Opposition Brief — Gallenthin Realty Development Development Development, Inc. v. BP Products of North America, Inc. (No. 05-1404)

(2) FILED

JUN 5 - 2006

No. 05-1404

THE CLERK |

IN THE

Supreme Coat of the United States

GALLENTHIN REALTY DEVELOPMENT, INC.;

Georoe A. GALLENTHIN, II, LTC, HusBanp;

CyntTuia L. GALLENTHIN, Wire,

Petitioners,

v.

BP Propucts OF NorTH AMERICA, INC., D/B/A BP Om Company;

Essex CHEMICAL CorPoRATiION; Dow CHEMICAL COMPANY; COMMERCE

BanK/HARRISBURG NATIONAL ASSOCIATION, D/B/A COMMERCE BANK,

N.A.; TriaD Apvisory Services, INC., D/B/A TRIAD ASSOCIATES, INC.;

URS Corporation; PARKER McCay & Criscuoio, P.A.; GLOUCESTER

CounTY IMPROVEMENT AUTHORITY; BOROUGH OF PAULSBORO

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

Unrrep States Court OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OrpposiTiON FOR RESPONDENTS

BP Propucts oF NorTH AMERICA, INC., EssEX CHEMICAL

CORPORATION, AND Dow CHEMICAL COMPANY

ALEXANDER KERR

McCarter & EnauisH, LLP

Counsel for Respondent

BP Products of North America, Inc.

Mellon Bank Center, Suite 700

1735 Market Street

Philadelphia, PA 19103-7501

(215) 979-3800

(Additional Counsel Listed on Signature Page)

201553 é

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

I. Whether Petitioners’ claim of maritime fraud is

nothing more than a claim of common law fraud, and hence

beyond the scope of federal subject matter jurisdiction.

II. Whether the River and Harbor Improvement Act,

33 U.S.C. § 540, contains an implied private right of action,

when there has been no showing by Petitioners that they are

part of the class for whose special benefit the statute was

enacted.

III]. Whether the dormant Commerce Clause provides a

basis for the exercise of federal jurisdiction where the facts

alleged implicate only a private individual’s challenge to a

municipality’s exercise of its power to enact local land use

laws and does not burden or affect interstate commerce.

ii

CORPORATE DISCLOSURE STATEMENT

BP Company of North America, Inc. and The Standard

Oil Company are the parent companies of Respondent BP

Products North America, Inc. BP P.L.C. is the only publicly

held company that owns 10% or more of the Respondent BP

Products North America, Inc.’s stock.

The Dow Chemical Company (“Dow”) is a publicly held

corporation and the parent corporation of Essex Chemical

Corporation (“Essex”) and Dow owns all of the stock of

Essex. No corporation owns 10% or more of Dow’s stock.

Dow does not have a parent corporation.

ili

TABLE OF CONTENTS

Page

SIO PUI oo once has be keen ete nae i

Corporate Disclosure Statement ................ li

a UE RI ie Ns 5s ek as es iil

Saas OF Cee AMUMMNS wn cs wees aedesacs Vv

RN NE is i ks one 5 RAS RO eee 1

DUMCNON OF FUTIAGICUION . on ecb i cee ekaie 2

Constitutional And Statutory Provisions ......... 2

eG ie ee ere eee tT eee 3

A. Jurisdiction of the Courts Below ......... 3

Be | tree ee Kae s

Reasons for Denying the Petition ............... 4

A. Neither in the Questions Presented in the

Petition Nor in the Court Below did the

Petitioners’ Contest the District Court’s

Dismissal of the Complaint Under the

Doctrine of Abstention, Which Failure Acts

ee ee co a ee 4

iv

Contents

Page

B. Petitioners’ Complaint Fails to Allege and the

Facts and Arguments Before the Lower Court

do not Support Petitioners’ New Claim of

Maritime Fraud Against Respondents ...... 6

C. The Court Below Fully Considered and

Correctly Decided that No Private Right of

Action Exists Under the River and Harbor

Improvements Act, 33 U.S.C. § 540 ....... 8

D. The Lower Court’s Decision That the

Dormant Commerce Clause Does Not Give

Rise to Federal Subject Matter Jurisdiction

Over Petitioners’ Claims Follows Supreme

Cte FE oh 55 Se os a FR 10

eS NI ee te lle REN phaser Doc Pat EDEN Ys Tol Maa 11

Vv

TABLE OF CITED AUTHORITIES

Cases:

