Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-1998

Phila Federation v. Ridge
Precedential or Non-Precedential:

Docket 97-1553,97-1589




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Recommended Citation
"Phila Federation v. Ridge" (1998). 1998 Decisions. Paper 176.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/176


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Filed July 30, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 97-1553 and 97-1589

PHILADELPHIA FEDERATION OF TEACHERS, AMERICAN
FEDERATION OF TEACHERS, LOCAL 3, AFL-CIO; LOCAL
22, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
AFL-CIO; DISTRICT COUNCIL 47, AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO,

       Appellants No. 97-1553

v.

THOMAS J. RIDGE, in his official capacity as the
Governor of the Commonwealth of Pennsylvania; JOHNNY
BUTLER, in his official capacity as Secretary of Labor and
Industry of the Commonwealth of Pennsylvania; RICHARD
A. HIMLER, in his official capacity as Director of the
Bureau of Workers' Compensation

PHILADELPHIA FEDERATION OF TEACHERS, AMERICAN
FEDERATION OF TEACHERS, LOCAL 3, AFL-CIO; LOCAL
22, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
AFL-CIO; DISTRICT COUNCIL 47, AMERICAN
FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO

v.

THOMAS J. RIDGE, in his official capacity as the
Governor of the Commonwealth of Pennsylvania; JOHNNY
BUTLER, in his official capacity as Secretary of Labor and
Industry of the Commonwealth of Pennsylvania; RICHARD
A. HIMLER, in his official capacity as Director of the
Bureau of Workers' Compensation
       Thomas J. Ridge, Governor of the Commonwealth
       of Pennsylvania; Johnny J. Butler, Secretary of
       Labor and Industry of the Commonwealth of
       Pennsylvania; and Richard A. Himler, Director of
       the Bureau of Workers' Compensation of the
       Commonwealth of Pennsylvania,

       Appellants No. 97-1589

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil No. 96-cv-008051)

Argued: March 20, 1998

Before: BECKER, Chief Judge, RENDELL and
HEANEY,* Circuit Judges

(Filed July 30, 1998)

       Deborah R. Willig
       Ralph J. Teti
       Catherine M. Reisman (Argued)
       Willig, Williamson & Davidson
       1845 Walnut Street, 24th Floor
       Philadelphia, PA 19103

       Attorneys for Appellants/
       Cross-Appellees

       Paul F. Tufano
       Roger E. Grimaldi (Argued)
       Anthony S. Potter
       Office of General Counsel
       333 Market Street, 17th Floor
       Harrisburg, PA 17101-2210

       Attorneys for Appellees/
       Cross-Appellants
_________________________________________________________________

*Honorable Gerald W. Heaney, United States Circuit Judge for the
Eighth Circuit, sitting by designation.

                                2
OPINION OF THE COURT

BECKER, Chief Judge

On June 24, 1996, Pennsylvania Governor Tom Ridge
signed into law the Act of June 24, 1996, P.L. 350, No. 57
("Act 57"), which substantially reformed Pennsylvania's
system of workers' compensation. On December 4, 1996,
the plaintiffs, three unincorporated labor organizations --
the Philadelphia Federation of Teachers, Local 3, AFL-CIO;
Local 22 of the International Association of Firefighters,
AFL-CIO; and District Council 47 of the American
Federation of State, County, and Municipal Employees,
AFL-CIO (collectively "plaintiffs") -- filed this action against
the Governor; Johnny J. Butler, Secretary of Labor and
Industry; and Richard A. Himler, Director of the Bureau of
Workers' Compensation, in their official capacities, seeking
a declaration that Sections 204(a) and 306(a.2) of the
Pennsylvania Worker's Compensation Act, Act of June 2,
1915, P.L. 736 ("WCA"), as amended by Act 57, violate the
United States and Pennsylvania constitutions. The plaintiffs
also sought an injunction permanently enjoining the
defendants from enforcing these sections. They rely upon
42 U.S.C. S 1983.

