that although Defendants were not parties to the prior
litigation, they are bound by the terms and conditions of the
modified consent decree and therefore may not take action
against Antrim for the same alleged violations of the Clean
Streams Law. Because we conclude that Antrim's complaint fails
as a matter of law, we will dismiss the complaint and need not
address Antrim's arguments in support of its motion for a
In construing a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), the complaint must be liberally construed and viewed
in the light most favorable to the Plaintiff. Gomez v. Toledo,
446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d
572 (1980). The factual allegations contained in the complaint
and every inference deducible therefrom must be accepted as
true for the purposes of the motion. United States v.
Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965).
The Court must determine whether "under any reasonable reading
of the pleadings, the plaintiff may be entitled to relief."
Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir.
1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d
808 (1989). We should not dismiss Antrim's complaint at the
pleading stage unless it appears beyond doubt that Antrim can
prove no set of facts in support of its claim which would
entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In light of these
principles we will now address Defendants' motion to dismiss
Antrim first asserts that Defendants are precluded from
enforcing the compliance orders because the provision at ¶ 4 of
the modified consent decree forecloses all future claims which
could have been alleged and binds all persons who had notice of
the claims and of the consent decree. Antrim argues that
Defendants should have intervened and participated in the suit
and should be bound by the modified consent decree. In Martin
v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989),
a case determining the scope of a consent decree, the Supreme
Court reaffirmed the general rule that persons are not bound by
a judgment unless they are parties to the litigation. The Court
emphasized the principle that "everyone should have his own day
in court." Wilks, 109 S.Ct. at 2184 (citing 18 C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure, § 4449, p.
417 (1981) (18 Wright)). The Court held that in order for a
person to be bound by a judgment he must be joined under
Fed.R.Civ.P. 19, or intervene under Fed.R.Civ.P. 24. The fact
that a person had an opportunity to intervene but chose not to
do so is irrelevant. Id. at 2186. The burden lies on existing
parties to bring into the litigation additional non-intervening
Antrim argues that Wilks is inapplicable here because the
Court did not address the case where a consent decree contains
a provision explicitly purporting to bind all potential
parties. In our view, the law is clear that consent decrees can
bind only parties, Id. at 2188, and, moreover, can bind only
those parties who have agreed to the consent decree. See
Firefighters v. Cleveland, 478 U.S. 501, 529, 106 S.Ct. 3063,
3079, 92 L.Ed.2d 405 (1986). The holding in Wilks was based on
the requirements of the Federal Rules of Civil Procedure.
Wilks, 109 S.Ct. at 2185. Because the Court held that parties
may not bind non-parties by entering consent decrees, it
follows that parties may not restrict the legal rights of
non-parties by including in a consent decree provisions
purporting to bind them. Antrim possessed no power to alter the
rule set forth in Wilks merely by including language in the
consent decree purporting to bind non-parties and Defendants
are not bound by ¶ 4 of the modified consent decree.
The Court in Wilks recognized that in some "limited
circumstances," a non-party may be bound by a judgment if his
interests are "adequately represented by someone with the same
interests who is a party." Id. at 2184, n. 2 (citations
omitted). Defendants do not appear to dispute Antrim's claim
that the alleged violations of the Clean Streams Law cited in
orders are based on the same facts and law which formed the
basis for the prior suit brought by the Foundation. Antrim
argues that even if Defendants are not bound by ¶ 4 of the
consent decree, Defendants are precluded from enforcing the
compliance orders because the Foundation adequately represented
Defendants in the first suit and possessed the same interests
The Wilks exception relating to "adequate representation"
appears to mirror the res judicata doctrine of "virtual
representation." See Mann v. City of Albany, 883 F.2d 999, 1003
(11th Cir. 1989) (comparing Wilks exception to doctrine of
virtual representation). The principle of virtual
representation expands res judicata by broadening the concept
of privity between parties to successive actions. In United
States v. ITT Rayonier, Inc., 627 F.2d 996 (9th Cir. 1980), the
court explained that a non-party may be barred by res judicata
if a party in the first suit "is so closely aligned with its
interests as to be its `virtual representative.'" Id. at 1003
(citations omitted). The doctrine of virtual representation, in
turn, "closely resembles the common law theory of concurrent
privity." Clark v. Amoco Prod. Co., 794 F.2d 967, 972-74 (5th
Cir. 1986). "[Privity] designates . . . a person so identified
in interest with a party to former litigation that he
represents precisely the same legal right in respect to the
subject matter involved. . . . Or . . . the term is
sufficiently inclusive `under the federal law of res judicata
[that] a person may be bound by a judgment even though not a
party if one of the parties to the suit is so closely aligned
with his interests as to be his virtual representative.'"
Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 688 n. 9 (7th
Cir. 1986) (citations omitted).
The court in Rayonier stated:
In some contexts, the relationship between
governmental authorities as public enforcers of
ordinances and private parties suing for
enforcement as private attorneys general is close
enough to preclude relitigation. Southwest Airlines
Co. v. Texas International Airlines, Inc.,
546 F.2d 84, 98 (5th Cir. 1977), cert. denied 434 U.S. 832,
98 S.Ct. 117, 54 L.Ed.2d 93 (1977).
627 F.2d at 1003. In Rayonier, the court held that the Federal
Environmental Protection Agency was barred from relitigating
issues already decided in a case in which it was not a party
because the Agency was in privity with a state environmental
protection agency which was a party. Id. The Court of Appeals
for the Third Circuit has held that for the doctrine to apply
the party in the first suit must have had some obligation to
safeguard the interests of the party in the second suit.
Moldovan v. Great Atlantic & Pacific Tea Co., 790 F.2d 894 (3d
Cir. 1986). See also, Alpert's Newspaper Delivery v. New York
Times, 876 F.2d 266, 270 (2d Cir. 1989) (requiring "authority
of representation" to establish privity); Pollard v. Cockrell,
578 F.2d 1002, 1008-09 (5th Cir. 1978) (requiring relationship
between parties establishing legal accountability). Whether a
party was the virtual representative of another ordinarily is a
question of fact. Aerojet-General Corp. v. Askew, 511 F.2d 710,
719 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46
L.Ed.2d 137 (1975). However, "privity is a legal determination
for the trial court as to whether the relationship between the
parties is sufficiently close to support preclusion." Phillips
v. Kidder, Peabody & Co., 750 F. Supp. 603, 607 (S.D.N.Y. 1990).
We must first decide whether Defendants and the Foundation
could have shared the same interests. Defendants argue that the
Foundation could not have shared their interests because the
Commonwealth's interest in representing the entire population
of the state necessarily is broader than the interests of a
small group of citizens. The citizens' suit provision of the
Clean Streams Law authorizes private persons to sue only to
abate nuisances and to compel compliance with the act. Private
persons may not sue for civil penalties. City of Philadelphia
v. Stepan Chem. Co., 544 F. Supp. 1135, 1150-51 (E.D.Pa. 1982).
The statute provides that a private citizen may commence a suit
"on his own behalf." 35 P.S. 691.601(c) (emphasis added).
Defendants argue that this language indicates that citizens'
suits are not brought on behalf of the public, we note that the
citizens' suit provision of the Federal Clean Water Act
contains identical language. This Court has noted previously
that private parties suing under the citizens' suit provisions
of the Clean Water Act act as private attorneys general to
"protect and advance the public's interest" rather than to
promote private interests. Pennsylvania Environmental Defense
Foundation v. Bellefonte Borough, 718 F. Supp. 431, 434 (M.D.Pa.
1989); see also, Middlesex County Sewerage Auth. v. National
Sea Clammers Assoc., 453 U.S. 1, 17 n. 27, 101 S.Ct. 2615, 2625
n. 27, 69 L.Ed.2d 435 (1981). We conclude that, as a matter of
law, the Foundation and Defendants may have shared the same
In Southwest Airlines Co. v. Texas Int'l Airlines, Inc.,
546 F.2d 84 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117,
54 L.Ed.2d 93 (1977), the court held that the federal
Government by nature adequately represents private rights and
interests and thus precludes relitigation by private citizens
unless some distinct individual cause of action existed which
the Government was not capable of representing. Id. at 98. In
neither Rayonier nor Southwest Airlines was the Government
precluded from relitigating a claim previously litigated by
private interests. Similarly, in Kerr-McGee Chem. Corp. v.