Adickes v. Kress & Co., 398 U.S. 144, 90S. Ct. 1598,

Sh ag Ms ETO on kook ap veka d ee ces

Boatowners and Tenants Assoc., Inc. v. Port of

Seattle, 716 F.2d 669 (9th Cir. 1983) ..........

California v. Sierra Club, 451 U.S. 287, 101 S. Ct.

Pe Fig tee hs Ws BO AOE CADOR). svc cnc est vanes

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S.

383, 114 S. Ct. 1677, 128 L. Ed. 2d 399 (1994)

> 2 ee & 26-2. 8S eit.» 28'S: 8 6, 26, O86. 8.0.3.8 2D SR OS PD OORT SD

Delta Airlines v. August, 450 U.S. 346, 101 S. Ct.

po 7 Gm eb gee) |S eee

Executive Jet Aviation, Inc. v. City of Cleveland,

Ohio, 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d

METERS SAGA CLL Crh aks sane hase ek ke

Foremost Insurance Co. v. Richardson, 457 U.S. 668,

102 S. Ct. 2654, 73 L. Ed. 2d 300 (1982) ......

Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

513 U.S. 527, 115 S. Ct. 1043, 130 L. Ed. 2d 1024

SIGE AMAR LEST SR Apae tana se rere e Ser ara oe Ree

Page

vi

Cited Authorities

Gwynedd Properties, Inc. v. Lower Gwynedd

Township, 970 F.2d 1195 (3d Cir. 1992) .......

Harvey & Harvey, Inc. v. City of Chester, 68 F.3d

(: 3¢ 12 Be, PPE TESTE TE Tyee er

Lewis v. B.T. Investment Managers, Inc., 447 U.S.

27, 100 S. Ct. 2009, 64 L. Ed. 2d 702 (1980) ...

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58,

107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987) .......

Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806,

Oe Ea, Bs On EE LE OEE Misi ene swath eenwenks

Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690,

Ce en ee, Pe OL, hiv cee shew dee wae

Pennsylvania Department of Corrections v. Yeskey,

524 U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215

‘beets See rey eee ee re ree Pe

Sisson v. Ruby, 497 U.S. 358, 110 S. Ct. 2892,

EES 1 See Be Be ae a eh ew tks

United States v. United Foods, Inc., 533 U.S. 405,

121 S. Ct. 2334, 150 L. Ed. 2d 438 (2001) .....

Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746,

gi ey” Gee Lh fy t Sy errr ee a

vil

Cited Authorities

Page

Constitutional and Statutory Provisions:

U.S. Committotion. Amt: (9 6, CIS occa ees ya

Be Se: SRR rary rear eee ao

GE 4-0 ives 4 aoe bao eda Khao 2, 3,6

res Es hae hk os er Se A a i, 3,8

Rule:

We ei. 1

1

Respondents BP Products North America, Inc., Essex

Chemical Corporation, and Dow Chemical Company

(collectively “Respondents”) respectfully request that this Court

deny the Petition for Writ of Certiorari seeking review of the

Third Circuit’s opinion in this case. The opinion of the Third

Circuit may be found at 2006 U.S. App. LEXIS 1722.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Third Circuit (Pet. App. la-10a) is unreported and is not

precedential.

The Opinion of the United States District Court for the

Eastern District of Pennsylvania (Pet. App. | 1a-18a), which was

issued on February 18, 2005, following the District Court’s

February 14, 2005 Order granting Respondents’ motions to

dismiss and denying Petitioners’ motion to dismiss or in the

alternative leave to amend the complaint, explains in detail the

basis for its decision. The Order and Opinion of the District

Court are unreported.

