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Fiore v. White

July 21, 1998

WILLIAM FIORE
v.
GREGORY WHITE, WARDEN OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH; THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLANTS



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 96-01231)

Before: Stapleton and Alito, Circuit Judges, and Shadur, District Judge*

The opinion of the court was delivered by: Alito, Circuit Judge

Argued on March 9, 1998

*Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

OPINION OF THE COURT

This is an appeal from an order granting a writ of habeas corpus to William Fiore, a state prisoner in Pennsylvania. The district court granted the writ after concluding that the Supreme Court of Pennsylvania violated Fiore's constitutional rights by failing to apply one of its decisions retroactively. Because state courts are under no constitutional obligation to apply their decisions retroactively, we reverse.

I.

William Fiore owned and operated a waste disposal facility in Elizabeth Township, Pennsylvania, during the late

1970s and early 1980s. In 1983, after the Pennsylvania Department of Environmental Resources (DER) discovered that hazardous wastes were seeping into a monitoring pipe underneath the facility, Fiore instructed the facility's general manger, David Scarpone, to alter the flow of the monitoring pipe. The alteration allowed hazardous wastes to be deposited surreptitiously in a nearby tributary while clean water flowed through the inspected portion of the monitoring pipe. State officials discovered the alteration in 1984 and brought criminal charges against Fiore and Scarpone under the Pennsylvania Solid Waste Management Act (SWMA), 35 P.S. §§ 6018.101.

Among other things, the criminal information charged that Fiore and Scarpone operated a hazardous waste facility without a permit in violation of 35 P.S. § 6018.401(a), a second degree felony under 35 P.S. § 6018.606(f). Although the state did not dispute the fact that Fiore had obtained a permit from the DER, Supp. App. at 51, the state proceeded on the theory that Fiore and Scarpone "so altered the monitoring system and so significantly departed from the terms of the permit that the operation of the hazardous waste facility thereafter was an unpermitted operation." Id. at 52. Following a jury trial, Fiore and Scarpone were convicted of operating a hazardous waste facility without a permit in violation of §§ 401(a) and 606(f). After a separate non-jury trial involving additional allegations of unauthorized activities, Fiore again was convicted of operating a hazardous waste facility without a permit in violation of §§ 401(a) and 606(f).*fn1 On April 10, 1987, the Court of Common Pleas sentenced Fiore to a prison term of two and one-half to five years, plus ten years' probation, for the jury-trial conviction under §§ 401(a) and 606(f). The court then sentenced Fiore to a consecutive prison term of two and one-half to five years, plus ten years' probation, for the non-jury-trial conviction under §§ 401(a) and 606(f). In addition, the court imposed a fine of $100,000 for each conviction under §§ 401(a) and 606(f).

On direct appeal to the Pennsylvania Superior Court, *fn2 Fiore contended that there was insufficient evidence to sustain his convictions under §§ 401(a) and 606(f) in light of the fact that he possessed a permit to operate a hazardous waste facility. The Superior Court rejected this argument and adopted the trial court's reasoning that Fiore's actions "represented such a significant departure from the terms of the existing permit that the operation of the hazardous waste facility was `un-permitted.' " App. 51, 63-64, 125-26. Fiore's convictions became final when the Supreme Court of Pennsylvania denied his petition for allowance of appeal on March 13, 1990.

More than a year after Fiore exhausted his direct appeal, the Commonwealth Court of Pennsylvania reversed Scarpone's conviction under §§ 401(a) and 606(f). Scarpone v. Commonwealth, 596 A.2d 892, 895 (Pa. Commw. Ct. 1991). The Commonwealth Court concluded that Scarpone could not be convicted of operating a hazardous waste facility without a permit when Fiore actually possessed a permit for the facility. Id. In reaching this Conclusion, the court explained that it would have been more appropriate to charge Scarpone with violating the terms of a permit, a first-degree felony under the SWMA. Id. The Supreme Court of Pennsylvania granted review in Scarpone's case, and Fiore filed a petition for extraordinary relief asking the Supreme Court to consolidate his case with Scarpone's. After denying Fiore's petition, the court affirmed the reversal of Scarpone's conviction. Commonwealth v. Scarpone, 634 A.2d 1109, 1112 (Pa. 1993). The court explained:

The alteration of the monitoring pipe here was execrable and constituted a clear violation of the conditions of the permit. But to conclude that the alteration constituted the operation of a new facility without a permit is a bald fiction we cannot endorse. . . . We agree with the Commonwealth Court that the statutory language here cannot be stretched to include criminal activities which clearly fall under another statutory section or subsection. The Commonwealth ...


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