Hartigan, 816 F.2d 1177 (7th Cir. 1987), the court
distinguished between prior litigation brought by the
Government and prior private litigation. The court noted that
individual litigation generally "does not preclude relitigation
by the government." Hartigan, 816 F.2d at 1180. Citing 18
Wright, § 4458, at 520. See also, Hathorn v. Lovorn,
457 U.S. 255, 268 n. 23, 102 S.Ct. 2421, 2430 n. 23, 72 L.Ed.2d 824
(1982) (United States not bound in Voting Rights Act case);
Donovan v. Cunningham, 716 F.2d 1455, 1462 (5th Cir. 1983),
cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 839
(1984) (Government not bound in ERISA case); EEOC v.
Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir.), cert.
denied, 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368 (1975)
(Government not bound in Title VII case).
Private litigation may be precluded by prior public action
because governments are "representative of the cumulative
rights of private citizens." Hartigan, 816 F.2d at 1180-81 n.
4. Citing 18 Wright § 4458, at 521. The court in Hartigan,
quoting United States v. East Baton Rouge Parish School Bd.,
594 F.2d 56, 58 n. 6 (5th Cir. 1979), characterized the view
that private individuals may adequately represent the
Government interest as a "daring analytical leap." Hartigan,
816 F.2d 1177, 1180-81 n. 4. In the case at bar Antrim has not
alleged that the Foundation was in any way legally accountable
to these governmental defendants. Antrim has cited no cases
holding the Government bound by a prior suit litigated by a
private citizen. Courts applying the doctrine of virtual
representation have not held the Government and private
citizens to be in privity. To do so here would, in our view,
require an undue expansion of the existing preclusion doctrine.
We conclude that, as a matter of law, the Foundation was not
the virtual representative of Defendants.
Antrim seeks to distinguish cases such as Fitzsimmons,
Donovan, Hathorn, and Kimberly-Clark by pointing out that the
private litigants in those cases, unlike the Foundation, sought
to vindicate their own pecuniary interests.
Antrim correctly argues that the private litigants in those
cases did not represent the public interest as the Foundation
may have attempted to do here. However, Antrim acknowledges
that no remedy for a personal pecuniary interest exists under
the Federal Clean Water Act. Private persons may sue for civil
penalties under that statute but all damages are payable to the
United States Treasury. Public Interest Research Group of New
Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 82
(3d Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1018, 112
L.Ed.2d 1100 (1991). Although private suits under the Clean
Water Act represent the public interest, the Government is not
precluded from subsequently filing suit. Sierra Club v.
Electronic Controls Design, 909 F.2d 1350, 1356 n. 8 (9th Cir.
1990). We therefore conclude that the distinction drawn by
Antrim is not dispositive.
In Fitzsimmons, a case involving prior private litigation
under the ERISA statute, the Court expressed concern that
holding the Secretary of Labor barred by the doctrine of res
judicata would require the Secretary to intervene in "each and
every piece of litigation or forever be barred." Id., 805 F.2d
at 691. The Court also observed that barring the Government
from bringing suit would disadvantage ERISA beneficiaries in
general because they otherwise would be bound by any
mishandling of cases by prior private litigants. Id. Similar
concerns have been raised concerning the Federal Clean Water
Act. Commenting on the 1987 Amendments to the Act, Senator
Chafee noted that the rule permitting government relitigation
of previously litigated private claims need not be stated
explicitly in the statute because it would merely restate the
current law on preclusion. The Senator stated that the rule is
necessary to protect the public from "abusive, collusive, or
inadequate settlements" and to "maintain the ability of the
Government to set its own enforcement priorities." 133
Cong.Rec. S737 1264, (daily ed. Jan. 14, 1987) (statement of
Sen. Chafee). Federal courts uniformly have held that, as a
matter of law, the United States is not bound by prior private
litigation under the Clean Water Act if it was not a party to
such litigation. See Sierra Club, Inc. v. Electronic Controls
Design, 909 F.2d 1350, 1356 n. 8 (9th Cir. 1990); NRDC v.
Interstate Paper Corp., 29 Env't Rep. Cas. (BNA), 1135, 1136,
1988 WL 156749 (S.D.Ga. 1988); United States v. Atlas Powder
Co., 26 Env't Rep. Cas. (BNA), 1391, 1392 (E.D.Pa. 1987).
Citizens' suits under the Clean Water Act were intended to
supplement and not preclude government action. Gwaltney of
Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct.
