversy” as provided in

the Judicial Article of the Constitution and, as the Dis-

trict Courts are “inferior” courts, the “case or contro-

versy” must be one over which the particular court is

given by Act of Congress over the subject matter.

Id., 610 F.2d at 1025. In enacting the Clean Air Act, Congress

conferred upon district courts the limited jurisdiction to en-

force state and local air pollution measures that maintain or

attain NAAQS but not the jurisdiction to enforce all other

state and local odor regulations. Indeed, said pendent juris-

diction has been impliedly negated.

This apparent conflict between the Second and Third

Circuits concerning whether the Clean Air Act vests district

courts with the power to exercise pendent jurisdiction over

claims arising under state odor regulations should be resolved

by the issuance of a Writ of Certiorari.

B. As There Was No Substantial Federal Claim,

The District Court Was Without Power Or Dis-

cretion To Exercise Pendent Jurisdiction

Likewise, the District Court was without power to exer-

20

cise pendent jurisdiction because there existed no substantial

federal claim to which a state claim could be appended:

Pendent jurisdiction, in the sense of judicial power, exists

whenever there is a claim “arising under [the] Constitu-

tion, the Laws of the United States, and Treaties made, or

which shall be made, under their Authority ...” U.S.

Const., Art. III § 2 and the relationship between that

claim and the state claim permits the conclusion that the

entire action before the court comprises but one constitu-

tional “case” The federal claim must have substance

sufficient to confer subject matter jurisdiction on the

court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103,

53 S.Ct. 549, 77 L.Ed. 1062. The state and federal claims

must derive from a common nucleus of operative fact.

But if, considered without regard to their federal or state

character, a plaintiff's claims are such that he would

ordinarily be expected to try them all in one judicial

proceeding, then, assuming substantiality of the federal

issues, there is power in federal courts to hear the whole.

United Mine Workers of America v. Gibbs, 383 U.S. 715, 725

(1966) (emphasis in the original). Whether a claim is suffi-

ciently substantial to confer the District Court with the power

to exercise pendent jurisdiction depends on whether the

court finds it to be so insubstantial or frivolous as to warrant

dismissal for want of subject matter jurisdiction under

FER.Civ. 12(b)(1) (See, e.g., Bell v. Hood, 327 U.S. 678, 683

(1946)) or as to warrant dismissal under F.R.Civ.P. 12(b)(6) or

disposal under F.R.Civ.P. 56. See, e.g., Lechtner v. Brownyard,

679 F.2d 322, 327-328 (3d Cir. 1982).

As stated above, the inclusion of odor regulations in the

Pennsylvania SIP were beyond EPA's delegated authority and,

as such, constituted a nullity. A nullity cannot serve as a basis

for either a substantial federal claim or federal subject matter

jurisdiction. Thus, as a matter of law, the trial court was

without judicial power to exercise pendent jurisdiction.

Moreover, the guidelines set forth by this Court in United

Mine Workers v. Gibbs, supra also demonstrate that even

_ SS

21

if the District Court had the power to exercise pendent juris-

diction, it was an abuse of discretion to do so. Speaking for a

unanimous Court, Justice Brennan announced that “if the

federal claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims should

be dismissed as well.” Id. at 383 U.S. 726. In the case now

under consideration, the District Court, prior to the com-

mencement of trial, acknowledged belief that relief could not

be afforded under the federal Clean Air Act. [Tr. May 1, 1986

at p. 1-22]. The trial commenced, presumably, under re-

spondents’ eleventh-hour assertion of a claim under the

Pennsylvania Air Pollution Control Act.

Even if the state statutory claim had been viable, the

directives set forth in United Mine Workers v. Gibbs, supra,

would still mitigate against the exercise of pendent jurisdic-

tion as state issues substantially predominated over federal

issues:

Similarly, if it appears that the state issues substantially

predominate, whether in terms of proof, of the scope of

the issues raised, or of the comprehensiveness of the

remedy sought, the state claims may be dismissed with-

out prejudice and left for resolution to state tribunals.

