text:
    David E. ELLIS, et al., Plaintiffs, v. Joseph O’HARA, et al., Defendants.
    No. 84-690C(1).
    United States District Court, E.D. Missouri, E.D.
    July 5, 1985.
    Arnold T. Phillips, Jr., St. Louis, Mo., for plaintiffs.
    William D. Kimme, Washington, Mo., William E. Cornwell, Nancie D. Algur and Margaret Keate, Jefferson City, Mo., Denis C. Burns, Brent W. Baldwin, David A. Koester, St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This matter is now before the Court on the motion of plaintiffs for summary judgment. Plaintiffs asked the Court to declare the Missouri compulsory education statute, § 167.031 R.S.Mo. (1978) void for vagueness and overbreadth.

Plaintiffs include the parents and children of two families and an organization known as Families For Home Education (FHE). The parents are Christians who removed their children from public schools in order to pursue a course of home instruction. The parents’ decision to educate their children at home stems from their belief that public education promotes teachings, ideas and values which are contrary to their religious convictions. They thus turned to home education as a means of instilling their own religious values and beliefs into their children. As a result of their actions, local school districts and various state and juvenile officials have investigated plaintiff families and have instigated proceedings against the parents for educational neglect. The ultimate sanction which the state may impose upon the parents for educational neglect is the removal of the children from their households. Plaintiffs object not only to the authority of state officials to remove children from homes, but to the investigations conducted into the instructions and currículums offered by the parents, as well.

The plaintiffs have challenged the constitutionality of the Missouri compulsory education statute, which provides in part:

Every parent, guardian or other person in this state having charge, control or custody of a child between the ages of seven and sixteen years shall cause the child to attend regularly some day school, public, private, parochial or parish, not less than the entire school term of the school which the child attends or shall provide the child at home with regular daily instructions during the usual school hours which shall, in the judgment of a court of competent jurisdiction, be at least substantially equivalent to the instruction given children of like age in the day schools in the locality in which the child resides.

§ 167.031 R.S.Mo. (1978). Plaintiffs complain that the statute unnecessarily impinges upon their first amendment rights to direct the educational upbringing of their children and to enjoy the free exercise of their religious beliefs. They further contend that the statute leaves them vunerable to prosecution without the benefit of adequate guidelines for their actions. Plaintiffs have attacked the statute on its face, and thus assert that their claims are ripe for summary judgment.

Vagueness

Plaintiffs maintain that § 167.031 is unconstitutionally vague because of its use of the terms “substantially equivalent” to describe the level of instruction required for children educated at home. Neither regulations nor guidelines have been promulgated to assist in the interpretation of this language. Plaintiff parents argue that they are subject to criminal prosecution with insufficient direction as to what is demanded of them. They further contend that the enforcement of the statute is left to the pure discretion of local school districts and other enforcement officials. Plaintiffs wrote to a number of local school districts charged with the task of investigating alleged cases of educational neglect under § 167.031. See § 210.167 R.S.Mo. (1984). The school districts uniformly indicated that the Missouri Department of Elementary and Secondary Education has not issued guidelines which clarify the meaning of substantially equivalent instruction. Nor have the Missouri courts shed light upon the meaning of these terms as employed in the statute.

A statute is unconstitutionally vague when it commands or proscribes conduct in terms so vague that persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See also Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967). The vagueness doctrine also applies to statutes which lack minimal guidelines for their enforcement. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 309 (1983); Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). The absence of sufficient guidelines allows law enforcement officials, prosecutors and judges to “pursue their personal predilections.” Smith v. Goguen, 415 U.S. at 575, 94 S.Ct. at 1248. In addition, federal courts are bound by clarifying interpretations given to statutes by state courts which remove constitutional infirmities. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972); Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). A more stringent vagueness test applies to statutes which affect the exercise of constitutionally protected rights and to statutes which carry criminal penalties. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); Grayned v. City of Rockford 408 U.S. at 109, 92 S.Ct. at 2299.

In applying these principles, this challenge to the Missouri compulsory education statute on vagueness grounds commands a stringent scrutiny by this Court because the constitutional right of parents to direct the upbringing of their children and to inculcate religious and educational values in their offspring is implicated. Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). In addition, although holding that the statute does not carry criminal penalties, a Missouri court conceded that the statute does affect the constitutional interests just described. In re Monnig, 638 S.W.2d 782, 788 (Mo.App.1982). In view of the fundamental interests implicated by the statute, this Court concludes that § 167.031 is unconstitutionally vague.

Under the Missouri scheme of legislation, cases of suspected educational neglect in the home school context are turned over to the appropriate local school district for investigation. Following the investigation, the school district has discretion to transfer responsibility of the case to the prosecutor. § 210.167 R.S.Mo. (1984). The local school district is thus initially charged with ensuring that parents comport with the requirements of § 167.031, and that children educated at home receive a substantially equivalent education to the day schools in the particular locality. Nowhere is substantially equivalent defined, however, or are regulations promulgated which clarify its meaning. Nor have the Missouri courts furnished edification regarding the meaning of the statute. In this respect, the statute subjects the exercise of a fundamental right to an unascertainable standard. Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). The parents have not been equipped with an adequate definition of substantially equivalent to inform them of their obligations under the statute. Of even greater significance, however, is that the Legislature has not provided minimal guidelines for law enforcement. Kolender v. Lawson, 461 U.S. at 358, 103 S.Ct. at 1858. This statute represents a prime example of legislation which yields an unacceptable amount of discretion to officials charged with its enforcement. The statute, therefore, does not comply with due process requirements, and is unconstitutionally vague.