The defendants moved to dismiss plaintiffs' complaint for
lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1),
and for failure to state a claim upon which relief could be
granted, Fed. R. Civ. P. 12(b)(6). With regard to their Rule
12(b)(1) motion, the defendants argued that the district
court lacked jurisdiction because: (1) the matter is not ripe
for judicial review; (2) plaintiffs lack standing to pursue
their claims; and (3) plaintiffs' claims are barred by the
Eleventh Amendment of the United States Constitution. The
district court granted the Motion to Dismiss, basing its
holding on the conclusion that plaintiffs' claims were not
ripe and, therefore, did not present a justiciable
controversy. The court rejected defendants' argument that
plaintiffs' complaint is barred by the Eleventh Amendment,
and declined to address whether plaintiffs had standing or
whether they had stated proper claims for relief.

                               3
Plaintiffs filed a timely appeal, contending that the
district court erred in holding that their claims were not
ripe. Defendants cross-appealed, seeking review of the
district court's refusal to dismiss plaintiffs' complaint based
upon the Eleventh Amendment's jurisdictional bar. We have
jurisdiction under 28 U.S.C. S 1291 and exercise plenary
review over the district court's order dismissing plaintiffs'
complaint for lack of subject matter jurisdiction. See
Armstrong World Indus., Inc. v. Adams, 

, 410
(3d Cir. 1992). We affirm on the ground that the dispute is
not justiciable because plaintiffs have failed to demonstrate
a controversy ripe for resolution by the federal courts. We
therefore decline to reach the issues raised by the cross-
appeal.

I. THE CHALLENGED PROVISIONS

A. The Impairment Rating (Procedural Due Process Claim)

Section 4 of Act 57 amended Section 306 of the WCA to
add section 306(a.2), 77 P.S. S 511.2 (West Supp. 1997),
permitting employers to require an employee to submit to
an impairment rating evaluation after the employee receives
total disability benefits for 104 weeks. See 77 P.S.
S 511.2(1). Pursuant to section 511.2, an impairment rating
evaluation is performed by a licensed physician chosen by
the parties or appointed by the Department of Labor and
Industry (the "Department"). See 

of the
evaluation is to determine the level of the employee's
impairment rating. If the employee's impairment rating is
fifty percent or greater under the American Medical
Association's Guide to the Evaluation of Permanent
Impairment, he or she remains classified as "totally
disabled." See S 511.2(2). If, however, the examination
results in an impairment rating that is less thanfifty
percent, the employee is reclassified as "partially disabled."
See 

in status from "totally disabled" to "partially
disabled" does not automatically affect the amount of
compensation that the insurer must pay the employee.
Rather, the Act provides that "[u]nless otherwise
adjudicated or agreed to based upon a determination of

                                4
earning power under [S 512(2)], the amount of
compensation shall not be affected as a result of the change
in disability status and shall remain the same." See
S 511.2(3). The change in status does, however, affect the
length of time that a claimant may receive workers'
compensation benefits. An employee who is classified as
"totally disabled" is entitled to collect benefits for as long as
he or she remains classified as such. An employee with a
partial disability, however, is eligible to receive benefits only
for a period of 500 weeks, or approximately ten years. See
S 511.2(7).

Before changing an employee's disability status, an
employer must provide the employee with sixty days notice
that his or her impairment rating evaluation showed that
the employee was less than fifty percent impaired. See
S 511.2(2). The Act also provides that "[a]n employee may
appeal the change to partial disability at any time during
the five hundred-week period of disability; Provided, That
there is a determination that the employee meets the
threshold impairment rating that is equal to or greater than
fifty percentum impairment . . .." S 511.2(4).

Plaintiffs seek a declaration that, on its face, WCA
S 306(a.2), 77 P.S. S 511.2, violates the due process clauses
of the United States and Pennsylvania constitutions, U.S.
Const. amend. XIV; Pa. Const., art. 1, S 1. Although the Act
provides employees whose status is changed to partially
disabled the right to appeal their change in status, see 77
P.S. S 511.2(4), plaintiffs maintain that the procedures that
will ultimately be employed by the Department during this
"appeal process" will deprive their members of the right to
procedural due process of law. Plaintiffs rest this claim on
the fact that the term "appeal" is not defined in the statute
and that, typically, an appeal to the Worker's
Compensation Board, as opposed to a hearing, does not
involve a fact-finding procedure and de novo adjudication.
Plaintiffs further allege that the Act is rendered facially
unconstitutional by the fact that the appeal process
contained in S 511.2(4) is only available following a
determination that the employee is equal to or greater than
fifty percent impaired. 77 P.S. S 511.2(4). Plaintiffs also
seek to enjoin enforcement of the statute.

