NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-2935
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CITIZENS FOR PENNSYLVANIA’S FUTURE,
Appellant
v.
PITTSBURGH WATER & SEWER AUTHORITY;
CITY OF PITTSBURGH
PITTSBURGH WATER & SEWER AUTHORITY,
Third Party Plaintiff
v.
THE BUNCHER COMPANY,
Third Party Defendant
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D. C. Civil Action No. 2-12-cv-00943 )
Magistrate Judge: Honorable Robert C. Mitchell
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Argued on April 29, 2015
Before: FISHER, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: October 27, 2015)
Heather M. Langeland, Esquire
Citizens for Pennsylvania’s Future
200 First Avenue, Suite 200
Pittsburgh, PA 15219
Kurt J. Weist, Esquire (Argued)
PennFuture
610 North Third Street
Harrisburg, PA 17101
Counsel for Appellant
Danny P. Cerrone, Jr., Esquire
Mark F. Nowak, Esquire
David G. Ries, Esquire (Argued)
Clark Hill
301 Grant Street
One Oxford Centre, 14th Floor
Pittsburgh, PA 15219
Counsel for Appellee Pittsburgh Water & Sewer Authority
Michael E. Kennedy, Esquire
City of Pittsburgh
Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219
Counsel for Appellee City of Pittsburgh
Joseph F. McDonough, Esquire
James G. McLean, Esquire
Buchanan Ingersoll & Rooney
301 Grant Street
One Oxford Centre, 20th Floor
Pittsburgh, PA 15219
Counsel for Appellee The Buncher Company
2
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OPINION*
________________
ROTH, Circuit Judge
Citizens for Pennsylvania’s Future (CPF) appeals the District Court’s grant of
summary judgment in favor of the Pittsburgh Water & Sewer Authority and the City of
Pittsburgh (collectively PWSA) in connection with CPF’s citizen suit for alleged
violations of the Clean Water Act and Pennsylvania Clean Streams Law. CPF argues that
the Magistrate Judge1 (1) improperly granted summary judgment on a ground not raised
by PWSA, (2) erred in granting summary judgment because failure to enforce an
ordinance adopted pursuant to the EPA permit for discharge of storm water run-off is an
actionable violation of the permit, and (3) abused his discretion in denying CPF’s motion
to reconsider. For the reasons that follow, we will vacate the District Court’s order
granting summary judgment and remand the case to the District Court to determine
whether the 2010 Ordinance was incorporated into, a condition of, or a requirement for
compliance with, the Permit.
I.
This action arises from CPF’s citizen suit alleging that PWSA and the City
violated the Permit by failing to enforce provisions of the 2010 Ordinance in connection
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
All parties consented to jurisdiction before the Magistrate Judge. See 28 U.S.C. § 636
et seq.
3
with the Eleventh Street Project. The Eleventh Street Project is a redevelopment project
undertaken by The Buncher Company in downtown Pittsburgh. CPF contends in the suit
that the 2010 Ordinance was passed pursuant to the Permit, and therefore its non-
enforcement gives rise to a cause of action under the CWA.
On September 9, 2013, PWSA filed a motion for summary judgment on the
ground that the 2010 Ordinance “is not incorporated into, a condition of, or requirement
for compliance of the Permit.”2 PWSA asserted that, while the 2007 Ordinances
“became part of the [Permit]” upon their adoption, the 2010 Ordinance was independent
of the Permit. In its response brief, CPF acknowledged that its claim rests on the 2010
Ordinance only and argued that the 2010 Ordinance, like the 2007 Ordinances, is part of
the stormwater management program under the Permit. On December 27, 2013, the
Magistrate Judge “temporarily denied” summary judgment “as to the application of the
2010 Ordinance” because the parties did not cite to any legal authority to support their
arguments.3 The Magistrate Judge directed PWSA “to file a renewed motion and brief in
support of summary judgment as to this claim only.”4
On January 31, 2014, PWSA filed a renewed motion for summary judgment, again
arguing that the 2010 Ordinance “is not incorporated into, a condition of, or requirement
for compliance of the Permit at issue in this case.”5 PWSA argued that the 2010
Ordinance imposed requirements that were not included in PADEP’s model ordinance,
2
J.A. 69.
3
Citizens for Pennsylvania’s Future v. Pittsburgh Water & Sewer Auth., No. 12-943,
2013 WL 6838690, at *7 (W.D. Pa. Dec. 27, 2013).
4
J.A. 174.
5
J.A. 176.
4
PADEP had not approved the 2010 Ordinance, and the Permit had not been modified or
amended to add the requirements of the 2010 Ordinance. CPF responded that while the
2010 Ordinance exceeded the minimum requirements of PADEP’s model ordinance, it
was not independent of the Permit and required no separate approval to become part of
the stormwater management program.
