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PUBLIC HOUS. ADMIN. v. BRISTOL TWP.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


December 3, 1956

PUBLIC HOUSING ADMINISTRATION an Agency of the United States of America
v.
BRISTOL TOWNSHIP, BUCKS COUNTY, PENNSYLVANIA, and Edward A. Wiler, Eugene Kehoe, James Dunleavy, John Gallagher, Fred K. Hibbs, Elbert J. Kohle, Rudolph Krause, Harold Lefcourt, Wayne W. Locke, Laurence Mervine, Albert H. Rogers, Jr., Thomas Comen, Township Commissioners of Bristol Township, Bucks County, Pennsylvania, and Earl Dougherty, Justice of the Peace, Edgely, Bristol Township, Bucks County, Pa

The opinion of the court was delivered by: DUSEN

This case comes before the court on plaintiff's motion for a preliminary injunction and on defendants' motion for entry of judgment in their favor made at the conclusion of the hearing held on the motion for preliminary injunction. *fn1" The hearing judge's conclusion that the defendants are entitled to the entry of judgment in their favor, on the basis of the entire record, makes it unnecessary to consider the motion *fn2" for dismissal of the action made by defendants at the conclusion of plaintiff's case.

Plaintiff (a corporation and agency of the United States of America) seeks to enjoin Bristol Township (located in Bucks County, Pa.), the twelve Commissioners of that Township, and a Justice of the Pease of that Township from enforcing a stop work order issued by the Building Officer of the Township for failure of an electrical contractor to secure building permits *fn3" prior to doing some electrical work under a contract with plaintiff on a public housing project owned and operated by plaintiff and known as Bristol Terrace I. The General Housing Manager of this project testified without contradiction that the sole purpose of the electrical repairs was to enable the plaintiff to sell the electrical system in the 199 units and in the administration building to the Philadelphia Electric Company, which sale is being made in order to facilitate the sale of these 199 units to private owners. *fn4" A private electric plant operated by plaintiff is now supplying electric current to the tenants of the project *fn5" but plaintiff's plan to sell the units *fn6" requires that current be available from a public utility and that meters be installed. *fn7" The contract under which this electric work was done provides (see paragraphs 1(a) and 4 of Detailed Specifications -- Exhibit P-7):

 '(a). The work in general consists of increasing the electrical service capacity, providing metering facilities and correct wiring defects to meet the requirements of the Philadelphia Electric Company and all local and national codes and regulations.

 '4. Installation Requirements

 'Install raceways, cables, wires, supports, switches, meter sockets, etc. as required and indicated on drawings, supplying such auxillary equipment and materials necessary to complete the installation to meet the requirements of the Philadelphia Electric Company and Local and National Codes.'

 The first sentence of paragraph 11 of the General Provisions of the Contract (see Exhibits P-7 and P-3) provides:

 'The Contractor shall, without additional expense to the Government, obtain all licenses and permits required for the prosecution of the work.'

 Bristol Terrace I is a permanent housing project, was completed in 1942 or 1943 under the Lanham Act of October 14, 1940, *fn8" 54 Stat. 1125, 42 U.S.C.A. § 1521 ff. as a war housing project *fn9" and is situated on approximately 35 acres of land in Bristol Township. It was being operated by the plaintiff in 1956 when the decision was made to take active steps to dispose of this property. *fn10" After competitive bids were received for the electric work described above, a contract dated June 25, 1956, was entered into with John Harold Bronson, trading as The Bronson Electric Company. *fn11" Bronson started work in July and on August 3, 1956, his foreman was instructed by the Bristol Township Building Official to terminate the electric work in accordance with a stop work order issued under Section 305 of the Bristol Township Building Code (Exhibit D-4A), which was posted at the job site and a copy of which was sent by registered mail to, and received by, Bronson. The next week the above-mentioned Building Official explained to Bronson on the phone that building permits for each of the 200 buildings to which repairs were to be made could be secured for $ 1.15 per building, or a total of $ 230. Bronson failed to apply for such permits and, on August 10, 1956, the Building Official had the Justice of the Peace issue 67 warrants charging Bronson with violation of Sections 309 and 309a of the Building Code *fn12" (see Exhibits D-5 *fn13" and D-6) in connection with 67 units on which he had been working. On August 16 Bronson appeared for a hearing and entered a plea of guilty. The Justice of the Peace imposed a fine and costs (under Section 1301 of the Code) in the total amount of $ 2445.50. Bronson has filed no appeal (Cf. 19 P.S. § 1189).