Id. at 383 U.S. 726-727.

{II. The Trial Court’s Sua Sponte Assertion Of Pendent

Jurisdiction Two And One-Half Months After The

Merits Trial Violates Not Only The Doctrines Of

Judicial Self-Restraint And Pendent Jurisdiction

But Also The Due Process Clause

Pendent jurisdiction, unlike subject matter jurisdiction

cannot be raised at any stage of the litigation. Mayor of Phila-

delphia v. Educational Equality League, 415 U.S. 605, 627

(1974). Indeed, “in determining whether jurisdiction over a

nonfederal claim exists, the context in which the nonfederal

claim is asserted is crucial.” Owen Equipment & Erection Co.

v. Kroger, 437 U.S. 365, 375-376 (1978).

In the matter sub judice, the District Court in its July 26,

22

1986 decision on the merits, rendered more than two and

one-half months after the trial, of its own volition, rewrote

respondents’ one-count complaint to include a common law

nuisance count. The judicial redrafting occurred despite the

District Court's characterization of this lawsuit just two weeks

prior to the commencement of trial:

Plaintiffs brought this suit on January 3, 1985, un-

der 42 U.S.C. Section 7604 to enforce the provisions of

the Clean Air Act, 42 U.S.C. Sections 7401-7626, against

the defendants for their operation of the Northeast Water

Pollution Contro! Plant (N/E WPCP), a sewage treatment

plant. The plaintiffs alleged in their amended complaint

[of April 11, 1985] that the defendants’ operation of the

N/E WPCP released noxious odors in the surrounding

community in violation of nine sections of the Pennsylva-

nia Air Management Code and its accompanying regula-

tions which constitute part of Pennsylvania's State Imple-

mentation Plan (SIP) of the Ciean Air Act that was

approved by the Administrator of the United States En-

vironmental Protection Agency and promulgated under

40 CFR 50.2020 et seg., as required by 42 U.S.C. Section

7401.

[April 22, 1986 Opinion of the District Court at p. 1], and

despite the District Court's acknowledgment at the com-

mencement of the trial that “[ijt's true that in the so-called

jurisdictional allegation [of the complaint] there is no claim

for pendent State causes of action” |Tr. May 5, 1986 at p. 1-22].

Thus, this post-trial redrafting of the complaint by the District

Court afforded petitioners no opportunity to defend them-

selves under this state law claim.

The Fifth Circuit, in contrast to the Third Circuit, has

admonished such judicial conduct:

The concept that a federal trial court may of its own

volition, after trial, consider state law claims not pleaded

by the plaintiffs does not appear constant with either

doctrine [i.e., the exercise of pendent jurisdiction and the

23

exercise of judicial self-restraint]. Not only does the court

thus reshape the plaintiffs’ suit, but it does so after trial

when there is no opportunity to fashion proof or presen-

tation directly to the state law issues.

Ruiz v. Estelle, 679 F.2d 1115, 1158 (5th Cir. 1982) opinion

amended in part, 688 F.2d 266 (5th Cir. 1982), cert. denied,

460 U.S. 1042 (1983). As counsel for respondents admitted at

oral argument before the Third Circuit, petitioners did not

have notice of any state law claims. This represents a violation

of the petitioners’ fundamental right to “notice” and “fairness”

that is guaranteed by the Due Process Clause of the Fifth

Amendment.

IV. The Imposition Of Fines To Compensate Re-

spondents For Violations Of State And Local Reg-

ulations Contravenes State Law And Flagrantly Ig-

nores The Erie Doctrine

Eric v. Tompkins, 304 U.S. 64 (1938) and its progeny

have established that the source of the right sought to be

vindicated—not the basis of subject matter jurisdiction—de-

termines whether the state or federal law applies. See e.g., Van

Gemert v. Boeing Co., 553 F.2d 812 (2d Cir. 1977).