                               5
B. The Pension Offset (Contracts Clause Claim)

Section 3 of Act 57 amended Section 204(a) of the WCA
to provide that benefits from a pension plan -- to the extent
funded by the employer directly liable for the payment of
wage replacement compensation received by a claimant--
shall be credited against the amount of the award to the
claimant for wage replacement benefits based on injury or
occupational disease.1 See 77 P.S. S 71(a) (West Supp.
1997). The plaintiffs contend that the offset for pension
benefits violates the contracts clause of both the United
States and Pennsylvania constitutions, U.S. Const. art. I,
S 10, cl. 1; Pa. Const. art I, S 17, by unilaterally diminishing
the contractual pension rights of public sector employees
by reducing the value of their pension benefits. Again,
plaintiffs seek declaratory relief and an injunction.

II. RIPENESS

"The existence of a case and controversy is a prerequisite
to all federal actions, including those for declaratory or
injunctive relief." Presbytery of New Jersey of Orthodox
Presbyterian Church v. Florio, 

, 1462 (3d Cir.
1994). One aspect of justiciability is ripeness which
"determines when a proper party may bring an action."2
Travelers Ins. Co. v. Obusek, 

, 1154 (3d Cir.
1995) (quoting 

). The function of
the ripeness doctrine is to prevent federal courts,"through
avoidance of premature adjudication, from entangling
themselves in abstract disagreements." Abbott Labs v.
_________________________________________________________________

1. Prior to the enactment of section 3 of Act 57, the Act allowed
employers to offset the amount of workers' compensation benefits
payable by the amount of unemployment compensation benefits paid to
the claimant. See 77 P.S. S 71 (West 1992). Act 57 continues to allow
employers to offset workers' compensation benefits by unemployment
benefits, but it also permits employers to offset Social Security
benefits,
severance benefits, and pension benefits. See 77 P.S. S 71(a) (West Supp.
1997).

2. As noted above, the district court declined to address defendants'
challenge to plaintiffs' standing. We too will not address this question,
and assume for the purposes of this discussion that plaintiffs have
standing.

                               6
Gardner, 

, 148 (1967), overruled on other
grounds, Califano v. Sanders, 

, 105 (1977).3
Further, "[w]e presume that federal courts lack jurisdiction
unless the contrary appears affirmatively from the record."
Renne v. Geary, 

, 316 (1991) (internal
quotations marks and citations omitted). It is the plaintiffs'
responsibility to clearly allege facts that invoke the court's
jurisdiction. See 

Labs, the Supreme Court established a two-
part test for determining whether a prayer for a declaratory
judgment is ripe. A court should look to (1) "thefitness of
the issues for judicial decision," and (2) "the hardship to
the parties of withholding court 

; Texas v. United States, 

, 1260 (Mar.
31, 1998).4 Under the "fitness for review" inquiry, a court
considers whether the issues presented are purely legal, as
_________________________________________________________________

3. In this respect, the ripeness doctrine is closely related to the case
or
controversy requirement of Article III of the United States Constitution.
See United States ex rel. Ricketts v. Lightcap, 

, 1231 & n.6
(3d Cir. 1977). Just how closely related, however, is not entirely clear.
As
we have previously noted:

       There is some disagreement among courts and commentators as to
       whether the ripeness doctrine is grounded in the case or
controversy
       requirement or is better characterized as a prudential limitation
on
       federal jurisdiction. . . . But regardless whether the ripeness
       doctrine has a prudential component, it seems clear that it is at
       least partially grounded in the case or controversy requirement.

See Armstrong World Indus., Inc. v. Adams, 

, 411 n.12 (3d
Cir. 1992) (citations omitted).

Thus, while we believe that an argument can be made that plaintiffs'
claims do not present the type of case or controversy to which federal
courts are limited, we need not pursue this inquiry separately, since it
is subsumed within our ripeness analysis.

