NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________

No. 20-1364 __________

STANLEY F. FROMPOVICZ, JR., Appellant

v.

DAVID HISSNER; LISA DANIELS; DAWN HISSNER; LYNNE SHEETZ; ROD NESMITH; JEFFREY ALGYER; DAVID MITTNER; PETER MANGAK; TODD OSTIR; BRIAN YAGIELLO; BRIAN BUSHER; JASON MINNICH; JOSHUA KRAMMES; PADEP DOES 1-10; LYDIA JOHNSON; GARY LANDIAK; JUDITH MILLER, PADOA DOES 1-10; CHAD A. REISCH __________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court Civil No. 5-17-cv-02790) District Judge: Honorable Joseph F. Leeson, Jr.

Submitted Under Third Circuit L.A.R. 34.1(a) October 23, 2020

BEFORE: CHAGARES, GREENAWAY, JR., and NYGAARD, Circuit Judges

(Filed: January 21, 2021) __________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. NYGAARD, Circuit Judge.

Stanley Frompovicz, Jr. sold water from his property, subject generally to the

provisions of the Pennsylvania Safe Drinking Water Act (

-

721.17) and the specific monitoring requirements in the regulations, 25 Pa Code §§

109.1001-109.1009. In June 2015, water from his “Far Away Auburn” property tested

positive for E. coli and coliform. Frompovicz’s response to this problem did not comply

with the regulations and so the Commonwealth’s Department of Environmental

Protection issued a Field Order on June 18, 2015.1 Frompovicz alleges that DEP’s

subsequent actions, and the conduct of a host of Commonwealth employees,2 infringed

his rights to substantive due process; violated procedural due process, equal protection,

and the Takings Clause; and constituted retaliation and conspiracy under

. Frompovicz appeals the District Court’s denial of his motion for partial summary

judgment and its grant of summary judgment in favor of Appellees, arguing the analysis

ignored his arguments and parts of the record. We will affirm.3

Presuming that Frompovicz’s use of a state-issued permit to sell water from his

property is the fundamental constitutionally protected interest at stake, the cross motions

for summary judgment on the claim of a substantive due process violation turn on the

1 The District Court dismissed any claims that were based on conduct by Appellees alleged to have occurred prior to June 19, 2015. See Frompovicz v. Pa. Dep’t of Env’t Prot.,

, at *3 (E.D.Pa. 2018). 2 David Hissner, Lisa Daniels, Dawn Hissner, Lynne Scheetz, Rod Nesmith, Jeffrey Algyer, David Mittner, Peter Mangak, Todd Ostir, Brian Yagiello, Brian Busher, Jason Minnich, Joshua Krammes, Chad A. Resich, John Does #1-10 of DEP, Lydia Johnson, Gary Landiak, Judith Miller, and Department of Agriculture John Does #1 -10. 3 We have jurisdiction under

. Our review is plenary. 2 existence or absence of evidence that Appellees deprived him of this protected interest in

a manner that shocks the conscience. See Chainey v. Street,

(3d Cir.

2008). Although it is always fact-specific, deprivation that shocks the conscience refers

to ‘“only the most egregious official conduct,’” an abuse of authority such as “corruption,

self-dealing, [or] bias against an ethnic group.”

at 219-20 (quoting United Artists

Theatre Circuit, Inc. v. Twp. of Warrington, Pa.,

(3d Cir. 2003)).

The Commonwealth’s Field Order addressed, in part, Frompovicz’s “failure to

re[s]pond to an acute violation/situation,” (J.A. 263) specifying that Frompovicz must

“immediately cease hauling water from Spring 001 ” (the site with the contaminated

water) and that he “continue to refrain from hauling water from Spring 001 for any

human consumptive purposes” until he received confirmation from DEP that shipments

of water may resume. J.A. 264-65. There is no factual dispute that multiple samples

tested positive for E. coli and that DEP is requiring Frompovicz to take particular action

(i.e. ensuring water drawn from this site undergoes treatment equivalent to 4-Log

inactivation, or developing a Surface Water Inspection Protocol) to obtain the needed

confirmation to resume operations. He has not complied.