Defendants rely heavily upon Bangor Baptist Church v. State of Maine, Department of Education and Cultural Services, 549 F.Supp. 1208 (D.Me.1982), where the court upheld a statute requiring students not attending public schools to receive “equivalent instruction” against a vagueness challenge. The court found that the term “equivalent” was not so vague that persons had to guess its meaning. Id. at 1227. The case is distinguishable from the facts of the instant case, however, because numerous guidelines and regulations were established describing the enforcement of the statute therein. In addition, the Maine education laws are more elaborate than those of Missouri, and describe public school requirements in greater detail than do the Missouri statutes. For these reasons, it is much easier to comprehend the meaning of the term substantially equivalent within the Maine statutory scheme than under the Missouri legislation. Thus, Bangor Baptist Church, is not directly applicable to the instant claims.

The only other authority which specifically scrutinizes the use of the terms “equivalent instruction” in a compulsory education statute is State v. Moorhead, 308 N.W.2d 60 (Iowa 1981). In Moorhead, the state court interpreted the statute and held that equivalent instruction refers to public school instruction. There are detailed requirements for public school instruction which establish reasonable guidelines for deciphering the meaning and enforcing that statute. This Court concludes, however, that the Missouri statute is not so readily comprehensible. For these reasons, the authorities cited by defendants are not persuasive.

Overbreadth

Plaintiffs additionally argue that the statute is overbroad and should be stricken for this reason as well. Plaintiffs describe § 167.031 as being overbroad in that the statute “in all its applications directly restricts protected first amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest.” Maryland v. Joseph H. Munson Co., Inc., - U.S.-, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). In considering plaintiffs’ contention, this Court must essentially determine whether the statute unnecessarily impinges upon plaintiffs’ first amendment right to direct the religious upbringing of their children. See, e.g., New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 3363, 73 L.Ed.2d 1113 (1982); Village of Schaumburg v. Citzens For A Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). This Court recognizes that plaintiffs have a fundamental first amendment interest at stake in their claim, yet they concede the state has a compelling interest in insuring that children in the state receive an appropriate education. See Wisconsin v. Yoder, 205 U.S. at 213, 92 S.Ct. at 1532; Duro v. District Attorney, Second Judicial District of North Carolina, 712 F.2d 96 (4th Cir.1983), cert. denied, - U.S.-, 104 S.Ct. 998, 79 L.Ed.2d 230 (1984). Because the statute is unconstitutionally vague, this Court need not determine whether it is as narrowly drawn as possible to avoid any unnecessary impingement upon plaintiffs’ constitutional rights. Nor have plaintiffs suggested to the Court or presented evidence on how an education statute may be more closely tailored to accomplish its intended purpose. For these reasons, this Court limits its holding to the vagueness question.

In conclusion, this Court declares that portion of § 167.031 R.S.Mo. (1978), which relates to home education, void for vagueness. There is no alternative statutory provision for home education in Missouri. Plaintiffs have not briefed the issue of whether a state must necessarily provide for home education, however. Therefore, this Court transfers to the Legislature the responsibility of considering plaintiffs’ continuing desire to educate their children at home.

Because the Legislature has expressed a desire to allow parents to educate their children at home, this Court shall stay the effective date of this order until May 15, 1986, which is the final date of the 1986 Missouri Legislative Session. In staying the effective date of this order, parents may continue to educate their children at home in the same manner as they are currently doing, until May 15, 1986, or until the Legislature enacts a new statute, whichever occurs first.


source: Caselaw Access Project

author: BRITT, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Bobby Sherril JERNIGAN, Defendant.
    No. 85-27-02-CR-5.
    United States District Court, E.D. North Carolina, Raleigh Division.
    July 5, 1985.

      Samuel T. Currin, U.S. Atty., Raleigh, N.C., for plaintiff.
    Douglas Kingsbery, Raleigh, N.C., for defendant.
   ORDER

BRITT, Chief Judge.

A three-count indictment returned by the grand jury of this district contains the following charges:

1. FIRST COUNT. That defendant and his co-defendant, Rudolph Condary Baker, possessed with intent to distribute cocaine.

2. SECOND COUNT. That the co-defendant, Rudolph Condary Baker, distributed cocaine.

3. THIRD COUNT. “That on or about the 3rd day of April, 1985, in the Eastern District of North Carolina, BOBBY SHERRILL JERNIGAN, defendant herein, did wilfully and unlawfully carry a firearm, that is, a .22 caliber Bauer automatic pistol, Serial Number 0545695, during his commission of a crime of violence as defined in Title 18, United States Code, Section 16, to wit: possession with intent to distribute controlled substances, in violation of Title 21, United States Code, Section 841(a)(1), in violation of the provisions of Title 18, United States Code, Section 924(c).”

Defendant has moved to dismiss the third count, contending that possession with intent to distribute controlled substances is not a “crime of violence” as that term is used in Title 18, United States Code, § 924(e).

The Comprehensive Crime Control Act of 1984 rewrote Section 924 of Title 18 so that it now provides in subsection (c)

Whoever, during and in relation to any crime of violence, including a crime of violence which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device, for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence, be sentenced to imprisonment for five years____

18 U.S.C. § 924(c) (1984). The purpose of this section is to impose a mandatory penalty without the possibility of probation or parole for defendants who use or carry a firearm during a crime of violence. Id.