4. In Step-Saver Data Sys., Inc. v. Wyse Technology, 

(3d
Cir. 1990), we offered a three-part inquiry as a refinement of the
Supreme Court's test. Our inquiry focuses on: (1) the adversity of the
parties' interests; (2) the conclusiveness of the judgment; and (3) the
utility of the 

. Our refinement simply alters
the headings under which various factors are grouped, and since Step-
Saver, we have employed both tests. Compare Artway v. Attorney General
of N.J., 

, 1247 (3d Cir. 1996) (two-part test), and New
Hanover Tp. v. United States, 

, 472 (3d Cir. 1993) (same)
with 

(three-part test), and Travelers 

(same). We apply the Supreme Court's two-part test
because we find that its framework better accommodates our analysis in
this case.

                               7
opposed to factual, and the degree to which the challenged
action is final. The various factors that enter into a court's
assessment of fitness include: whether the claim involves
uncertain and contingent events that may not occur as
anticipated or at all; the extent to which a claim is bound
up in the facts; and whether the parties to the action are
sufficiently adverse. See Riva v. Massachusetts, 

, 1009-10 (1st Cir. 1995).

The second prong focuses on the hardship that may be
entailed in denying judicial review, and the determination
whether any such hardship is cognizable turns on whether
the challenged action creates a "direct and immediate"
dilemma for the parties, such that the lack of pre-
enforcement review will put the plaintiffs to costly choices.
See Abbott 

; W.R. Grace & Co. v. EPA,

, 364 (1st Cir. 1992).

A. The Impairment Rating (Procedural Due Proce ss Claim)

Plaintiffs allege that WCA S 304(a.2) is unconstitutional
because it does not, on its face, afford their members a
meaningful opportunity to be heard regarding the change in
their disability status from "totally" to "partially" disabled.
Since this change in status will lead directly to the
termination of benefits after a 500 week period, plaintiffs
allege that, by action of the statute, their members will be
deprived of their property (i.e. the compensation benefits)
without due process of law.5 The district court concluded
_________________________________________________________________

5. As noted above, this assertion rests on plaintiffs' interpretation of
the
appeal process provided in section 304(a.2)(4), 77 P.S. S 512.2(4), which
they contend does not provide for a de novo hearing reviewing the
change in disability status. Plaintiffs' interpretation is undermined by
the
regulations promulgated by the Pennsylvania Department of Labor and
Industry interpreting Act 57 which became effective on January 17,
1998, after the district court had issued its order. The section of the
regulations which implements the appeal provision of section 306(a.2),
provides that:

       At any time during the receipt of 500 weeks of partial disability
       compensation, the employe may appeal the adjustment of benefit
       status to a workers' compensation judge by filing a Petition for
       Review.

                               8
that review of plaintiffs' claim was premature because, as a
result of various contingencies, the court could not be
certain that the statute would necessarily operate against
any of the unions' members.6

We are inclined to disagree with the district court that
there is uncertainty regarding whether the statute will ever
operate against any of the plaintiffs' members; rather, we
find persuasive plaintiffs' argument that such an
eventuality is almost certain. There is, however, a great deal
of uncertainty regarding how the statute will operate
against plaintiffs' members. It is this uncertainty that
renders the claim unfit for judicial review. Plaintiffs ask the
_________________________________________________________________

34 Pa. Code S 123.105(f). Under the WCA, an employee filing a petition
for review is entitled to a prompt hearing. See 77 P.S. S 710 (West 1992).
The workers' compensation judge assigned to the case is charged with
holding a full evidentiary hearing, making findings of fact, conclusions
of
law, and ultimately determining whether a change in disability status
was in accordance with the terms of section 306(a.2). See 77 P.S. S 833,
834 (West 1992 & West Supp. 1997). Further, any party aggrieved by a
workers' compensation judge's ruling has a right to appeal to the
Workers' Compensation Appeal Board. See 77 P.S. S 853. A party
aggrieved by the Appeal Board's decision has a right to appeal to the
Commonwealth Court of Pennsylvania, see 42 P.S. S 763, and a party
aggrieved by that decision has the right to seek permission to appeal to
the Supreme Court of Pennsylvania, see 42 P.S. S 724.