Petitioners fail to state in their Petition for a Writ of

Certiorari all of the reasons upon which the District Court

granted the Respondents’ motions to dismiss and denied the

Petitioners’ motion to amend. In addition to dismissing the

Petitioners’ Complaint for lack of subject matter jurisdiction,

the District Court properly granted the Respondents’ motions

to dismiss, in the alternative, for lack of ripeness and pursuant

to the doctrine of abstention. Likewise, the District Court denied

the Petitioners’ motion to amend for lack of ripeness and under

the doctrine of abstention because, although “plaintiff's property

has been designated an ‘area in need of redevelopment,’ no

declaration of taking has been filed by the Borough [of

Paulsboro]. Until plaintiff's property is condemned, and the

condemnation approved by the New Jersey courts, it is unlikely

that a controversy exists.” (Pet. App. 17a).

2

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Third Circuit was entered on January 24, 2006.

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

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Constitution, Art. I, § 8, Cl.3 provides in relevant

part: “The Congress shall have Power ... [t]o regulate

Commerce ... , among the several States. . . .”

28 U.S.C. § 1291.

The courts of appeals (other than the United States

Court of Appeals for the Federal Circuit) shall

have jurisdiction of appeals from all final

decisions of the district courts of the United States,

the United States District Court for the District

of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, except

where a direct review may be had in the Supreme

Court. The jurisdiction of the United States Court

of Appeals for the Federal Circuit shall be limited

to the jurisdiction described in sections 1292(c)

and (d) and 1295 of this title.

28 U.S.C. § 1331. “The district courts shall have original

jurisdiction of all civil actions arising under the Constitutions,

laws, or treaties of the United States.”

33 U.S.C. § 540 et seq.

Federal investigations and improvements of

rivers, harbors, and other waterways shall be under

the jurisdiction of and shall be prosecuted by the

Department of the Army under the direction of

the Secretary of the Army and the supervision of

the Chief of Engineers, except as otherwise

specifically provided by Act of Congress, which

said investigations and improvements shall

include a due regard for wildlife conservation.

STATEMENT OF THE CASE

A. Jurisdiction of the Courts Below

The United States Court of Appeals for the Third Circuit

exercised its jurisdiction over this matter pursuant to

28 U.S.C. § 1291.

Petitioners misstate the jurisdiction of the United States

District Court for the Eastern District of Pennsylvania. The

District Court determined it lacked federal question

jurisdiction over the claims, notwithstanding the Petitioners’

invocation of 28 U.S.C. § 1331, the River and Harbor

Improvements Act, 33 U.S.C. § 540 et seqg., and the

Commerce Clause of the United States Constitution, Article

1, Section 8, Clause 3, as the bases for jurisdiction. The

District Court, in its Memorandum Opinion of February 18,

2005 (Pet. App. | 1a-18a), ruled that: (1) the River and Harbor

Improvements Act did not provide a private right of action

and, therefore, could not afford Petitioners’ a predicate for

jurisdiction, regardless of whether the alleged violations

occurred; and (2) the Commerce Clause did not offer a basis

4

for the exercise of federal question jurisdiction because

Petitioners failed to allege any facts that would suggest that the

Borough of Paulsboro’s designation of Petitioners’ property as

an area in need of redevelopment materially affected interstate

commerce. Rather, the facts, as alleged, constitute nothing more

than a private individual’s challenge to a municipality’s exercise

of its power to enact local land use laws. Further, the District

Court held that amendment of the Petitioners’ Complaint would

be futile because the Petitioners’ claims are not ripe and the

doctrine of abstention would prohibit the exercise of jurisdiction

by the District Court.

B. Facts

Respondents incorporate by reference herein the statement

of the facts set forth in the opinion of the United States Court of

Appeals for the Third Circuit.

REASONS FOR DENYING THE PETITION

A. Neither in the Questions Presented in the Petition Nor

in the Court Below did the Petitioners’ Contest the

District Court’s Dismissal of the Complaint Under the

Doctrine of Abstention, Which Failure Acts as a Waiver.