On April 7, 2014, the Magistrate Judge granted PWSA’s renewed motion with
respect to the CWA claim. The Magistrate Judge did not address the issue of the 2010
Ordinance’s applicability. Instead, he considered “whether an alleged violation of the
2010 Ordinance enacted pursuant to the [Permit] equates to a violation of the [Permit]
itself, and thus defies the CWA.”6 The Magistrate Judge held that the plain language of
the Permit does not impose a condition “that if the ordinances are violated that this results
in a violation of the permit itself.”7
On May 5, 2014, CPF filed a motion for reconsideration, asserting that the
Magistrate Judge decided a different issue than the one presented, and did so erroneously
because the Permit and CWA require compliance with all terms and conditions of the
Permit. The next day, the Magistrate Judge entered an order denying the motion without
an opinion. CPF appealed.
II.8
6
Citizens for Pennsylvania’s Future v. Pittsburgh Water & Sewer Auth., 13 F. Supp. 3d
493, 498 (W.D. Pa. 2014).
7
Id. at 500.
8
The District Court had jurisdiction over CPF’s federal law claim pursuant to 28 U.S.C.
§ 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
5
District courts may grant summary judgment on grounds not raised by a party after
placing the non-moving party on notice and providing it with “an opportunity to present
relevant evidence in opposition to that motion.”9 Notice is satisfied if “the targeted party
had reason to believe the court might reach the issue and received a fair opportunity to
put its best foot forward.”10 We have recognized an exception to the notice requirement
in cases where summary judgment is granted sua sponte and the following conditions are
present: “(1) the point at issue is purely legal; (2) the record was fully developed[;] and
(3) the failure to give notice does not prejudice the party.”11
PWSA’s original and renewed motions for summary judgment focused on whether
the 2010 Ordinance applied to the Eleventh Street Project as part of the Permit. PWSA
characterized the 2010 Ordinance as independent of the Permit, and therefore not
enforceable under the Permit. Even on appeal, PWSA maintains it is entitled to summary
judgment because “(a) [CPF] failed to establish any legal or factual basis for its claim
We exercise plenary review over the District Court’s order granting summary
judgment. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010).
“We review a denial of a motion for reconsideration for abuse of discretion, but we
review the District Court’s underlying legal determinations de novo and factual
determinations for clear error.” Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc.,
602 F.3d 237, 246 (3d Cir. 2010) (citation omitted).
9
Chambers Dev. Co. v. Passaic Cnty. Utils. Auth., 62 F.3d 582, 584 n.5 (3d Cir. 1995);
see Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Fed. R. Civ. P. 56(f).
10
Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215, 223 (3d Cir.
2004) (quoting Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir. 1999)) (internal
quotation marks omitted).
11
Id. at 219.
6
that the 2010 Ordinance is enforceable under the Permit and (b) the applicability of the
2010 Ordinance is an essential element of [CPF]’s prima facie case.”12
Despite the parties’ singular focus on the 2010 Ordinance’s applicability, the
Magistrate Judge resolved a different question: whether failure to enforce the standards
of the 2010 Ordinance – assuming it applied – constitutes a violation of the Permit. The
Magistrate Judge held that under the Permit’s terms, failure to enforce an ordinance does
not constitute a Permit violation.13
Because CPF did not have “reason to believe the court might reach the issue” and
did not “receive[ ] a fair opportunity to put [its] best foot forward[,]”14 the Magistrate
Judge erred in granting summary judgment on this ground without providing CPF with
notice and a reasonable opportunity to respond.15
While we have the discretion to consider whether the District Court’s decision
may be affirmed on alternative grounds supported by the record, we need not do so.16
Here, because the record is not sufficiently developed and the District Court never
addressed the specific question of whether the 2010 Ordinance was incorporated into,
was a condition of, or a requirement for compliance with, the Permit, we decline to
consider whether the entry of judgment for PWSA should be affirmed on this ground.
12
PWSA Br. at 17; see also PWSA Br. at 24 (“The core issue for summary judgment is
the applicability of the 2010 Ordinance.”).
13
Citizens for Pennsylvania’s Future, 13 F. Supp. 3d at 500.
14
Gibson, 355 F.3d at 223 (quoting Leyva, 171 F.3d at 720) (internal quotation marks
omitted).
15
We also find that the Magistrate Judge erred in denying CPF’s motion for
reconsideration. See Max’s Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
16
See Langer v. Monarch Life Ins. Co., 966 F.2d 786, 807-08 (3d Cir. 1992); see also
Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 97 (3d Cir. 2008).
7
Instead, we remand to the District Court to answer this question in the first instance, after
such briefing, argument, and discovery as it considers necessary.
III.
For the foregoing reasons, we will vacate the District Court’s summary judgment
order and remand for further proceedings.
8