Title 18, United States Code, Section 16, also enacted as a part of the Comprehensive Crime Control Act of 1984, defines a crime of violence as follows:

“The term ‘crime of violence’ means—(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

18 U.S.C. § 16 (1984).

Congress clearly set forth its intention on the breadth of the above definition in the legislative history of that section.

The term means an offense—either a felony or a misdemeanor—-that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or any felony that, by its nature, involves the substantial risk that physical force against another person or property may be used in the course of its commission. The former category would include a threatened or attempted simple assault or battery on another person; offenses such as burglary in violation of a State law and the Assimilative Crimes Act would be included in the latter category inasmuch as such an offense would involve the substantial risk of physical force against another person or against the property.

S.Rep. No. 225, 98th Cong., 2d Sess. 307, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3486.

Clearly the predicate offense charged in count one—possession with intent to distribute cocaine—is not one “... that has as an element the use, attempted use or threatened use of physical force against the person or property of another____” Likewise, this court concludes that Congress did not intend to include the possession with intent to distribute cocaine in its definition under subsection (b) as being one which “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The motion to dismiss the third count of the indictment is allowed.


author: ALLEN SHARP, Chief Judge.

text:
    Robert L. HOLLEMAN, Petitioner, v. UNITED STATES of America, Defendant.
    No. S 84-186.
    United States District Court, N.D. Indiana, South Bend Division.
    July 8, 1985.

      Robert L. Holleman, pro se.
    Joseph M. Kalady, Legal Asst., Michigan City, Ind., for petitioner.
    David H. Kreider, Asst. U.S. Atty., South Bend, Ind., for defendant.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2255 by Robert L. Holleman, an inmate at the Indiana State Prison, Michigan City, Indiana. The matter is now before this court on respondent’s Response of United States to Motion under 28 U.S.C. § 2255 and petitioner’s Traverse thereto. Both sides having briefed their respective positions, this matter is ripe for ruling.

The parties agree as to the following facts. On February 4, 1977 Robert L. Holleman was convicted in this court of robbing a federally-insured credit union. He was sentenced to twenty years imprisonment to run consecutively with a state sentence of 10 to 25 years he then was serving. A detainer was issued to his state custodians. The federal conviction was affirmed. United, States v. Holleman, 575 F.2d 139 (7th Cir.1978).

On June 8, 1977, petitioner was convicted in state court of felony murder and was sentenced to life imprisonment. The state conviction was affirmed by the Supreme Court of Indiana. Holleman v. State, 272 Ind. 534, 400 N.E.2d 123 (1980).

Having already been denied a writ of habeas corpus both under 28 U.S.C. § 2254 challenging the state felony murder conviction, Holleman v. Duckworth, 700 F.2d 391 (7th Cir.1983), and under 28 U.S.C. § 2255 challenging the federal robbery conviction, Holleman v. United States, 721 F.2d 1136, (1983), petitioner now files another motion under 28 U.S.C. § 2255 asking (1) that he be given jail time credit from October 25, 1976, the date presumably he was taken into state custody, and (2) that he be resentenced to the custody of the Attorney General, or alternatively, to the Indiana Department of Corrections.

Petitioner’s federal sentence was to run consecutively to the state sentence he was serving at the time of his federal sentencing. That state sentence was vacated on March 24, 1982 and subsequently dismissed. Petitioner is currently serving time in state custody for the felony murder conviction in June of 1977. At the time in question, petitioner was also being detained in state custody in connection with the charges involving felony murder for which he was subsequently convicted. In fact, his second state conviction occurred only a few months after his federal conviction.

The question of who has prior jurisdiction over the person was discussed in Jeter v. Keohane, 739 F.2d 257 (7th Cir.1984) wherein the Court held:

The United States Supreme Court held in Ponzi v. Fessenden, 258 U.S. 254, 262, 42 S.Ct. 309, 311, 66 L.Ed. 607 (1922), that determining whether the federal or state government has prior jurisdiction over the person of an accused rests on principles of comity between the two sovereigns. This ruling has been followed by all federal courts addressing the issue. See Causey v. Civiletti, 621 F.2d 691 (5th Cir.1980); United States v. Warren, 610 F.2d 680 (9th Cir.1980); United States v. Croft, 450 F.2d 1094 (6th Cir.1971); Mitchell v. Boen, 194 F.2d 405 (10th Cir.1952); Vanover v. Cox, 136 F.2d 442 (8th Cir.1943). If there is a dispute over whether an individual should be in custody of either the state or the federal government, that dispute is between the two sovereigns. An individual who has violated the laws of two or more sovereigns may not complain of the order in which he is to serve the various sentences. Mitchell v. Boen, 194 F.2d at 407; Lionel v. Day, 430 F.Supp. 384, 386 (W.D.Okla.1976).

The state exercised proper custody and jurisdiction over the petitioner during the time in question. The state has retained custody and jurisdiction over petitioner since that time for his conviction of felony murder. Petitioner has not yet begun to serve his federal sentence.

The applicable statute here is 18 U.S.C. § 3568, which in relevant part reads:

The sentence of imprisonment oif any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed____
If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.
No sentence shall prescribe any other method of computing the term.

Petitioner’s federal sentence does not commence running until such time as petitioner is released by the State and the United States Marshal assumes custody over him to take him to the place of federal detention. U.S. v. Kanton, 362 F.2d 178, 179 (7th Cir.1966).

