Frompovicz v. Hissner

434 F.Supp.3d 269

Stanley F. FROMPOVICZ Jr, Plaintiff,

v.David HISSNER, et.al, Defendants.

No. 17-cv-02790

United States District Court, E.D. Pennsylvania.

Filed January 22, 2020

Devon M. Jacob, Jacob Litigation, Mechanicsburg, PA, for Plaintiff.

Matthew R. Skolnik, Sarina M. Kaplan, Pennsylvania Office of the Attorney General, Philadelphia, PA, for Defendants.

OPINION

Defendants' Motion for Summary Judgment, ECF No. 37 – Granted Plaintiff's Partial Motion for Summary Judgment, ECF No. 38 – Denied

Joseph F. Leeson, Jr., United States District Judge

I. INTRODUCTION

In this civil rights suit, the Plaintiff, Stanley F. Frompovicz Jr, owned land on which he pumped and sold water to bottlers. However, after a positive test for E. coli and total coliform, the Pennsylvania Department of Environmental Protection (the DEP) issued a Field Order temporarily ceasing operations until Frompovicz implemented the corrective measures set forth in the Field Order. To date, Frompovicz has failed to implement the corrective measures set forth in the Field Order. Frompovicz objected to his treatment by the DEP, including his treatment relative to similar businesses.

Frompovicz asserts various civil rights claims against Defendants David Hissner, Lisa Daniels, Dawn Hissner, Lynne Scheetz, Rod Nesmith, Jeffrey Allgyer, David Mitter, Peter Mangak, Todd Ostir, Brian Yagiello, Brian Busher, Jason Minnich, Joshua Krammes, and DEP John Does #1-10 of the DEP, and Lydia Johnson, Gary Landiak, Judith Miller, and Pennsylvania Department of Agriculture John Does #1-10 of the Pennsylvania Department of Agriculture (collectively, defendants) in their individual and official capacities. He asserts substantive and procedural due process claims for the issuance of the Field Order, a Takings Clause claim, an Equal Protection claim, a retaliation claim pursuant to Section 1983, and a conspiracy claim pursuant to Section 1983.

The parties filed cross-motions for summary judgment, with Frompovicz only moving for summary judgment on Counts One and Four. Based upon a review of the law, there is no genuine dispute of material fact, and Frompovicz's claims fail as a matter of law. For the following reasons, Defendants' motion for summary judgment is granted and Frompovicz's partial motion for summary judgment is denied.

II. FACTUAL BACKGROUND

The following facts are undisputed:

Frompovicz is the owner of Far Away Springs, a business entity with sites in South Manheim Township and Brandonville. Def. Stat. Facts. ¶ 1; ECF No. 37-1. The Manheim Township site is known as "Far Away Auburn" and the Brandonville location is known as "Far Away Brandonville." Id. at ¶ 2. In 2002, the DEP issued Public Water Supply Permit No. 3546502 to Frompovicz for the operation of Far Away Auburn as a spring water source and bulk water hauling system. Id. at ¶ 3. Frompovicz has a separate DEP Public Water Supply permit for Far Away Brandonville, which remains active today. Id. at ¶ 5.

Defendants are responsible for enforcing the Pennsylvania Safe Drinking Water Act (SDWA), 35 P.S. §§ 721.1 - 721.17, by promulgating regulations published in Title 25, Chapter 109 of the Pennsylvania Code. Id. at ¶ 3. On April 25, 2014, Defendants issued a modified version of Far Away Auburn's Public Water Supply permit to Frompovicz for "System A" by agreement. Id. at ¶ 6. Between April 25, 2014, and June 2015, Frompovicz supplied water from Far Away Auburn and sold it to the Niagara water bottling plant in Hamburg (Niagara Hamburg), which was Frompovicz's only customer for water from System A. Id. at ¶ 8. Frompovicz's permit for Far Away Auburn states, "If no finished water is delivered in any given month, a letter shall be submitted to the Pottsville District Office ... indicating that no finished water was hauled under the permit for the previous month." See ECF No. 37-2, Ex. 4.

For systems such as Far Away Auburn, the permit issued is for bottled water and vended water systems, retail water facilities, and bulk water hauling systems, collectively referred to as "BVRBs." As such, they are subject to the requirements of Subchapter J of the SDWA regulations, 25 Pa. Code §§ 109.1001 - 109.1009. Id. at ¶ 10. BVRBs are required to monitor for compliance with the maximum permissible level of a contaminant in water, pursuant to 25 Pa. Code § 109.1003(a). This includes weekly testing of E. coli . Id. at ¶ 11. If a public water supplier, like Frompovicz, receives a positive test for E. coli , that public water supplier must notify Defendants within one hour. Id. at ¶ 14. If a routine monitoring sample tested positive for total coliform, four additional check samples are required to be collected within twenty-four hours of the public water system being notified. Id. at ¶ 20.

