Stanley Frompovicz, Jr. v. Dawn Hissner ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 20-1364
__________
STANLEY F. FROMPOVICZ, JR.,
Appellant
v.
DAVID HISSNER; LISA DANIELS; DAWN HISSNER; LYNNE SHEETZ; ROD
NESMITH; JEFFREY ALGYER; DAVID MITTNER; PETER MANGAK; TODD
OSTIR; BRIAN YAGIELLO; BRIAN BUSHER; JASON MINNICH;
JOSHUA KRAMMES; PADEP DOES 1-10; LYDIA JOHNSON; GARY LANDIAK;
JUDITH MILLER, PADOA DOES 1-10; CHAD A. REISCH
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court Civil No. 5-17-cv-02790)
District Judge: Honorable Joseph F. Leeson, Jr.
Submitted Under Third Circuit L.A.R. 34.1(a)
October 23, 2020
BEFORE: CHAGARES, GREENAWAY, JR., and NYGAARD, Circuit Judges
(Filed: January 21, 2021)
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OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
NYGAARD, Circuit Judge.
Stanley Frompovicz, Jr. sold water from his property, subject generally to the
provisions of the Pennsylvania Safe Drinking Water Act (35 Pa. Cons. Stat. §§ 721.1-
721.17) and the specific monitoring requirements in the regulations, 25 Pa Code §§
109.1001-109.1009. In June 2015, water from his “Far Away Auburn” property tested
positive for E. coli and coliform. Frompovicz’s response to this problem did not comply
with the regulations and so the Commonwealth’s Department of Environmental
Protection issued a Field Order on June 18, 2015.1 Frompovicz alleges that DEP’s
subsequent actions, and the conduct of a host of Commonwealth employees,2 infringed
his rights to substantive due process; violated procedural due process, equal protection,
and the Takings Clause; and constituted retaliation and conspiracy under 42 U.S.C. §
1983. Frompovicz appeals the District Court’s denial of his motion for partial summary
judgment and its grant of summary judgment in favor of Appellees, arguing the analysis
ignored his arguments and parts of the record. We will affirm.3
Presuming that Frompovicz’s use of a state-issued permit to sell water from his
property is the fundamental constitutionally protected interest at stake, the cross motions
for summary judgment on the claim of a substantive due process violation turn on the
1
The District Court dismissed any claims that were based on conduct by Appellees
alleged to have occurred prior to June 19, 2015. See Frompovicz v. Pa. Dep’t of Env’t
Prot., 2018 WL 4145039, at *3 (E.D.Pa. 2018).
2
David Hissner, Lisa Daniels, Dawn Hissner, Lynne Scheetz, Rod Nesmith, Jeffrey
Algyer, David Mittner, Peter Mangak, Todd Ostir, Brian Yagiello, Brian Busher, Jason
Minnich, Joshua Krammes, Chad A. Resich, John Does #1-10 of DEP, Lydia Johnson,
Gary Landiak, Judith Miller, and Department of Agriculture John Does #1 -10.
3
We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary.
2
existence or absence of evidence that Appellees deprived him of this protected interest in
a manner that shocks the conscience. See Chainey v. Street, 523 F.3d 200, 219 (3d Cir.
2008). Although it is always fact-specific, deprivation that shocks the conscience refers
to ‘“only the most egregious official conduct,’” an abuse of authority such as “corruption,
self-dealing, [or] bias against an ethnic group.” Id. at 219-20 (quoting United Artists
Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 400 (3d Cir. 2003)).
The Commonwealth’s Field Order addressed, in part, Frompovicz’s “failure to
re[s]pond to an acute violation/situation,” (J.A. 263) specifying that Frompovicz must
“immediately cease hauling water from Spring 001 ” (the site with the contaminated
water) and that he “continue to refrain from hauling water from Spring 001 for any
human consumptive purposes” until he received confirmation from DEP that shipments
of water may resume. J.A. 264-65. There is no factual dispute that multiple samples
tested positive for E. coli and that DEP is requiring Frompovicz to take particular action
(i.e. ensuring water drawn from this site undergoes treatment equivalent to 4-Log
inactivation, or developing a Surface Water Inspection Protocol) to obtain the needed
confirmation to resume operations. He has not complied.