Petitioner cites Sancinella v. Henderson, 380 F.Supp. 1393 (N.D.Ga.1974) as authority for his position that the time he spent on the State sentence which was later vacated should be credited toward his federal sentence. In Sancinella the petitioner sought credit for time he had spent incarcerated for the first conspiracy conviction which was later vacated, toward the second sentence he was currently serving. The court easily found that the time petitioner served on his first conviction (which was vacated) was not spent “in connection with” the offenses for which the second sentence was imposed. Id., at 1395. The language from that case which petitioner relies on is as follows:

However, even if the offenses are technically unrelated, credit is allowed on a subsequent sentence for time served on invalid sentence when service of that previous term delayed commencement of the subsequent sentence. Johnson v. Henderson, 455 F.2d 983 (5th Cir.1972); Meadows v. Blackwell, 433 F.2d 1298 (5th Cir.1970); Davis v. Attorney General, 432 F.2d 777 (5th Cir.1970); Watson v. Henderson, 350 F.Supp. 249 (N.D.Ga., 1972). Further, where a person is detained in connection with State charges for which bail is set, and service of a federal sentence is delayed due to the financial inability to post bail, credit will be given on the federal sentence if no credit is received toward the State offense. United States v. Gaines, 449 F.2d 143 (2d Cir.1971).
Id. at 1395.

Petitioner contends that his federal sentence was delayed due to the state sentence which was later vacated. Petitioner has not shown how his federal sentence was delayed since the State exercised proper jurisdiction over his person for the bringing of other State charges against him, for which he was later convicted. Petitioner has further not shown nor alleged that his federal sentence was delayed because he was prevented from posting bail pending the state charges. Further petitioner has not demonstrated that his continued state confinement resulted from the federal detainer, United States v. Blankenship, 733 F.2d 433 (7th Cir.1984), or that he was denied state credit for the time served on his unrelated State sentences for that time period. United States v. Grimes, 641 F.2d 96 (3d Cir.1981). Time served on an unrelated state sentence that has been voided cannot be credited against a federal sentence. Scott v. United States, 434 F.2d 11, 21 (5th Cir.1970); Green v. United States, 334 F.2d 733, 736 (1st Cir.1970); Mize v. United States, 323 F.Supp. 792, 795-5 (N.D.Miss.1971).

Petitioner has failed to show that he has a right to receive credit for the time spent in state custody toward his federal sentence.

Petitioner’s request to be resentenced into the custody of the Attorney General or, alternatively the Indiana Department of Corrections is without merit. Petitioner is already in the custody of the Indiana Department of Corrections. What petitioner’s request purports to be is a request to this court to order that his federal sentence be concurrent to his state sentence. The place of detention of petitioner is within the sole discretion of the Attorney General and the Bureau of Prisons. United States ex rel. Konigsberg v. Warden, 239 F.Supp. 724 (S.D.N.Y.1965). A federal court is not compelled to order that a federal sentence be served concurrently with a state sentence. United States v. Huss, 520 F.2d 598, 602 (2d Cir.1975). See also, Emig v. Bell, 456 F.Supp. 24 (D.Conn.1978).

Accordingly, it is the order of this court for the foregoing reasons that petitioner’s writ is hereby DENIED; petition DISMISSED. SO ORDERED.


author: ZIEGLER, District Judge.

text:
    TURRETT STEEL CORPORATION, a Pennsylvania corporation, Plaintiff, v. MANUEL INTERNATIONAL INCORPORATED, a New Jersey corporation, Defendant.
    Civ. A. 84-2186.
    United States District Court, W.D. Pennsylvania.
    July 10, 1985.

      Robert A. King, Pittsburgh, Pa., for plaintiff.
    John Shorall, Pittsburgh, Pa., Robert M. Schwartz, Trenton, N.J., for defendant.
   MEMORANDUM OPINION

ZIEGLER, District Judge.

This is a civil action seeking damages for breach of contract, breach of express and implied warranties, negligence and misrepresentation stemming from defendant’s sale of allegedly defective steel and alleged failure to supply certain other steel. Plaintiff, Turret Steel Corporation, is domiciled in Pennsylvania. Defendant, Manuel International Inc., is a New Jersey corporation. .Jurisdiction is predicated upon diversity of citizenship, 28 U.S.C. § 1332.

Pursuant to Fed.R.Civ.P. 12(b)(2), defendant has moved for dismissal, alleging lack of personal jurisdiction. In the alternative, defendant requests a transfer to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1404(a). Plaintiff opposes both motions and the parties have submitted affidavits in support of their positions. Because defendant’s contracts with the forum are sufficient to provide personal jurisdiction under the Pennsylvania “long-arm” statute, 42 Pa.C.S.A. § 5322 (Purdon 1981), defendant’s Rule 12(b)(2) motion will be denied. Furthermore, defendant has failed to state reasons sufficient to warrant transfer to the District of New Jersey.

The Pennsylvania “long-arm” statute authorizes the assertion of personal jurisdiction over non-resident defendants to the “fullest extent allowed under the Constitution of the United States.” 42 Pa.C. S.A. § 5322(b). Thus our exercise of jurisdiction is limited only by the due process clause. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir.1984); Proctor & Schwartz, Inc. v. Cleveland Lumber Company, 228 Pa.Super. 12, 16, 323 A.2d 11, 13 (1974). Plaintiff bears the burden of demonstrating contacts between the non-resident defendant and the forum state sufficient to satisfy due process. Compagnie des Bauxites de Guinee v. L’Union Atlantique S.A. D’Assurances, 723 F.2d 357, 363 (3d Cir.1983).