 The hearing judge adopts the foregoing as Findings of Fact.

 On September 7, 1956, this suit was started and a temporary restraining order was entered by the motion judge on that day, restraining all the defendants from enforcing the stop work order entered under the Building Code and the judgment entered by the Justice of the Peace. This temporary restraining order was terminated by order of the hearing judge dated November 29, 1956.

 The basic legal issue in this case is: may a contractor doing work for the Federal Government disregard building code legislation enacted by a local community under the police power, where the work to be done under the contract is solely for the purpose of facilitating the sale by the Federal Government of its property to private citizens? *fn14"

 The United States Supreme Court has held that, unless Congress provides to the contrary, a contractor who erects a Government post office 'does not share any governmental immunity' and is subject to 'provisions as to types of material, fire hazards and the like, which are covered by the New York City Building Code.' See James Stewart & Co. v. Sadrakula, 1940, 309 U.S. 94, 105, 60 S. Ct. 431, 436, 84 L. Ed. 596. It has been repeatedly held that a state may impose a nondiscriminatory tax on the activities of a contractor for the Federal Government. *fn15" Also, the United States Supreme Court has made clear that even employees of federal corporations acting as agencies of the United States (such as plaintiff) are not immune from reasonable state legislation. See Graves v. People of State of New York ex rel. O'Keefe, 1939, 306 U.S. 466, 59 S. Ct. 595, 83 L. Ed. 927. However, the Government contends that the Lanham Act is inconsistent with the above-mentioned sections of the Bristol Township Building Code.

 In applying the supremacy clause of the United States Constitution, Article VI, clause 2, the task of a court is to determine whether the state or local police power regulation (in this case, the requirement of the Bristol Township Building Code that permits be secured prior to the making of electrical repairs) *fn16" is compatible with the policy expressed in the federal statutes and in the Federal Constitution. An examination of the Lanham Act, as amended, 42 U.S.C.A. § 1521-1590, indicates to the hearing judge that Congress expressed no intent to exempt a contractor doing electrical work, in order to enable the sale of such housing units to private citizens, from a local building code requirement designed to protect the public safety. *fn17" In fact, Congress expressed its intent that projects constructed under this Act 'shall, so far as may be practicable, conform in location and design to local planning and tradition,' 42 U.S.C.A. § 1545 and that Government ownership of the project shall not 'deprive any State or political subdivision thereof, including any Territory or possession of the United States, of its civil and criminal jurisdiction in and over such property, or impair the civil rights under the State or local law of the inhabitants on such property.' 42 U.S.C.A. § 1547. *fn18" The Act recognizes that local governments will furnish services to projects such as Bristol Terrace I for which Congress provided compensation should be made. *fn19"

 The United States Supreme Court has consistently held that Congress, in enacting legislation within its constitutional authority, will not be deemed to have intended to invalidate state or local rules for protection of the public safety unless its purpose to do so is clearly stated. Southern Pacific Co. v. State of Arizona, 1945, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915; Rice v. Santa Fe Elevator Co., 1947, 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447; International Union, U.A.W.A.F. of L., Local 232 v. Wisconsin Employment Relations Board, 1949, 336 U.S. 245, 253, 69 S. Ct. 516, 93 L. Ed. 651; United States v. Burnison, 1950, 339 U.S. 87, 91-92, 70 S. Ct. 503, 94 L. Ed. 675.

 The United States Supreme Court has construed the language of Article IV, Section 3, of the Constitution *fn20" as requiring that the method of disposing of Government property 'must be consistent with the foundation principles of our dual system of government and must not be contrived to govern the concerns reserved to the States.' Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 338, 56 S. Ct. 446, 479, 80 L. Ed. 688.

 The United States Supreme Court has repeatedly stated that the extension of federal control into traditional local fields is a "'delicate exercise of legislative policy in achieving a wise accommodation between the needs of central control and the lively maintenance of local institutions."' See Davies Warehouse Co. v. Bowles, 1944, 321 U.S. 144, 154, 64 S. Ct. 474, 480, 88 L. Ed. 635, and cases there cited. The difficulty of determining whether Congress has intended to supersede the local police power in situations such as this is illustrated by many decisions of the United States Supreme Court. *fn21" However, the hearing judge believes that Congress did not intend, either by its specific enactments or by its silence, to interfere with the attempts of Bristol Township to require Mr. Bronson to secure building permits in this situation so as to safeguard the safety of its citizens from possibly hazardous electric repair work. The provisions of the contract make clear that the Public Housing Administration expected Bronson to comply with local codes and that the burden was placed upon him to secure permits. Under these circumstances, the plaintiff has not sustained the burden of proving that it is entitled to an injunction and judgment will be entered in favor of the defendants.