The focal point of his claim is DEP’s refusal to give confirmation to allow
operations to resume. Frompovicz prevaricates on the need for him to do anything
further. He also makes a variety of unsubstantiated statements in his brief to explain why
such remediation has not occurred, ranging from delegation (asserting DEP ignored his
customer’s 4-Log capabilities—a claim refuted by evidence) to dubiety (alleging
confusion because of poor guidance and communication from DEP on necessary next
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steps). But even if he had raised something specific that approached egregious
misconduct by Appellees, bald assertions are insufficient to support his motion, or
survive Appellees’ motion at summary judgment. Our review of the record before the
District Court did not identify any material evidence of anything close to conscience-
shocking conduct in Appellees’ dealings with him, particularly in light of the public
health issue at stake. For this reason, we conclude that the District Court did not err by
denying Frompovicz’s motion for partial summary judgment and granting summary
judgment in favor of Appellees.
Frompovicz’s procedural due process claim fairs no better. The Field Order given
to Frompovicz on June 18, 2015 contained a plainly visible notice of his right to appeal
“within 30 days of receipt of written notice of this action.” J.A. 265. He did not appeal.
In his brief to this Court Frompovicz asserts without evidence that he was compliant with
DEP’s requirements and claims without evidence that Appellees misled him about his
need to appeal. None of this impairs the validity of the notice he received, nor the
process he failed to engage. The notice and his failure to respond to it are fatal to his
procedural due process claim. As a result, the District Court properly granted summary
judgment in favor of Appellees.
Without a viable due process claim, Frompovicz lacks any basis for asserting a
conspiracy to deny him due process. Unsupported averments in his appellate brief that
DEP conspired with competitors to harm him do nothing to save this claim. The District
Court did not err by granting Appellees’ summary judgment on the conspiracy claim.
4
The Takings Clause cause of action is predicated on Frompovicz’s contention that
DEP’s imposition and enforcement of the Field Order deprives him of economic benefit
from the use of his property. As noted above, the order prohibits hauling water from the
Far Away Auburn site until DEP confirms that “usage may resume.” J.A. 265. DEP’s
confirmation hinges on him addressing the contamination problem with proper corrective
action. The District Court rightly concluded that Appellees’ withholding of the necessary
confirmation is consistent with the Commonwealth’s police power under the SDWA.
Appellees acted to curtail a noxious use of the property to protect public health. See
Nat’l Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 63 (3d Cir. 2013). And
further, it correctly observed that Frompovicz has a pathway to resume operations at Far
Away Auburn by satisfying DEP’s requirements to resolve this public health problem.
This is not a permanent condition. All of this vitiates any regulatory taking claim. The
District Court did not err by denying Frompovicz’s motion for partial summary judgment
and granting summary judgment in favor of Appellees.
Woven throughout all of Frompovicz’s claims is an allegation that Appellees
treated competitors more favorably. An equal protection class-of-one claim requires
evidence that Appellees intentionally treated a similarly situated party different from
Frompovicz, and that this disparate treatment lacked a rational basis. “Similarly situated”
means “alike ‘in all relevant aspects.’” Startzell v. City of Philadelphia, Pa, 533 F.3d
183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).
Frompovicz makes numerous unsupported averments in his brief about his competitors
that appear to stretch far into the past. But after reviewing the entire record for facts that
5
could support this claim,4 we did not identify any evidence to reasonably infer that
Appellees treated a similarly situated party—i.e., a competitor who failed to take required
responsive action after samples from one site test positive for E. coli—in a materially
different way. Moreover, in general, Frompovicz does not raise any evidence to
reasonably infer that Appellees acted arbitrarily towards him. The District Court did not
err.
As for retaliation, we could not identify any evidence showing that Frompovicz
engaged in relevant “constitutionally protected conduct” from which retaliation by
Appellees could be claimed. Conard v. Pa. State Police, 902 F.3d 178, 183 (3d Cir.
2018). Because of this we conclude the District Court did not err by granting summary
judgment here.
Finally, to the extent that Frompovicz appeals the District Court’s summary
judgment on claims against Appellees in their individual and official capacities, we
already have concluded that the record does not provide evidence of any constitutional
injury. Without it these claims properly failed.
For all of these reasons, we will affirm the order of the District Court.
4
See supra note 1.
6