Our analysis of personal jurisdiction must begin with an initial inquiry: does the cause of action arise from defendant’s forum related activity? Reliance Steel Products Company v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 588 (3d Cir.1982). If so, plaintiff need demonstrate only certain “minimum contacts” so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). If the cause of action arises from a non-forum related activity, a higher threshold of “continuous and substantial” contacts with Pennsylvania must be shown. Id. at 318, 66 S.Ct. at 159; See also Reliance Steel, supra, 675 F.2d at 588.

The instant cause of action is forum related. The transaction in question resulted from defendant’s solicitation of sales in Pennsylvania. It is not disputed that defendant mailed price lists to plaintiff’s Pennsylvania office, that defendant has made numerous telephone calls to plaintiff in the course of dealings between the parties, or that Cliff Emory, an employee of defendant, made two trips to plaintiff’s office in Leetsdale, Pennsylvania to discuss business matters. (Feingold Affidavit dated October 5, 1984 ¶ 4, Gould Affidavit dated November 16, 1984 112, 5-10, Feingold Affidavit dated December 17, 1984 ¶ 4). Although an independent trucking firm transported the steel, defendant knew that it was bound for Leetsdale, Pennsylvania. (Gould Affidavit ¶ 12 and Exhibit C). Defendant’s solicitation of sales resulted in a series of steel purchases by plaintiff. The present cause of action arises from one of those purchases and thus is undeniably related to defendant’s activities in Pennsylvania.

Consequently, plaintiff need show only that defendant had “minimum contacts” with Pennsylvania, not that its contacts were “continuous and substantial.” Pennsylvania courts have formulated a three-prong test for determining whether “minimum contacts” are present:

The defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws____ The cause of action must arise from defendant’s activities within the forum state____ Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable.

Proctor & Schwartz, supra, 228 Pa.Super. at 19, 323 A.2d at 15. We will address each factor in turn.

Defendant contends that it has not “purposefully availed” itself of the privilege of conducting activities within Pennsylvania. In this regard, defendant notes that it is not licensed to do business in Pennsylvania, that it owns no property here, and that it has no Pennsylvania office, telephone listing, bank account, or agent for service of process. (Feingold Affidavit if 4). Defendant does admit soliciting business in Pennsylvania, but contends that the solicitation amounted to only Vio of 1 percent of its total business.

We hold that defendant’s solicitation of and actual sales to plaintiff are sufficient to satisfy the first prong of the Proctor test. Defendant initiated the business relationship when Ed Skalka, defendant’s employee, telephoned plaintiff seeking business. (Could Affidavit 112). The mailings, telephone calls and visits are further evidence of defendant’s voluntary entry into the Pennsylvania business market. Moreover, defendant could “foresee economic impact” within Pennsylvania as a result of its transactions with plaintiff. See Time Share, supra, 735 F.2d at 66. The proportion of direct sales to plaintiff when compared with total sales is irrelevant. Hendrickson v. Reg O Co., 657 F.2d 9, 13 (3d Cir.1981). Indeed, a ratio test would make it more difficult to establish jurisdiction over large corporations and raise equal protection problems. Id.

According to defendant, the invoice constitutes the entire contract between the parties. It contains a provision stating that the contract was made in New Jersey and governed by New Jersey law. Plaintiff vigorously disputes that the invoice is the contract and that New Jersey law is controlling. However, we need not determine these issues at this time. The Court of Appeals has held that while a choice of law provision is “perhaps a factor,” it is not enough to vest jurisdiction and does not create any economic impact within the state whose laws have been chosen. Time Share, supra, 735 F.2d at 65. Hence, if New Jersey law governs this action, we hold that defendant “purposefully availed” itself of the privilege of conducting activity within Pennsylvania.

As for the second prong, which requires that the cause of action arise from defendant’s activities within the state, this issue was decided when we determined that the cause of action was forum related.

Finally, we find that the exercise of jurisdiction is fair and reasonable under the circumstances. As rehearsed, defendant, not plaintiff, initiated the contacts that ultimately led to this lawsuit. Pennsylvania has an interest in resolving suits brought by its citizens and mere inconvenience to defendant is insufficient to deny plaintiff the forum of its choice. Proctor & Schwartz, supra, 228 Pa.Super. at 20-21, 323 A.2d at 16. The parties have entered into at least six transactions since August, 1982, which, in our opinion, constitute a regular course of dealing. In sum, defendant’s contacts with Pennsylvania are substantial and defendant “should reasonably anticipate being haled into court” in this forum. World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The motion to dismiss for lack of personal jurisdiction will be denied.

Defendant also has moved for transfer to the District of New Jersey, relying upon 28 U.S.C. § 1404(a). Section 1404(a) empowers a district court to “transfer any civil action to any other district or division where it might have been brought” based on “the convenience of the parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). The provision is designed to avoid unnecessary inconvenience and expense to litigants, witnesses and the public. Pikofsky v. Jem Oil, 607 F.Supp. 727, 731 (E.D.Wis.1985).

We hold that defendant has failed to state facts which would justify a transfer. The sole consideration suggested by defendant in support of its motion is its contention that New Jersey law applies. We need not decide that issue at this point, for even assuming that New Jersey law applies, transfer is not warranted. District courts regularly apply the law of states other than the forum state. No other allegations which might support transfer are proferred by defendant. Therefore, the motion for transfer pursuant to § 1404(a) is denied.

A written order will follow denying the motion of defendant.

ORDER OF COURT

AND NOW, this 10th day of July, 1985,

IT IS ORDERED that the motion of defendant to dismiss for lack of personal jurisdiction be and hereby is denied.