376, 383, 98 L.Ed.2d 306 (1987).
In our view the same concerns are relevant when considering
the Pennsylvania Clean Streams Law. The legislative history
concerning the 1980 amendments to the Clean Streams Law which
added the citizens' suit provision is devoid of commentary and
is useless in any attempt to glean the intent of the
Legislature in this matter. However, we note that the citizens'
suit provision at issue closely resembles the analagous
provision in the federal law in structure and in content. The
citizens' suit provision of the Clean Streams Law, amended in
1980, bears a substantial similarity to the corresponding
provision of the Clean Water Act amended in 1972 and apparently
was patterned after it. We presume that the Pennsylvania
General Assembly was aware of the intended effect of the
federal citizens' suit provision on subsequent government
litigation. See General Electric Environmental Services, Inc.,
v. Envirotech Corp., 763 F. Supp. 113, 120 (M.D.Pa. 1991). The
General Assembly clearly declined specifically to bar suits by
Defendants. See id. To the extent that the intent of the
Legislature is discernable, it fails to support Antrim's
To permit private litigants to bind Defendants would unduly
burden Defendants' ability to perform their statutory duty
under the Clean Streams Law. Private parties in Clean Streams
Law litigation may enter consent decrees which do not require
the abatement of pollution. For example, in this case, the
parties' mutual reluctance to endure the costs and uncertainty
of litigation led to the entry of the consent decree. Amended
Complaint, ¶ 15. Allowing such litigation to bar subsequent
enforcement efforts by Defendants could conceivably grant a
polluter a license to continue to pollute and would limit
Defendants' discretion to enforce the law in the public
interest. As the Supreme Court observed in connection with the
Clean Water Act, such a result would "change the nature of the
citizens' role from interstitial to potentially intrusive. We
cannot agree that Congress intended such a result." Gwaltney,
108 S.Ct. at 383.
Antrim attempts to distinguish the Pennsylvania Clean Streams
Law from the Clean Water Act because while service of all
proposed consent decrees on the
Government is required by the 1987 amendments to the Federal
Clean Water Act, 33 U.S.C. § 1365(c)(3), service of proposed
consent decrees on the Commonwealth is not required under the
Clean Streams Law. Antrim thus argues that the federal statute
provides greater protection for Government enforcement agencies
then does the Clean Streams Law. Antrim further argues that the
fact that the General Assembly did not provide for any explicit
"reservation of rights" allowing government action after a
citizens' suit has been litigated is significant. Antrim
suggests that the intent of the Legislature must be interpreted
to bar Defendants from enforcing the law once a citizens' suit
has commenced. Under the Clean Water Act, even though the
Government must be sent a copy of a proposed consent decree, it
is not bound by the decree unless it is a party. The absence of
such a directive in the Clean Streams Law, in our view, does
not compel us to reach the conclusion that the Commonwealth
therefore is bound by private litigation brought pursuant to
the citizens' suit provision. Indeed, the absence of such a
provision supports the opposite result. Furthermore, the
absence of a provision specifically authorizing subsequent
suits by Defendants does not support Antrim's argument. See
Fitzsimmons, 805 F.2d 682, 691 (7th Cir. 1986) (declining to
find congressional intent to bar subsequent government action
in absence of explicit directive mandating preclusion).
Finally, Defendants note that under the Clean Streams Law,
each new day of noncompliance with the statute constitutes a
separate offense. 35 P.S. § 691.602(d). Defendants assert that
"each new day of violation gives rise to a new cause of action
under the statute. . . ." Reply Brief at 14. Defendants
therefore assert that even if the modified consent decree
forecloses all claims which could have been alleged by any
potential party in the first suit, any violations of the Clean
Streams Law which occurred after the entry of the modified
consent decree are not precluded. Defendants' argument is well
taken. The compliance orders which Antrim contests concern
alleged ongoing violations of the Clean Streams Law and
therefore could not have been encompassed by the modified
For all of the above reasons we conclude that Antrim's
complaint fails as a matter of law and must be dismissed.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Defendants' motion to dismiss the complaint filed July 8,
1991, is granted.
2. Antrim's amended complaint filed June 26, 1991, is
3. Antrim's motion for a preliminary injunction filed July 9,
1991, is denied.
4. The Clerk of Court shall close the file in this case.
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