In the matter now before the Court, compensatory

damages have been assessed against the petitioners without

regard for the governmental immunity conferred upon them

by the General Assembly of the Commonwealth of Pennsylva-

nia in the Pennsylvania Political Subdivision Tort Claims Act,

42 Pa. C.S. § 8541, et seq. The January 28, 1987 Order re-

quires “the City of Philadelphia shall pay a coercive penalty of

$10,000.00 to be held for the benefit of persons injured or

harmed by any violation of the injunction, the distribution of

such sums to be subject to further order of this court, to be

determined by such further proceedings as may be required.”

[p. A21-22, infra]. Moreover, in its memorandum opinion

which accompanied the said order, the District Court stated

that these penalties would “be placed in a special fund to

24

compensate the named plaintiffs for the injury caused.”

|p. A-19, infra}. However, the Pennsylvania General Assembly

has granted political subdivisions of the Commonwealth,

such as the City of Philadelphia, immunity from the assess-

ment of such compensatory damages. In 1976, the Pennsylva-

nia Political Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541

et seq. (“Tort Claims Act”)® was enacted by the General As-

sembly as a direct response to the judicial abrogation of the

doctrine of governmental immunity in Ayala v. Philadelphia

Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973)

Carroll v. York, 496 Pa. 363, 437 A.2d 394 (1981). “Pennsylva-

nia, by passage of the Tort Claims Act, has generally retained

sovereign immunity for its political subdivisions. This munic-

ipal immunity is waived for only eight types of negligence

conduct.” Buskirk v. Seiple, 560 F Supp. 247, 252 (E.D. 1983).

Specifically, Section 8541 of the Tort Claims Act provides:

Except as otherwise provided in this subchapter, no local

agency shall be liable for any damages on account of any

injury to a person or property caused by an act of the local

agency or an employee thereof or any other person.

Those eight areas of government conduct which are ex-

cepted from the general grant of immunity are: (1) vehicle

liability, (2) care, custody or control of personal property, (3)

real property, (4) trees, traffic controls and street lighting, (5)

utility service facilities, (6) streets, (7) sidewalks, and (8)

care, custody or control of animals. Id. § 8542(b). “Claims

which are not governed in one of these specific areas of

liability are barred by the retention of governmental immu-

5. In disregard of Due Process considerations of the Fifth Amendment

to the United States Constitution, the compensatory penalties assessed

against the City of Philadelphia were made without any showing of actual

harm: Indeed, the District Court found that “there has been no showing, by

way of affidavits or other competent evidence, of any actual monetary loss or

damages suffered by the plaintiffs due to the continuing violations” |p

A-20, infra)

6. A copy of the Tort Claims Act in its entirety is included in the appen-

dix hereto at pp. A-88, infra

|

25

nity. Lopuszanski v. Fabey, 560 F. Supp. 3, 5-6 (E.D. Pa

1982)

The conduct complained of by respondents does not fall

within the scope of the Tort Claims Act for three reasons

First, respondents could not recover damages under either

the Pennsylvania Air Pollution Control Act, 35 PS. § 4001 et

seq., or the Philadelphia Air Management Code. Second, the

Commonwealth of Pennsylvania has limited petitioners lia-

bility for damages to those injuries caused by negligent acts

Third, the governmental conduct complained of does not fall

into one of the eight narrow exceptions to immunity. Thus,

under Pennsylvania Law, respondenis cannot be compen-

sated for any injuries they may have sustained because of

violations of state and local odor regulations

Under Erie and its progeny, the District Court must

abide by Pennsylvania Tort Claims Act where the rights

sought to be vindicated arise under state law

26

CONCLUSION

For the reasons set forth above, Petitioners respectfully

pray for a Writ of Certiorari to issue to the United States Court

of Appeals for the Third Circuit to review the opinion and

decision of that court

Respectfully submitted

SEYMOUR KURLAND, CITY SOLICITOR

\ Member of the Bar of this Court

DENISE D. COLLIERS

PATRICK K. O'NEILL

City of Philadelphia Law Department

1540 Municipal Services Building

1500 J.F. Kennedy Boulevard

Philadelphia, PA 19102-1692

215) 686-5233

Counsel for Petitioners