IT IS FURTHER ORDERED that the motion of defendant to transfer the action to the District of New Jersey pursuant to 28 U.S.C. § 1404(a) be and hereby is denied.

IT IS FURTHER ORDERED that defendant shall file an answer within 20 days.


author: GENE CARTER, District Judge.

text:
    A. Douglas THOMPSON, Plaintiff, v. The CITY OF PORTLAND, et al., Defendants.
    Civ. No. 83-0028-P.
    United States District Court, D. Maine.
    July 10, 1985.

      Robert H. Avaunt, Zuckerman & Avaunt, Gray, Me., for plaintiff.
    William J. Kayatta, Jr., Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., for individual defendants.
    Charles A. Lane, Corp. Counsel, Portland, Me., for City of Portland.
   ORDER GRANTING IN PART AND DENYING IN PART DEPENDANTS’ RENEWED MOTION TO DISMISS

GENE CARTER, District Judge.

I.

At the end of the presentation of the Plaintiff’s case-in-ehief, this Court granted in part and denied in part Defendants’ motion to dismiss the complaint under Fed.R. Civ.P. 41(b). The Court found the facts concerning the civil rights claims against Portland Police Chief Amoroso and the City of Portland and dismissed those claims. Now, after the presentation of all the evidence, the remaining Defendants have renewed their motion to dismiss the claims brought against them.

For the reasons stated in its bench ruling on the initial motion to dismiss, the Court denies the renewed motion to dismiss the state law claims for false arrest, false imprisonment, and use of excessive force by the police.

II.

Defendants also urge that the Court dismiss the Plaintiff’s civil rights claims on the ground that there has been no constitutional violation. The United States Supreme Court has held that neither negligent nor intentional deprivations of property interests provide a basis for a procedural due process claim where the state provides an adequate post-deprivation remedy and where pre-deprivation hearings are impractical. Hudson v. Palmer, - U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Although the Supreme Court has not squarely addressed the issue, Defendants argue that the Hudson-Parratt reasoning also applies to deprivations of liberty such as those alleged in this case. Adopting the reasoning applied by several federal courts, Defendants state that the Hudson Court reiterated that Parratt was based in part on an earlier decision in which the plaintiff had charged deprivation of liberty interests. See, e.g. Thibodeaux v. Bordelon, 740 F.2d 329, 336-37 (5th Cir.1984); Hicks v. Feeney, 596 F.Supp. 1504, 1510-11 (D.Del.1984).

In a recent case involving § 1983 claims for use of excessive force by the police, the Court of Appeals for the First Circuit noted “the mists that presently envelop this area of the law.” Voutour v. Vitale, et al., 761 F.2d 812, 818 (1st Cir.1985). In its lengthy footnote, the Court stated in pertinent part:

It is yet unclear whether this approach will be applied to deprivations of life or liberty under the fourteenth amendment____ Some courts have begun to do so ... even in cases such as the present involving use of excessive force in an attempted arrest....
Plaintiff has relied on Parratt to argue that negligence provides a basis of recovery under section 1983. But we cannot apply that aspect of Parratt without also looking into Parratt’s primary teaching, i.e., asking whether the existence of an adequate state negligence remedy affords sufficient process to vitiate any section 1983 claim here. A case can be made for such a result, bearing in mind that Wheeler himself committed no violence against Voutour, being linked to the shooting solely by alleged negligence. If section 1983 is to be reserved for violations of civil rights as commonly understood, it might be reasonable to hold that although Vitale’s [the officer who shot plaintiff] use of excessive force, if proven, violated section 1983, Wheeler’s unwitting negligence did not,

Id. at 818, n. 4 (citations omitted). The Court did not resolve the question of the partial or total applicability of Parratt because another ground of decision was available.

In a concurring opinion, Judge Bownes specifically objected to the suggestion that state negligence remedies afford sufficient process for negligent deprivations of life or liberty:

I do not believe that Parratt should be extended beyond deprivations of property. See Parratt, 451 U.S. at 545 [101 S.Ct. at 1918] (Blackmun, J., concurring); Hudson v. Palmer [— U.S.-,-, n. 4, 104 S.Ct. 3194, 3197, n. 4, 82 L.Ed.2d 393] 52 U.S.L.W. 5052, 5058, n. 4 (U.S. July 3, 1984) (Stevens, J., concurring.in part and dissenting in part). Life and liberty interests are such that due process cannot be satisfied procedurally by the provision of post-deprivation remedies. At some point, “procedural due process shades into substantive due process, and Parratt becomes inapplicable.” Thibodeaux v. Bordelon, 740 F.2d 329, 338-39, n. 9 (5th Cir.1984).

Id. at 826 (Bownes, J. concurring).

The Court agrees with Judge Bownes’ perception of the important distinction between deprivations of property interests and deprivation of life and liberty interests. Accordingly, the Court will deny Defendants’ motion to dismiss the section 1983 claims, which is based on the assertion that there can be no constitutional violation under the circumstances of this case.

III.

Defendants argue persuasively, however, that they are entitled to qualified immunity from the 1983 claims to the extent that they are based on the alleged warrantless arrest without probable cause. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. In an opinion issued shortly after the trial in this case, the Court of Appeals for the First Circuit held that in the case of a section 1983 claim arising out of a warrantless arrest, the qualified immunity afforded by Harlow “is pierced only if there clearly was no probable cause at the time the arrest was made.” Floyd v. Farrell, 765 F.2d 1 (1st Cir.1985). As the Court stated in its bench ruling, the factual issues concerning the alleged false arrest of Plaintiff are extremely close. In such a situation the qualified immunity of the officer is not pierced because the existence of probable cause to arrest Plaintiff is subject to legitimate debate and reasonable disagreement. Therefore, to the extent that Plaintiffs section 1983 claims are based on allegations of his arrest without probable cause, they are dismissed.