In dismissing the Complaint, the District Court relied,

as an independent and alternative basis for dismissal, on the

lack of ripeness of the Petitioners’ claims and on the doctrine

of abstention. Neither ripeness nor abstention were raised in

Petitioners’ appeal to the Third Circuit, and the Petitioners

failed to present any legal arguments on these issues in their

brief to the Third Circuit. Accordingly, Petitioners’ waived

their right to appeal these issues and the District Court’s

dismissal of the Complaint on these grounds.

5

Despite such waiver, and despite having failed to raise

it as a question presented in the Petition, Petitioners have

improperly inserted into their Petition an argument contesting

the District Court’s reliance on the doctrine of abstention as

a basis for the dismissal of the Complaint. Having waived in

the Appellate Court their right to contest the dismissal of the

Complaint for lack of ripeness and abstention, this Court

should not grant Petitioners certiorari to now contest the

District Court’s application of the doctrine of abstention.

Adickes v. Kress & Co., 398 U.S. 144, 147 n.2, 90 S. Ct.

1598, 26 L. Ed. 2d 142 (1970); Pennsylvania Department of

Corrections v. Yeskey, 524 U.S. 206, 212-13, 118 S. Ct. 1952,

141 L. Ed. 2d 215 (1998); Delta Airlines v. August, 450 U.S.

346, 362, 101 S. Ct. 1146, 67 L. Ed. 2d 287 (1981)(“question

presented in petition but not raised in court of appeals is not

properly before us”); United States v. United Foods,

Inc., 533 U.S. 405, 121 S. Ct. 2334, 150 L. Ed. 2d 438

(2001)(refusing to consider arguments by petitioner not

pressed below). Compare Nixon v. Fitzgerald, 457 U.S. 731,

743 n.23, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982) and

Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86

L. Ed. 2d 411 (1985) (both holding that “purely legal

questions” presented in a petition may be appropriate for

decision even though not addressed by the lower court).

Even if the Court were to consider the Petitioners’

argument against application of the doctrine of abstention as

a basis for dismissal of their Complaint, the Petition must

still be denied as the Petitioners’ argument lacks legal merit.

Petitioners’ rely, erroneously, on maritime law as the basis

for their argument that their federal action should take

precedence over their previously filed New Jersey state court

action. Missing from Petitioners’ argument, however, is any

indication of the maritime activity at issue. Rather, as

6

properly noted by both the Third Circuit and the District

Court, Petitioners’ claims concern, solely, a purported scheme

by the Respondents to deprive the Petitioners’ of their

property rights through the enactment of a local land use

ordinance. In this context, and relying on this Court's

previous decision in Younger v. Harris, 401 U.S. 37, 91 S.

Ct. 746, 27 L. Ed 2d 669 (1971) and on the Third Circuit’s

previous decision in Gwynedd Properties, Inc. v. Lower

Gwynedd Township, 970 F.2d 1195 (3d Cir. 1992), the District

Court held, correctly, that “. .. the legality of a local land

use ordinance entails special state interests” (Pet. App. 18a,

n.10) for which New Jersey law provides a mechanism to

condemnees “to challenge any aspect of a condemnation in

state court.” (Pet. App. 18a, n.10). Accordingly, federal

abstention is appropriate in this case where the Petitioners’

state court appeal challenging a local land use ordinance

remains pending.

B. Petitioners’ Complaint Fails to Allege and the Facts

and Arguments Before the Lower Court do not

Support Petitioners’ New Claim of Maritime Fraud

Against Respondents.

A plain reading of Count II of the Petitioners’ Complaint

and the arguments advanced by the Petitioners in the lower

court clearly evidence that the Petitioners’ fraud claim is

premised upon Pennsylvania common law, not maritime law.

Petitioners concede in their brief to the Appellate Court (p.

25) that Count II of their Complaint is an attempt to allege a

“claim for fraud under Pennsylvania law.” It is axiomatic

that a common law claim of fraud does not “arise under” the

Constitution or laws of the United States and therefore does

not give rise to federal jurisdiction. 28 U.S.C. § 1331;

7

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.