6. The contingencies relied upon by the district were that, in order for
plaintiffs' members to be subject to the provisions of Section 306(a.2):
(1)
one of the members must suffer a compensable work-related injury after
the effective date of Act 57, (2) the same member must be classified as
totally disabled, (3) such total disability must continue for a period of
104 weeks and not be changed because of the insurer's successful
demonstration of earning power, (4) after the member's receipt of 104
weeks of total disability benefits, the insurer must request that the
member submit to an impairment rating evaluation, (5) the evaluation
must result in an impairment rating of less than 50% under the
American Medical Association's Guides to the Evaluation of Permanent
Impairment, (6) the insurer must adjust the disability status of the
member from total to partial, and (7) the member must, over a period of
500 weeks, be unable to demonstrate that the impairment is greater
than 50%. See Philadelphia Fed. of Teachers v. Ridge, 

,
at * 7 (E.D. Pa. June 20, 1997).

                               9
court to declare constitutionally deficient procedures that
have yet to be applied. Such a judgment would be
premature. Rather, we believe that review of plaintiffs'
procedural due process claim must be done in the context
of a specific factual setting.

Our conclusion is buttressed by Judge Calabresi's recent
decision in Thomas v. City of New York, ___ F.3d ___, 

(2d Cir. Apr. 28, 1998). There, the court
considered, inter alia, a due process challenge to the
procedures set forth in a new local law governing the
licensing procedures for livery cab base stations. The court
concluded that this claim was not ripe for judicial review
since

       None of the plaintiffs has, to date, been denied a
       license. And, while on the face of [the new law] and its
       regulations, no proceedings -- either written findings
       or oral hearings -- are mandated prior to the denial of
       licenses or of license renewals, we do not know at this
       time what procedures [the agency] will in fact follow
       before denying licenses. It follows that a claim that a
       base station operator has been denied a license
       renewal without procedural due process is best
       considered in the context of a specific factual setting.

, at * 2; see also Texas v. United 

("Here, as is often true,`[d]etermination
of the scope of . . . legislation in advance of its immediate
adverse effect in the context of a concrete case involves too
remote and abstract an inquiry for the proper exercise of
the judicial function.' " (quoting Longshoremen v. Boyd, 

, 224 (1954)).

We might still review plaintiffs' procedural due process
claim despite our conclusion that it is best considered in
the context of a specific factual setting if denial of pre-
enforcement review would work a significant hardship to
the plaintiffs.7 In this case, however, we discern no
_________________________________________________________________

7. Whether ripeness requires that both parts of the test be satisfied is a
matter of some uncertainty. See Ernst & Young v. Depositors Econ.
Protection Corp., 

, 535 (1st Cir. 1995) ("The relationship
between [the] two parts of the test -- fitness and hardship -- has never

                               10
hardship that will result from withholding review of the
constitutionality of WCA S 304(a.2) until a court is able to
review the procedures actually employed by the
Department. Even assuming that an employee is deprived
of his or her due process rights in the future by those
procedures, the change in disability status will not affect
the level of benefits provided to the employee for five
hundred weeks. See 77 P.S. S 512.2 (7). The employee will,
therefore, have ample time to challenge the constitutionality
of the procedures employed before being deprived of any
benefits.

B. The Pension Offset (Contract Clause Claims)

Plaintiffs allege that section 204(a) of the WCA, on its
face, violates the contract clauses of both the United States
and Pennsylvania constitutions. This claim, which is
predominately legal, is arguably fit for review. However,
even "the presence of `a purely legal question' is not
enough, of itself, to render a case ripe for judicial review,
not even as to that issue." 

