AND NOW this 30th day of May, 1985, having considered plaintiff's request for preliminary injunction on which the court has held oral argument, and all pending motions to dismiss and/or to strike which have been fully briefed by the parties, IT IS ORDERED in accordance with the accompanying opinion that:
1) Plaintiff's motion for preliminary injunction is DENIED;
2) Defendants' motion to dismiss plaintiff's Section 1983 civil rights claim is GRANTED, and Count II of the Second Amended Complaint alleging civil rights violations against Duritsa, Orlando and Luci is DISMISSED;
3) All claims against DER are DISMISSED and the action is DISCONTINUED as to it;
4) All claims against defendants Duritsa, Orlando and Luci in their official capacity as state employees are DISMISSED; the action continues against these defendants as individuals only;
5) BFI's motion to dismiss for improper venue and lack of in personam jurisdiction is DENIED;
6) Defendants' motions to dismiss plaintiff's Sherman Act and Section 4 Clayton Act antitrust claims are DENIED; Defendants' motion to dismiss that portion of Count IV which alleges a Section 2(c) Robinson-Patman Act violation pursuant to 15 U.S.C. § 13(c) is GRANTED;
7) Defendants' motions to dismiss plaintiff's RICO claims (Count I) are STAYED;
8) Defendants' motions to dismiss pendant state claims are DENIED;
9) Defendants' motions to strike specific damage amounts alleged in violation of Local Rule of Court 30 is GRANTED;
10) Remaining defendants shall file their answers to the Second Amended Complaint in accord with the accompanying opinion, within 20 days. Discovery shall proceed in accord with the accompanying opinion except on matters involved in the RICO act claims.
WEBER, D. J.
This action seeking compensatory and punitive damages as well as injunctive relief was brought by an individual involved in the business of trash hauling and disposal against various competitors, the Pennsylvania Department of Environmental Resources (DER), and three DER employees. The complaint, which has undergone various amendments, alleges that all defendants were involved in violations of the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962; Sections 1 and 2 of the Sherman Act; Sections 2(c) and 4 of the Clayton Act, 15 U.S.C. §§ 13(c) and 15); as well as pendant state claims of unjust enrichment, commercial bribery, and inducement to breach fiduciary duty. Civil rights violations are alleged only against DER, Duritsa, Orlando and Luci.
Plaintiff filed an application for a preliminary injunction. Responses to the motion were filed by various defendants and a hearing was conducted on the issues. The hearing on the preliminary injunction was continued, pending arguments on related issues in another case before this court, Reeger v. Mill Service, Inc., et al., 593 F. Supp. 360 (W.D.Pa. 1984), which case has since been dismissed. Defendants have filed answers and/or motions to dismiss the amended complaint. These motions are now pending before the court and have been fully briefed.
I. MOTION FOR PRELIMINARY INJUNCTION
A request for preliminary injunction under Fed.R.Civ.P. 65 must provide specific facts which indicate a) the immediate and irreparable harm which is at issue, b) a reasonable likelihood that plaintiff will be successful on the merits of the suit, c) the possibility of harm to other interested persons from the granting and/or denial of relief as requested, and d) if relevant, the effect of an injunction on the public interest. See Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980); Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir. 1980).
Plaintiff here asks this court to enjoin the Department of Environmental Resources, (DER) and all those defendants acting in concert with it, from "arbitrary and unequal application or implementation of the rules and regulations of the Solid Waste Management Act, and other environmental laws of the United States and the Commonwealth of Pennsylvania." (Amended Complaint, at 56). Specifically plaintiff seeks an injunction which would enjoin DER from denying plaintiff Municipal Disposal Company a permit to operate its landfill site since this amounts to an injunction against the State based on state law, consideration must be given to Eleventh Amendment concerns in determining plaintiff's likelihood of success.
Defendants cite Pennhurst State School and Hospital v. Halderman, (Pennhurst II), 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) as authority for the proposition that the Eleventh Amendment prohibits the injunctive relief requested and move to dismiss the amended complaint as to DER, Duritsa, Orlando and Luci (all DER employees) on this basis.
We recognize that the state DER, an agency of the state itself, may not be sued in federal court unless the state has waived its Eleventh Amendment immunity or Congress has subjected states to suit pursuant to Section 5 of the Fourteenth Amendment. Alabama v. Pugh, 438 U.S. 781, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1978). The state DER must be dismissed since neither of the above circumstances are present here.