IV.

Plaintiff, Defendants and the Court appear to be in agreement that under the most recent pronouncement of Maine law on the issue, Plaintiff is not entitled to punitive damages on his state law claims. Tuttle v. Raymond, 494 A.2d 1353 (Me.1985). Tuttle requires a showing of malice for an award of punitive damages, and there has been no such showing. For the reasons stated in the bench ruling, however, the Court will not dismiss the punitive damages element of the remaining section 1983 claims.

Accordingly, it is ORDERED that Defendants’ Motion to Dismiss Plaintiff’s section 1983 claims is granted to the extent that those claims are based on the alleged arrest of Plaintiff without probable cause.

It is FURTHER ORDERED that Plaintiff’s claims for punitive damages for his alleged state law injuries are hereby DISMISSED.

In all other respects Defendants’ Renewed Motion to Dismiss is DENIED.

So ORDERED.

      . The Court’s resolution of the merits of the case will await full briefing if such briefing is desired by the parties.


author: GERALD J. WEBER, District Judge.

text:
    Darcie A. STEADMAN on Behalf of Jonathon STEADMAN, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-214 ERIE.
    United States District Court, W.D. Pennsylvania.
    July 11, 1985.

      Timothy D. McNair, Schroeck, Segel & Murray, Erie, Pa., for plaintiff.
    J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

Plaintiff here appeals the Secretary’s denial of Jonathon Steadman’s application for Supplemental Security Income. 42 U.S.C. § 1383(c)(3); 42 U.S.C. § 405(g). Darcie Steadman, Jonathon’s mother, alleges that Jonathon became disabled in 1980 because of epilepsy. The Secretary acknowledges that a neurological impairment exists, but argues that this condition is not serious enough to be considered disabling. We now address the parties’ cross-motions for summary judgment.

Jonathon Steadman is eight years old. He was first examined by physicians in December 1982 after his mother and kindergarten teacher noticed that he was having “staring spells” and that his performance in school was declining. At a parent-teacher conference in 1982, Mrs. Steadman was informed that Jonathon usually required instructions to be repeated while other children had already begun their tasks. When the teacher called his attention to his deficiencies, he became very nervous. Mrs. Steadman received notes from the teacher stating that he was not participating in class; that he does a lot of daydreaming; and that he had difficulty completing assignments, taking two or three days to finish work that should be done in twenty minutes. Record at 108-109. The following year Jonathon’s first grade teacher reported that he “seemed to be living in a world of his own and refuses to even try to learn such little tasks as tying a shoe lace or keeping himself neat.” Record at 106. He suffered enuresis for the first time in school and at home. Record at 98. Otherwise he seems very bright, in kindergarten scoring in the top 3% of an intelligence test given to five and six year olds. Record at 107.

Jonathon’s staring spells have been described in the record. They last for 30-60 seconds and are usually characterized by a blank stare and a loss of awareness. Occasionally, his eyes roll back or his head drops and his mouth opens. Record at 100. In one instance he fell to the floor in school without remembering what happened. Record at 110. He has suffered physical injury and come dangerously close to injury, a condition his mother claims is attributable to the temporary losses of awareness. He has been struck in the head and face with thrown baseballs during routine play. He made no defensive reaction before being struck in the face by another child wielding a gas can. He put his hand through the window of a closing storm door. He once had to be pulled from the middle of a street after stopping to stare at a traffic light, ignoring his brother’s warnings. Record at 119-20.

While we must admit that most of these incidents by themselves seem typical of young boys, we have no doubt that, considered in combination and with the medical evidence, Jonathon suffers from a serious impairment. Jonathon was examined three times at a pediatric clinic between December of 1982 and February of 1983, and four times in a neurology clinic from March 1983 to November 1983. He has been diagnosed by Dr. K. Dudenhoffer as having a complex absence seizure disorder, also referred to as petit mal seizures. Record at 96. He has had an abnormal electroencephalograph, reported by Dr. M. Duncombe in March 1983. Jonathon is taking Zarotin and Depakene, anti-convulsants, to control his condition. This course has been successful in lessening the frequency of his spells, but he still suffers three spells a day. Record at 24 and 104. In addition, these drugs, the dosages of which have been increased over time, have made him “hyper”. Record at 96-105.

Our task on review is to determine whether there is substantial evidence on record to support the Secretary’s decision. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Because we are reviewing a decision involving a minor, we must refer to the Secretary’s regulations on this subject. As provided in 20 C.F.R. § 416.923, a person under age 18 will be found disabled if he or she:

(a) is not engaging in any substantial gainful activity;
(b) Has a medically determinable physical or mental impairment which is as severe as any impairment which would be considered disabling to a person over age 18.

This impairment must (1) last for a period of at least twelve months and (2) match a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1, or (3) is determined by the Secretary to be medically equal to such listing.

In his opinion, the AU applies two specific descriptions of neurological impairments from the regulations. Record at 11-12; see 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.02 and § 11.03. He found that Jonathon’s condition did not meet the listing for Section 11.02, epilepsy—major motor seizures, but made no finding as to Section 11.03, epilepsy—minor motor seizures. This absence is decisive since we find that Jonathon’s condition meets the criteria listed in Section 11.03. Section 11.03 lists the following as a disabling impairment:

Epilepsy-minor motor seizures (petit mal, psycho-motor, or focal), documented by EEG and by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.