(quoting Office of Communications of the United Church of
Christ v. FCC, 

, 105 (D.C. Cir. 1987)). Rather,
the plaintiffs must still demonstrate that they face a real
and immediate threat of injury from the denial of pre-
enforcement review of the merits. See 

In the
absence of such hardship, the better course is for a federal
court to wait until the claim is raised in a specific factual
setting since this will almost universally aid in review. As
Judge Easterbrook recently opined in a not dissimilar
situation: "if anticipatory review is not essential to avoid
hardship, then courts should defer review, in order to
obtain the benefits of the more focused presentation made
possible by a concrete application of the rules." Illinois
Council on Long Term Care, Inc. v. Shalala, ___ F.3d ___,
_________________________________________________________________

been precisely defined."). The majority view is that both prongs of the
test must ordinarily be satisfied in order to establish ripeness, with the
caveat that there exists "the possibility that there may be some sort of
sliding scale under which, say, a very powerful exhibition of immediate
hardship might compensate for questionable fitness. . . or vice versa."
See 

We need not consider the issue here.

                               11


, * 6 (7th Cir. May 8, 1998) (citing Texas
v. United 

.)

In the instant case, even applying the usual standards
for construing the allegations of a complaint which give the
plaintiff the benefit of all favorable inferences, plaintiffs
have failed to meet their burden of alleging facts sufficient
to demonstrate a threat of direct and immediate hardship
stemming from the lack of pre-enforcement review. Rather,
plaintiffs simply aver, in conclusory terms, that "[a]s a
result of the passage of Section 3 of Act 57, the Plaintiffs'
members are suffering immediate and/or threatened injury
. . . ." (Compl. PP 46, 54). Plaintiffs do not, however, allege
any facts that support this legal conclusion by
demonstrating the actual and immediate harm they or their
members suffer from Section 204(a) of the WCA.

Plaintiffs, in their briefing, do assert a direct and
immediate harm to their members. There, plaintiffs contend
that section 204(a) creates an uncertainty regarding their
members' future income streams since their members
cannot be sure that they will receive full pension benefits
and full workers' compensation benefits if they have the
misfortune of being injured on the job. The argument that
this uncertainty constitutes a cognizable harm for purposes
of ripeness analysis is based on the Court of Appeals'
decision in Riva v. Massachusetts, 

(1st Cir.
1995). Riva involved a claim that the Massachusetts
accidental disability retirement scheme violated the Age
Discrimination in Employment Act. The challenged portion
of the statute provided that disability benefits would be
reduced at age sixty-five for retired public employees with
less than ten years creditable service who were overfifty-
five at the time of their accidental disability retirement. The
court found that the statute was ripe for review even
though it would not directly affect the plaintiff for several
years. The plaintiff, Robert Keenan, had already been
declared permanently disabled at the age of fifty-six and
had received notice that his benefits would be reduced
when he turned age sixty-five by operation of the
challenged statute. In applying the Abbott Labs framework,
the court found that the hardship prong was satisfied
because the uncertainty about the validity of the statute

                               12
made it impossible for Keenan, then age fifty-eight,
"prudently to arrange his fiscal affairs" in anticipation of his
retirement 

.

We believe that Riva is distinguishable from the instant
case. The Riva court had before it a plaintiff who had
already been declared permanently disabled and who would
be adversely affected by the statute at the time when he
turned sixty-five unless the statute was repealed or
amended, or unless he 

. Here, we
have no such plaintiff, and thus no one has suffered as
"direct and immediate" an injury as Keenan. Moreover, Riva
involved much less hardship then was present in Abbott
Labs, where the regulation at issue had a "direct effect on
the day-to-day business" of the plaintiffs, who were
compelled to affix required labeling to their products under
threat of criminal sanction. 

. We are not
convinced, therefore, that the finding of hardship in Riva is
supportable. However, even if it is, the hardship asserted in
this case is one step removed even from Riva, and that step
is one that we decline to take.

Thus, we conclude that review of the constitutionality of
Section 204(a) by a federal court, like review of Section
306(a.2), should be reserved until such time as the court is
presented with a concrete factual situation. We note, also,
that that day is likely not too far off. As of June 24, 1998,
it has been 104 weeks since the effective date of Act 57 and
thus presumably some employee has appealed (or soon will
appeal) a change in his or her disability status, thus
triggering the review process set forth in 77 P.S.S 511.2
and the applicable regulations. We also assume that the
pension offset provision has been, or soon will be, utilized.

The order of the district court, dismissing without
prejudice plaintiffs' complaint on the ground that it did not
present a controversy ripe for resolution, will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13