1st Westco Corp. v. School Dist. of Philadelphia, 93-1127
| Decision Date | 27 October 1993 |
| Docket Number | No. 93-1127,93-1127 |
| Citation | 6 F.3d 108 |
| Parties | 86 Ed. Law Rep. 47 1ST WESTCO CORPORATION; Richard J. Lee; Troy Lyles; Carl Haines; Charles J. Fuller; Stanley Yakupchina; Todd Curtis; Roosevelt Whitehead v. The SCHOOL DISTRICT OF PHILADELPHIA, Third Party Plaintiff; Commonwealth of Pennsylvania v. Ernest D. PREATE, Jr., individually and in his official capacity as Attorney General of the Commonwealth of Pennsylvania; Donald M. Carroll, Jr., individually and in his official capacity as Secretary of Education of the Commonwealth of Pennsylvania, Third Party Defendants, Ernest D. Preate, Jr., and Donald M. Carroll, Jr., Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Ernest D. Preate, Jr., Atty. Gen., Susan J. Forney, Senior Deputy Atty. Gen. (argued), Calvin R. Koons, Senior Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Harrisburg, PA, for appellants.
Roy S. Cohen (argued), Alisa G. Field, William B. Jameson, Cohen & Huntington, P.C., Philadelphia, PA, for appellees.
Sally Akan, General Counsel, Jackie B. Sparkman, Asst. Gen. Counsel (argued), School District of Philadelphia, Office of Gen. Counsel, Philadelphia, PA, for the School Dist.
Before: SCIRICA, COWEN, and ROSENN, Circuit Judges.
This appeal has its genesis in an old Pennsylvania statute enacted during the Great Depression of the 1930's to preserve jobs for unemployed Pennsylvanians on public projects. In 1935, the Pennsylvania legislature adopted a provision requiring school districts to include employee residency requirements in contracts in which they entered for construction, alteration, or repair of school buildings. The parties to this appeal ask this court to determine whether the Pennsylvania Attorney General and Secretary of Education are proper defendants to a suit challenging the constitutionality of the successor to this Pennsylvania state statute. The parties also request that we determine whether the Pennsylvania statute is constitutional.
1st Westco Corporation is a construction company having its principal place of business in New Jersey. It and seven of its New Jersey resident employees, in their individual capacities (collectively Westco), brought suit in the United States District Court for the Eastern District of Pennsylvania against the School District of Philadelphia (the School District) and the Commonwealth of Pennsylvania (the Commonwealth). Westco alleged that section 7-754 of the Pennsylvania Public School Code (the Code), 24 Pa.Stat.Ann. Sec. 7-754 (Purdon's 1992) (section 754), 1 which mandates that only Pennsylvania residents may work on public school construction projects, violates the Privileges and Immunities Clause (the P & I Clause) of the United States Constitution, Article IV, Section 2, Clause 1, and the Commerce Clause of the United States Constitution (Commerce Clause), Article I, Section 8, Clause 3.
The School District decided that Westco was in violation of Sec. 754, and thus could no longer continue to work for the School District. At the request of Westco, the district court entered a temporary restraining order (TRO) prohibiting the School District and the Commonwealth from enforcing the statute pending a preliminary injunction hearing. Following the hearing, the court lifted the TRO and denied the preliminary injunction.
Just prior to the hearing, the Commonwealth moved to dismiss the claims against it based on the Eleventh Amendment to the United States Constitution. During the pendency of the motion, the School District filed a third-party complaint against Donald M. Carroll, Jr., Pennsylvania's Secretary of Education (Secretary), and Ernest D. Preate, Jr., Pennsylvania's Attorney General (collectively, Commonwealth Officials).
The Commonwealth Officials moved to dismiss the third-party complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted, arguing that neither of the Commonwealth Officials was authorized to enforce, or had threatened to enforce, section 754.