Ct. 1542, 95 L. Ed. 2d 55 (1987).!

Even assuming, arguendo, that the Petitioners pled a

claim of fraud under maritime law, the facts as alleged fail

to establish a prima facie case of fraud in the maritime context

so as to invoke federal subject matter jurisdiction. The

propriety of admiralty jurisdiction over particular torts, such

as fraud, depends on the tort’s locality and its relationship to

“traditional maritime activity.” Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527, 115 S. Ct. 1043, 130 L.

Ed. 2d 1024 (1995). A party seeking to invoke federal

admiralty jurisdiction over a tort claim must establish both

the tort’s locality on navigable water and a connection with

traditional maritime activity. Jd.; see also Executive Jet

Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 253-

258, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972); Foremost

Insurance Co. v. Richardson, 457 U.S. 668, 102 S. Ct. 2654,

73 L. Ed. 2d 300 (1982); Sisson v. Ruby, 497 U.S. 358, 110

S. Ct. 2892, 111 L. Ed. 2d 292 (1990). The locality test

requires a court to determine whether the alleged tort occurred

on navigable water or whether the injury suffered on land

was caused by a vessel on navigable water. Grubart, Inc.

513 USS. at 527, 534, 155 S. Ct. at 1045, 1048 (1995). Further,

in determining if a connection exists between the alleged

tort and traditional maritime activity, a court must first

determine whether the incident has “a potentially disruptive

impact on maritime commerce” and second whether the

activity which caused the incident has a connection with

“traditional maritime activity.” Jd. (quoting Sisson v. Ruby,

1. As aptly noted by the District Court, “[t]here is no basis for

diversity jurisdiction, inasmuch as all plaintiffs and some defendants

are citizens of Pennsylvania” (Pet. App. 14a, n. 6).

8

497 U.S. at 363, 364 n.2 and 365). Respondents’ alleged

fraudulent conduct in attempting to thwart Petitioners’

proposed redevelopment plan and thereby deprive Petitioners’

of their property rights fails to satisfy either the locality test

or the connection test. Rather, the conduct of Respondents

as alleged by Petitioners is entirely separate from any

maritime activities that may occur in the waters that boarder

the Petitioners’ property. Simply labeling a claim as

“maritime” does not make it so.

C. The Court Below Fully Considered and Correctly

Decided that No Private Right of Action Exists Under

the River and Harbor Improvements Act, 33 U.S.C.

§ 540.

The Appellate Court correctly decided that no express

or implied private right of action exists under the River and

Harbor Improvements Act (the “Act”) based upon the prior

well reasoned decisions of the Ninth Circuit and this Court.

First, relying on the Ninth Circuit’s decision in

Boatowners and Tenants Assoc., Inc. v. Port of Seattle, 716

F.2d 669 (9" Cir. 1983), the Appellate Court correctly

determined that the Act does not provide an express private

right of action to persons purportedly injured by violations

of its provisions, but rather grants to the Army Corps of

Engineers the authority “to conduct investigations and

improvement of rivers, harbors and waterways, to grant

easements on lands acquired by the United States for river

and harbor improvements, to approve the plans of private

persons or municipal corporations who desire to improve

navigable rivers. . . .” (Pet. App. 7a).

9

Second, relying again on the decision in Boatowners and

Tenants Assoc., Inc., supra and citing to this Court’s previous

decision in California v. Sierra Club, 451 U.S. 287, 101 S.

Ct. 1775, 68 L. Ed. 2d 101 (1981), the Appellate Court

determined that Petitioners

failed to establish that the Act impliedly creates a

private cause of action by demonstrating that they

are ‘one of the class for whose especial benefit

the statute was enacted,’ that Congress intended

to create a private right of action for individuals

in their class, or that their cause of action is not

one traditionally relegated to state law (and thus

inferring a cause of action based solely on federal

law).

(Pet. App. 8a). Notably, no conflict exists in either the Third

Circuit or among the Circuits on this issue.