We also agree that insofar as plaintiff's request for injunctive relief is directed against the state and is based on violations of state law (Solid Waste Management Act, 35 P.S. § 6018.101 et seq.; Clean Streams Law, 35 P.S. § 691.1 et seq.) it may not be heard in federal court. Moreover this Eleventh Amendment barrier may not be overcome by suing the state officials or seeking only prospective relief since these narrow exceptions under Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908) and Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) "are inapplicable in a suit against state officials on the basis of state law." Pennhurst II, 52 U.S.L.W. at 4159. Thus state law claims against Duritsa, Orlando and Luci as DER employees would not withstand a motion to dismiss.
The Eleventh Amendment is not a bar to all prospective relief against state officials, however, if violations of federal law are established. Ex parte Young, supra, concluded that where a state officer violates the constitutional rights of others by enforcing an unconstitutional statute, that officer is divested of any official power and acts ultra vires. Thus the Eleventh Amendment would not bar litigation in federal court against such officers.
Plaintiff argues that the Ex parte Young exception applies here since defendants' unequal and arbitrary application of the laws constitutes a violation of plaintiff's constitutional rights under the Fourteenth Amendment. There is no allegation that a state statute or regulation is itself unconstitutional. Rather defendants allegedly enforced constitutionally proper laws in an unconstitutional manner. This argument appears to extend the Ex parte Young exception, and we are reluctant to give such an extension favorable consideration. We conclude that plaintiff is not entitled to the injunctive relief that it seeks since there appears to be no likelihood of success on the merits.
II. MOTIONS TO DISMISS 42 U.S.C. § 1983 CLAIM.
Aside from Eleventh Amendment considerations, we conclude that plaintiff fails to state a Section 1983 cause of action for the following reasons:
A. The complaint does not allege invidious discrimination (i.e. sex, race) and fails to demonstrate the "unjust and illegal discrimination between persons in similar circumstances" needed to establish unequal administration of the law by a public authority and the denial of equal protection. United States v. Torquato, 602 F.2d 564, 568 (3d Cir. 1979); Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886).
B. The right asserted by plaintiff is a property right "to use and/or operate its industrial/hazardous waste facility or to appeal its consent order which Municipal was forced to sign in violation of the Fifth Amendment . . . ." (Amended Complaint at 48, paragraphs 142-143). We know of no such federally protected right. See Middlesex County Sewage Authority v. National Sea-Clammers Association, 453 U.S. 1, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). Moreover, even if such a right exists, constitutionally adequate state administrative procedures exist which satisfy procedural due process. See Parratt v. Taylor, 451 U.S. 527, 543, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).
C. Any potential action under 42 U.S.C. § 1983 of the Civil Rights Act is superceded by the comprehensive remedial enforcement scheme embodied in the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. and the Federal Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq. which provide exclusive remedies. Middlesex County Sewage Authority v. National Sea-Clammers Association, 453 U.S. 1, 20, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981); Reeger v. Mill Service et al., 593 F. Supp. 360 (W.D. Pa. 1984).
For these reasons, we dismiss Count II of the Amended Complaint which alleges Section 1983 civil rights violations against DER, Duritsa, Orlando and Luci.
III. MOTIONS TO DISMISS ALL OTHER CLAIMS AGAINST DER
Due to Eleventh Amendment considerations, discussed earlier in regard to plaintiff's motion for injunctive relief, we believe that plaintiff's state law claims against DER must be dismissed. Alabama v. Pugh, supra; Pennhurst II, supra. We also believe that the remaining federal law claims against DER are barred by the Eleventh Amendment and must be dismissed since we find that the Ex parte Young exception does not apply.
Neither has there been a waiver of immunity by the state or congressional abrogation of the immunity.
Thus all claims against DER will be dismissed and the action discontinued as to it.
IV. MOTIONS TO DISMISS ALL OTHER CLAIMS AGAINST STATE EMPLOYEES.
Plaintiff alleges inter alia that Orlando, Duritsa, and Luci, employees of DER, had extorted and accepted cash or other valuable property from landfill operators as a prerequisite to issuing permits, had accepted bribes in return for their aid and cooperation in monopolization attempts, and had permitted violations of environmental laws by certain landfills. Further Orlando is alleged to have altered water samples and falsified water sample reports to DER. These defendants have been sued individually and in their official capacities. (See Amended Complaint at 46, par. 137). All of these defendants have filed motions to dismiss and they will be jointly considered.
The actions which are complained of by plaintiff concerns the manner in which these three defendants performed their official duties. To this extent, plaintiff's federal and state claims are barred by the Eleventh Amendment.
However, plaintiff here specifically alleges that it is also suing these defendants as individuals, and argues that defendants committed criminal acts which were part of an overall conspiracy. To the extent that plaintiff alleges individual liability on the part of these defendants for actions which are
a) not actions of the DER itself,