The focal point of his claim is DEP’s refusal to give confirmation to allow

operations to resume. Frompovicz prevaricates on the need for him to do anything

further. He also makes a variety of unsubstantiated statements in his brief to explain why

such remediation has not occurred, ranging from delegation (asserting DEP ignored his

customer’s 4-Log capabilities—a claim refuted by evidence) to dubiety (alleging

confusion because of poor guidance and communication from DEP on necessary next

3 steps). But even if he had raised something specific that approached egregious

misconduct by Appellees, bald assertions are insufficient to support his motion, or

survive Appellees’ motion at summary judgment. Our review of the record before the

District Court did not identify any material evidence of anything close to conscience-

shocking conduct in Appellees’ dealings with him, particularly in light of the public

health issue at stake. For this reason, we conclude that the District Court did not err by

denying Frompovicz’s motion for partial summary judgment and granting summary

judgment in favor of Appellees.

Frompovicz’s procedural due process claim fairs no better. The Field Order given

to Frompovicz on June 18, 2015 contained a plainly visible notice of his right to appeal

“within 30 days of receipt of written notice of this action.” J.A. 265. He did not appeal.

In his brief to this Court Frompovicz asserts without evidence that he was compliant with

DEP’s requirements and claims without evidence that Appellees misled him about his

need to appeal. None of this impairs the validity of the notice he received, nor the

process he failed to engage. The notice and his failure to respond to it are fatal to his

procedural due process claim. As a result, the District Court properly granted summary

judgment in favor of Appellees.

Without a viable due process claim, Frompovicz lacks any basis for asserting a

conspiracy to deny him due process. Unsupported averments in his appellate brief that

DEP conspired with competitors to harm him do nothing to save this claim. The District

Court did not err by granting Appellees’ summary judgment on the conspiracy claim.

4 The Takings Clause cause of action is predicated on Frompovicz’s contention that

DEP’s imposition and enforcement of the Field Order deprives him of economic benefit

from the use of his property. As noted above, the order prohibits hauling water from the

Far Away Auburn site until DEP confirms that “usage may resume.” J.A. 265. DEP’s

confirmation hinges on him addressing the contamination problem with proper corrective

action. The District Court rightly concluded that Appellees’ withholding of the necessary

confirmation is consistent with the Commonwealth’s police power under the SDWA.

Appellees acted to curtail a noxious use of the property to protect public health. See

Nat’l Amusements Inc. v. Borough of Palmyra,

(3d Cir. 2013). And

further, it correctly observed that Frompovicz has a pathway to resume operations at Far

Away Auburn by satisfying DEP’s requirements to resolve this public health problem.

This is not a permanent condition. All of this vitiates any regulatory taking claim. The

District Court did not err by denying Frompovicz’s motion for partial summary judgment

and granting summary judgment in favor of Appellees.

Woven throughout all of Frompovicz’s claims is an allegation that Appellees

treated competitors more favorably. An equal protection class-of-one claim requires

evidence that Appellees intentionally treated a similarly situated party different from

Frompovicz, and that this disparate treatment lacked a rational basis. “Similarly situated”

means “alike ‘in all relevant aspects.’” Startzell v. City of Philadelphia, Pa,

(3d Cir. 2008) (quoting Nordlinger v. Hahn,

(1992)).

Frompovicz makes numerous unsupported averments in his brief about his competitors

that appear to stretch far into the past. But after reviewing the entire record for facts that

5 could support this claim,4 we did not identify any evidence to reasonably infer that

Appellees treated a similarly situated party—i.e., a competitor who failed to take required

responsive action after samples from one site test positive for E. coli—in a materially

different way. Moreover, in general, Frompovicz does not raise any evidence to

reasonably infer that Appellees acted arbitrarily towards him. The District Court did not

err.

As for retaliation, we could not identify any evidence showing that Frompovicz

engaged in relevant “constitutionally protected conduct” from which retaliation by

Appellees could be claimed. Conard v. Pa. State Police,

(3d Cir.

2018). Because of this we conclude the District Court did not err by granting summary

judgment here.

Finally, to the extent that Frompovicz appeals the District Court’s summary

judgment on claims against Appellees in their individual and official capacities, we

already have concluded that the record does not provide evidence of any constitutional

injury. Without it these claims properly failed.

For all of these reasons, we will affirm the order of the District Court.

4 See supra note 1. 6