On June 10, 2015, Frompovicz's weekly bacteriological sample of his water tested positive for the presence of E. coli and total coliform. Id. at ¶ 14. Frompovicz utilized Suburban Testing Labs to perform the required weekly monitoring of total coliform and E. coli at Far Away Auburn. Id. at ¶ 13. Suburban notified Frompovicz and the DEP of the positive test on June 11, 2015. Id. at ¶ 16. Frompovicz failed to notify Defendants within one hour per Pennsylvania law and on June 12, 2015, received an email from Defendants alerting Frompovicz of Defendants' awareness of the tainted sample. Id. at ¶ 16. The email additionally requested when Frompovicz was going to notify Defendants of the tainted sample, ordered him to cease water shipments to customers, ordered him to notify existing customers of the tainted sample with a certification attesting same, and alerted him Defendants have not received monthly reporting from Frompovicz since February 2015. Id. Defendants further notified Frompovicz "this is going straight for a penalty assessment." Id. Additionally, Frompovicz failed to collect four check samples of coliform within a twenty-four-hour period, only doing so June 16, 2016, five days after the initial positive test. Id. at ¶ 22.

Due to Frompovicz's positive test sample for E. coli and total coliform, Defendants inspected Frompovicz's only customer, Niagara Hamburg on June 18, 2015. Id. at ¶ 24. Niagara Hamburg notified Defendants of Frompovicz's failure to alert them of the positive test samples of E. coli and total coliform. Id. at ¶ 25. That same day, Defendants issued a Field Order for Frompovicz's numerous violations. Id. at ¶ 27. The Field Order instructed Frompovicz to immediately cease hauling water until he completed ten corrective orders. Id. at ¶¶ 27, 38. The Field Order also contained a notice of appeal rights. Id. The Field Order would be lifted once Frompovicz satisfied the conditions. Id. Niagara Hamburg voluntarily instituted a recall of products potentially tainted with Frompovicz's water. Id. at ¶ 33.

Approximately the same time, Frompovicz accused several competitors of similar conduct. Frompovicz alleged Defendants permitted James Land of Pine Valley Springs to ship unfinished water. Pl. Dep. at 92:8-18; ECF No. 37-2. However, Frompovicz admitted in his deposition he was allowed to ship unfinished water as well. Id. at 93:14-18. Land's DEP permit states, "If no finished water is delivered in any given month, a letter shall be submitted to the Pottsville District Office ... indicating that no finished water was hauled under the permit for the previous month." See ECF No. 37-2, Ex. 4. Defendants did issue a Notice of Violation to Land in September 2014 before ultimately revoking his permit because he did not qualify as a public water system. See ECF No. 37-10. Land successfully appealed the revocation. Id.

Next, Frompovicz accused competitor Aqua Filter Fresh of shipping E. coli tainted water with no repercussions. Defendant Lisa Daniels testified at her deposition there was a positive sample for E. coli ; but, Aqua Filter Fresh immediately rectified the issue by fixing the machinery that neutralized the E. coli . Daniels Dep. 118:5-120-25; ECF No. 37-6. Defendants issued an order to implement a product recall and provide documentation to Defendants about the recall. Id. at 119:17-20. Lastly, Frompovicz accused Mountain Springs of shipping E. coli tainted water. While water from Mountain Springs did test positive for E. coli , Defendants issued a Field Order and Mountain Springs rectified the issue which caused the positive test result. Id. at 152:16-153:3; 198:8-11.

Frompovicz filed his original complaint on June 19, 2017. This Court, in an Opinion and Order dated August 30, 2018, dismissed Frompovicz's complaint with leave to amend. Frompovicz filed his amended complaint on September 12, 2018, asserting a substantive due process violation, a procedural due process violation, conspiracy to deny due process, a Takings Clause violation, an Equal Protection Clause violation, and retaliation. The parties have filed cross-motions for summary judgment, with Frompovicz only filing for summary judgment on his substantive due process and Takings Clause claims.

III. LEGAL STANDARD

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) ; Turner v. Schering-Plough Corp. , 901 F.2d 335, 340 (3d Cir. 1990). A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law, and a dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once such a showing has been made, the non-moving party must go...