 The hearing judge makes the following conclusions of law:

 1. Congress has not manifested its intent to relieve John H. Bronson of securing the building permits mentioned above in performing the electrical repairs called for by the contract of June 25, 1956.

 2. Sections 309, 309a and 1106 of the Bristol Township Building Code are valid exercises of the police power.

 3. A federal court should not use its equitable power to enjoin the Justice of the Peace, Earl Dougherty, in carrying out the criminal law of Bristol Township, as contained in Section 1301 of the Bristol Township Building Code. *fn22"

 4. Under all the circumstances, defendants are entitled to the entry of judgment in their favor.

 Supplemental Opinion in United States of America v. Bristol Township, et al.

 This case is now before the court on plaintiff's motion filed December 12, 1956, (a) to open the judgment entered December 3, 1956, after both parties had been granted unlimited opportunity to present testimony at two hearings held for the purpose, (b) to stay proceedings, and (c) for a new trial or a rehearing.

 In order to give plaintiff every opportunity to present its viewpoint, the hearing judge gave plaintiff another opportunity to present evidence on December 21, 1956. *fn1" This evidence *fn2" disclosed that the practice of the Bristol Township Building Official was to waive the filing of detailed plans as part of the application for a Building Permit contemplated by Sections 309 and 1106 of the Bristol Township Code, unless the application as submitted disclosed the need for such plans. It also showed that inspection cards had been received from the Middle Department Association of Fire Underwriters *fn3" approving the work already done by The Bronson Electric Company under the contract dated June 25, 1956. *fn4" The record also makes clear that all the work contemplated by the contract dated June 25, 1956, has not been completed and cannot be completed until the Philadelphia Electric Company does some additional work which is expected to be performed early this year. For this reason, all the work contemplated by the contract of June 25, 1956, could not have been inspected on the last hearing dated (12/21/56).

 The foregoing are adopted as findings of fact supplemental to those contained in the opinion of December 3, 1956.

 In connection with the issues attempted to be framed by plaintiff's counsel in paragraph 3 of the above-mentioned motion filed December 12, 1956, *fn5" Conclusions of Law 1 and 2 (see page 865) of Opinion of December 3, 1956, makes clear that the sections of the Bristol Township Building Code referred to in Conclusion of Law 2 are applicable to Mr. Bronson. It is not the function of a court to give an advisory opinion to plaintiff on the 'purposes' of these sections or exactly what data should be contained in the applications for building permits. *fn6" Plaintiff has not sustained its burden of proving that the securing of these building permits would interfere with, or obstruct, in a substantial way the performance of federal functions. The cases relied on by plaintiff in its able brief involve substantially different factual situations. The Ashwander followed in disposing of federal property, followed in disposing of federal property, which is the situation before this court, and that case establishes a rule far different from those followed in the cases cited by plaintiff. *fn7"

 The first sentence of page 7 of the opinion of December 3, 1956, (146 F.Supp. 863) is inaccurate *fn8" as worded and is amended to read as follows:

 'The United States Supreme Court has stated that, unless Congress provides to the contrary, a contractor who erects a Government post office 'does not share any governmental immunity' and 'such a safety regulation as 241(4) of the New York Labor Law (McK.Consol.Laws, c. 31) provides is effective in the federal area, until such time as the Congress may otherwise provide.' See Stewart & Co. v. Sadrakula, 1940, 309 U.S. 94, 105 (60 S. Ct. 431, 84 L. Ed. 596).'

 The cases cited in footnote 16, of the December 3 opinion (146 F.Supp. 863) make clear that local ordinances of the type involved here, which are designed to promote public safety through the elimination of fire hazards, are not in violation of the United States Constitution.

  Order.

 And Now, January 3, 1957, It Is Ordered that plaintiff's motion filed December 12, 1956, to open judgment, to stay proceedings and for a new trial is Denied.


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