The district court granted the Commonwealth's motion to dismiss based on the Eleventh Amendment, but denied the Commonwealth Officials' motion to dismiss the third-party complaint. The court reasoned that the Attorney General had advised the Secretary that section 754 was constitutional, and the Secretary relayed that opinion to the School District. The court held that those acts, coupled with the Commonwealth Officials' general responsibilities for overseeing Following discovery, each side filed motions for summary judgment, supported by expert reports and other data and documents. The district court entered summary judgment in favor of Westco and against the School District and the Commonwealth Officials, holding that section 754 violates the P & I Clause, 811 F.Supp. 204. 2
compliance with the laws of Pennsylvania, provided a sufficient predicate for liability.
The Commonwealth Officials filed a timely notice of appeal, both for the district court's denial of their motion to dismiss and the court's grant of summary judgment in favor of Westco.
In the case sub judice Westco attempts to merge the identity of the Commonwealth of Pennsylvania with those of the Attorney General and the Secretary by joining them in a lawsuit to which their connection is highly attenuated. We do not agree that the Commonwealth Officials can properly be conscripted as proxies for the state to attach liability to them. Accordingly, we reverse.
Section 754 provides that all construction, alteration, or repair of public school buildings must be done by Pennsylvania residents. If a contractor allows citizens of a foreign state to work on such a project, section 754 authorizes the school district in charge of the construction to refuse payment for the labor.
The Secretary is empowered to review and approve specifications for the construction and reconstruction of school buildings, and he may refuse to approve specifications for work that does not comply with the residency requirements. However, this authority to review and approve specifications is limited to second, third, and fourth class school districts. 24 Pa.Stat.Ann. Sec. 7-731 (Purdon's 1992). Philadelphia is a first class school district, and thus the Secretary's power of review does not extend to it. Id. at Sec. 2-202.
The Attorney General has the duty, upon request, to provide legal advice to the head of any Commonwealth agency, and although the Department of Education qualifies, a school district is not considered such an agency. 71 Pa.Stat.Ann. Secs. 732-204(a), 732-102 (Purdon's 1990). In providing this advice, the Attorney General must "uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction." Id. at Sec. 732-204(a)(3). The advice of the Attorney General, once sought, shall be followed by the requesting agency. Id. at Sec. 732-204(a)(1).
In 1988, the School District requested that the Secretary render an opinion about the constitutionality of section 754. The Secretary, in turn, made the same request of the Attorney General. On June 15, 1988, then Attorney General Leroy S. Zimmerman issued an opinion letter to the Secretary stating that, because section 754 has not been invalidated by a court, "[he is] compelled to respect the presumptive constitutionality of Section 754 ... and you are advised accordingly that the Department of Education has the duty to enforce it." The Department of Education relayed this message to the School District. Although the Attorney General's opinion was binding on the Secretary, it had no such effect on the School District.
In January of 1991, nearly three years after the School District requested the opinion from the Secretary, the School District awarded Westco three contracts for window construction and renovation at three of the district's school buildings. However, the School District soon directed Westco to stop working on all three projects because it had failed to comply with section 754's residency requirement by assigning seven New Jersey residents to work on the School District projects. Westco replaced the New Jersey residents with Pennsylvanians, and continued to fulfill its contract with the School District. The lawsuit underlying this appeal followed.
The standard of review for the district court's application of the legal precepts involved in this case is plenary, but the trial court's factual determinations are reviewed subject to the clearly erroneous standard. Waldorf v. Shuta, 896 F.2d 723, 728 (3d Cir.1990).
Under Article III of the Constitution, a federal court may exercise jurisdiction only A plaintiff challenging the validity of a state statute may bring suit against the official who is charged with the statute's enforcement only if the official has either enforced, or threatened to enforce, the statute against the plaintiffs. Rode v. Dellarciprete, 845 F.2d 1195, 1209 n. 9 (3d Cir.1988) (Rosenn, J.). General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law. Id. at 1208.
where there is an actual case or controversy to be decided. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). "[T]he question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of declaratory judgment." Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).
In this case, the statute charges the School District, not the Commonwealth Officials, with enforcing ...
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