United States District Court, E.D. Pennsylvania
STANLEY F. FROMPOVICZ, JR., Plaintiff,
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al., Defendants.
OPINION AND ORDER
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
Stanley F. Frompovicz, Jr., brought this pro se Section 1983
action, which centers around the bottled water industry in
Pennsylvania, against the Pennsylvania Department of
Environmental Protection, the Pennsylvania Department of
Agriculture (collectively the “Agency
Defendants”), and twenty-six state employees (ten of
whom are unnamed) in their official and personal capacities.
Complaint, ECF No. 1. Although somewhat unclear, the
Complaint seems to allege the following. Frompovicz,
operating as Far Away Springs, runs a bulk water supply
hauling company that has a Department of Environmental
Protection permit to remove and sell spring water for the
bottled water industry. Compl. ¶¶ 1, 31. Department
of Environmental Protection regulations draw a distinction
between “raw” and “finished” water:
water shipped to bottling facilities in raw form is not
subject to monitoring or testing requirements, but water
shipped in finished form must comply with the Department of
Environmental Protection's monitoring, testing, and
reporting requirements. Compl. ¶¶ 41. Thus,
suppliers permitted to ship water in raw form have a
significant advantage over competitors shipping finished
water because they are subject to less regulation.
Id. Frompovicz complains that, since at least 2008,
the Department of Environmental Protection has allowed a
competitor, MCR, to ship raw water to outside purchasers,
whereas Far Away is not permitted to ship raw water to
outside purchasers. Compl. ¶¶ 36-40, 62.
also alleges “disparate enforcement” of
Department of Environmental Protection regulations and
procedures. Compl. ¶ 60. As a result of a positive test
for contamination in the water supply of one of Far
Away's customers in 2015, the Department of Environmental
Protection issued an order prohibiting Far Away from shipping
water for human consumption. Compl. ¶¶ 65, 83-86,
132. Far Away stopped its shipments and complied with all its
responsibilities to resolve the issue, but the Department of
Environmental Protection failed to issue a “Corrections
Completed Notice” as required by the terms of its order
to allow Far Away to resume shipments. Compl. ¶¶
146-49. Meanwhile, the Department of Environmental Protection
permitted MCR to continue shipping “unpermitted,
untested, unmonitored” raw water while its permit was
suspended, including to customers whose business Far Away
missed out on as a result of the order. Compl. ¶¶
83-86, 132, 152.
two months after he filed his Complaint, Frompovicz filed a
motion for preliminary injunctive relief, ECF No. 5, to which
the Agency Defendants responded, ECF No. 7. Frompovicz asks
this Court to enter an injunction against the Department of
Environmental Protection and the Department of Agriculture
ordering the agencies to comply with various state and
federal regulations concerning the supply of water to bottled
water systems, specifically, among other things, to stop
water supply from “unpermitted sources” to water
bottling plants and to “enforce the conditions
contained in the Permits of all similarly situated water
suppliers in an equal manner.” Mot. 12.
Applicable Legal Standard
plaintiff seeking a preliminary injunction must establish
“that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tip in his
favor, and that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (citations omitted). Because
a preliminary injunction is an “extraordinary and
drastic remedy, ” a court should grant relief only if
the movant carries the burden of persuasion and shows that
each of the four elements weighs in favor of granting a
preliminary injunction; failure to establish any of the four
elements makes a preliminary injunction inappropriate.
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam) (quoting 11A Wright & Miller, Federal
Practice and Procedure § 2948 (2d ed. 1995));
Ferring Pharmaceuticals, Inc. v. Watson Pharmaceuticals,
Inc., 765 F.3d 205, 210 (3d Cir. 2014) (concluding that
a failure to establish any element renders preliminary
injunction inappropriate) (quoting NutraSweet Co. v.
Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.
Eleventh Amendment sovereign immunity under the United States
Constitution bars suits against the Commonwealth of
Pennsylvania and its agencies. Therefore, this Court lacks
jurisdiction over the Agency Defendants and Frompovicz cannot
establish that he is likely to succeed on the merits of his
claim. The United States Supreme Court has held that, subject
to narrow exceptions, the Eleventh Amendment bars suits in
federal court against states and state agencies. See
Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261
(1997). The Eleventh Amendment to the United States
Constitution states: “The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States . . . .” U.S. Const. amend. XI. Eleventh
Amendment sovereign immunity applies regardless of the relief
a plaintiff seeks. Cory v. White, 457 U.S. 85, 90-91
(1982) (holding that Eleventh Amendment immunity precludes
both suits for money judgments and suits for injunctive
relief). Both the Department of Environmental Protection and
Department of Agriculture can claim Eleventh Amendment
sovereign immunity because they are agencies of the
Commonwealth of Pennsylvania. Pioneer Aggregates, Inc. v.
Pennsylvania Dep't of Envtl. Prot., No.
3:11-CV-00325, 2012 WL 4364073, at *4-5 (M.D. Pa. Sept. 21,
2012) (holding that the Pennsylvania Department of
Environmental Protection is an agency of the Commonwealth
protected by sovereign immunity), aff'd, 540 F.
App'x 118 (3d Cir. 2013); M & M Stone Co. v.
Pennsylvania, Dep't of Envtl. Prot., No. CIV.A.
07-CV-04784, 2008 WL 4467176, at *14 (E.D. Pa. Sept. 29,
2008) (same); Winkler v. Pennsylvania-Dep't of
Agric., 994 F.Supp.2d 668, 672 (E.D. Pa. 2014) (holding
that the Pennsylvania Department of Agriculture is an agency
of the Commonwealth protected by sovereign immunity).
exceptions to Eleventh Amendment sovereign immunity exist.
First, Congress may abrogate Eleventh Amendment immunity by
expressing its “unequivocal” intent to abrogate
pursuant to a “valid exercise of power.”
Seminole Tribe of Florida v. Florida, 517 U.S. 44,
55 (1996). Second, states may waive their sovereign immunity
and consent to be sued, see Alden v. Maine, 527 U.S.
706, 755 (1999), but a state's waiver must “be
unequivocally expressed, ” Pennhurst State School
and Hospital v. Halderman, 465 U.S. 89, 99 (1984).
Third, the Ex parte Young doctrine allows
suits against individual state officers for declaratory and
prospective injunctive relief to remedy ongoing violations of
federal law. 209 U.S. 123 (1908).
these three exceptions applies in this case. First, although
Frompovicz insists that his claims arise under the federal
Safe Drinking Water Act, 42 U.S.C. § 300f-300j-27, he
does not demonstrate that the Act contains an
“unequivocal” expression of Congressional intent
to abrogate state sovereign immunity. In fact, the Act
contains an unequivocal expression of Congressional intent to
preserve state sovereign immunity under the Eleventh
Amendment in the section permitting civil actions by
Except as provided in subsection (b) of this section, any
person may commence a civil action on his own behalf--
(1) against any person (including (A) the United States, and
(B) any other governmental instrumentality or agency
to the extent permitted by the eleventh amendment
to the Constitution) who is alleged to be in
violation of any requirement prescribed by or under this
42 U.S.C. § 300j-8 (emphasis added). Second,
Pennsylvania has not waived its sovereign immunity.
See 42 Pa. C.S. § 8521(b); 1 Pa. C.S. §
2310; M & M Stone Co., 2008 WL 4467176, at *14.
Third, Ex parte Young does not apply because
Frompovicz seeks preliminary injunctive relief only against
the Agency Defendants, and the doctrine does not apply where
the defendant claiming immunity is not a state officer, but