Petitioners fail to provide the Court with a justifiable

basis upon which certiorari may be granted to consider the

Appellate Court’s well reasoned decision on this issue.

Instead, Petitioners’ misstate in their Petition the basis upon

which the Appellate Court reached its decision. Contrary to

the Petitioners’ argument, neither the Ninth Circuit’s opinion

in Boatowners and Tenants Assoc., Inc., supra nor the

Appellate Court’s analysis and ultimate determination in this

case are fact sensitive. Rather, both decisions turn on an

interpretation of the legislature’s intent gleaned from a review

of the language in the Act — a purely legal analysis.

10

D. The Lower Court’s Decision That the Dormant

Commerce Clause Does Not Give Rise to Federal

Subject Matter Jurisdiction Over Petitioners’ Claims

Follows Supreme Court Precedent.

Far from ignoring or misapplying the precedent of this

Court, as alleged in the Petition, the Appellate Court actually

relied upon and cited to the very Supreme Court precedent

which the Petitioners claim was ignored. Notably, the

quotations to which the Petitioners reference in the matters

of Lewis v. B.T. Investment Managers, Inc., 447 U.S. 27,

100 S. Ct. 2009, 64 L. Ed. 2d 702 (1980) and Harvey &

Harvey, Inc. v. City of Chester, 68 F.3d 788 (3d Cir. 1995)

were cited by the Appellate Court in its analysis of the

Petitioners’ Commerce Clause claim.

Specifically, in considering this Court’s recognition of

the limits on the power of the States to erect barriers against

interstate trade, as discussed in Lewis, supra, the Appellate

Court properly framed the issue as “whether the Borough’s

ordinance approving the designation of Plaintiffs’ property

as an ‘area in need of redevelopment’ violates the dormant

Commerce Clause.” (Pet. App. 9a). The Appellate Court

correctly analyzed this issue within the framework

established by this Court in C & A Carbone, Inc. v. Town of

Clarkstown, 511 U.S. 383, 114 S. Ct. 1677, 128 L. Ed. 2d

399 (1994) and its own prior decision in Harvey & Harvey,

Inc., supra In this regard, the Appellate Court recognized

that “while the purpose of the dormant Commerce Clause is

to prevent state and local governments [from using] their

regulatory power to favor local enterprise by prohibiting

patronage of out-of-state competitors or their facilities,”

C & A Carbone, Inc., 511 U.S. at 394, its purpose “is not to

protect individual firms. Harvey & Harvey, Inc., 68 F.3d at

798.

1]

Within this framework, the Appellate Court correctly

determined that the Petitioners’ failed to allege any facts

suggesting that the Borough of Paulsboro’s designation of their

property as an “area in need of redevelopment” unduly burdens

or materially affects interstate commerce such that the District

Court could properly exercise subject matter jurisdiction over

the Petitioners’ claims. The Petitioners again fail to allege in

their Petition any facts to suggest that the Borough’s decision

burdens or affects interstate commerce. At best, the Petition

merely quibbles with the lower court’s interpretation of the

Petitioners’ factual allegations, which is not a proper basis upon

which to grant certiorari. See Sup. Ct. R. 10.

CONCLUSION

For these reasons, the Petition for a Writ of Certiorari should

be denied.

Respectfully submitted,

PAMELA BERMAN ALEXANDER KERR

ADLER, POLLOCK & SHEEHAN Counsel of Record

175 Federal Street McCarter & ENGLIsH, LLP

12th Floor Mellon Bank Center

Boston, MA 02110-2890 Suite 700

(617) 482-0600 1735 Market Street

Philadelphia, PA 19103-7501

EDWARD J. WiLBRAHAM

(215) 979-3800

WILBRAHAM, LAWLER & BUBA

1818 Market Street Counsel for Respondent

Suite 3100 BP Products of North

Philadelphia, PA 19103 America, Inc.

(215) 564-4141

Counsel for Respondents

Essex Chemical Corporation

and Dow Chemical Company