The evidence on record meets these requirements. As described above, Jonathon’s petit mal seizures have been diagnosed both by Dr. Dudenhoffer and Dr. Duncombe; the seizures and their sometimes dangerous effects are described thoroughly in the record. These descriptions are corroborated by an abnormal EEG. The seizures typically occur more than once daily. While Jonathon’s medications have reduced the number of seizures, their occurrence has persisted throughout the twelve months of medical treatment covered in the record. We have no doubt that the testimony of his family members and teachers supports the finding that the seizures alter his awareness and significantly interfere with behavior in school and at home.

In her brief, the Secretary argues that a certain document made in June 1983 refutes all the other evidence of Jonathon’s impairment. This document is a three sentence summary of an Administration employee’s conversation with Dr. Duncombe as he reviewed his notes. Record at 93. This evidence may lessen the severity one may attach to an evaluation of the evidence of Jonathon’s condition. It does not, however, constitute substantial evidence for denying his application for benefits.

We can deduce no definite date of onset for Jonathon's condition; Dr. Duncombe has stated that it could have begun in infancy. Record at 103. We, therefore, will reverse the Secretary and order benefits paid from July 29, 1980, the date of Jonathon’s first contact with the Erie County Crippled Children Society for symptoms that then reflected his present impairments. Record at 126.

      . The probative evidence comes from Jonathon’s brother, a minor whose competence ordinarily would be subject to scrutiny. His age is unstated, but he appears from the activities described to be a few years older than Jonathon. In evaluating this evidence, however, we must consider that these proceedings are not adversarial and that plaintiffs have not had the assistance of counsel.


author: CARMAN, Judge:

text:
    HERAEUS-AMERSIL, INC., Plaintiff, v. UNITED STATES, Defendant.
    No. 81-1-00100.
    United States Court of International Trade.
    June 6, 1985.

      Fitch, King & Caffentzis, New York City (Richard C. King and James Caffentzis, New York City, on the motion) for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, Intern. Trade Field Office, Commercial Litigation Branch (John J. Mahon, New York City, on the cross-motion) for defendant.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge:

This action is before the Court on plaintiff’s motion for summary judgment. The parties agree that there is no genuine issue as to any material fact.

Plaintiff contends that its imported merchandise, known as “fused quartz” or “fused silica,” should be classified under items 540.11 and 540.41 of the Tariff Schedules of the United States (TSUS). The basis of plaintiff’s claim is that the more than 300 known liquidations of entries over a 10 year period of like or similar merchandise classified under the same claimed item numbers constitutes “an established and uniform practice” within the meaning of 19 U.S.C. § 1315(d) (1982). An established and uniform practice of classifying fused quartz and fused silica under items 540.11 and 540.41 would, according to plaintiff, preclude the United States Customs Service (Customs) from classifying the merchandise under item 540.67, TSUS, as it did in this case, because of the failure to follow proper notice procedures prior to deviating from the alleged established and uniform practice.

Defendant cross-moves for partial summary judgment, contending that the notice requirement resulting from an established and uniform practice is predicated upon a “finding” of such practice by the Secretary of the Treasury. Defendant claims that plaintiff has failed to prove that a uniform practice existed, but irrespective of a practice, plaintiff is not entitled to relief in the absence of a finding by the Secretary. Defendant therefore asserts it is entitled to summary judgment in its favor dismissing the uniform and established practice claim.

Defendant claims, in the alternative, that this Court lacks authority to determine whether a uniform and established practice existed; therefore, the case should be remanded to the Secretary of the Treasury to make the appropriate affirmative or negative finding. The defendant petitions the Court further to certify the question for an interlocutory appeal pursuant to 28 U.S.C. § 1292(d)(1) (1982) should the Court grant any relief to plaintiff or adhere to the Court’s earlier decision in Heraeus-Amersil, Inc. v. United States, 8 CIT —, 600 F.Supp. 221 (1984) (denying defendant’s motion to dismiss that part of the complaint relating to an established and uniform practice, and holding that plaintiff may show such practice under 19 U.S.C. § 1315(d) by actual uniform liquidations).

STIPULATED FACTS

Plaintiff imports optical grade fused quartz or fused silica at the ports of Newark and John F. Kennedy International Airport (JFK). At the liquidation of plaintiff’s optical types that were imported from Germany during March-December, 1976 and April, 1981, Customs classified the merchandise in issue under item 540.67, TSUS. In the previous period of 1968 through November, 1977, Customs liquidated other entries of plaintiffs same optical types under items 540.11 and 540.41, TSUS. Over 300 documented entries at the two ports mentioned above resulted in classification and liquidation under these items numbers. All merchandise identical or similar to plaintiffs optical types was classified prior to December 30, 1977, under either item 540.11 or 540.41. There is no evidence that .any optical grade fused quartz/fused silica was ever classified as “optical glass” under item 540.67, TSUS, or under its 1930 Tariff Act predecessor, prior to December 30, 1977.

From 1968 through November, 1977, at least five import specialists at the Newark and JFK ports of entry uniformly made advisory classifications of plaintiffs optical types under items 540.11 or 540.41. In 1977, however, another import specialist assumed advisory classification responsibility at JFK for plaintiffs optical types. This specialist made a new advisory classification which resulted in the change of classification to item 540.67.

The Secretary of the Treasury or his lawful delegee concededly made no “finding” under 19 U.S.C. § 1315(d) of whether an established uniform practice existed as to the classification of optical grade fused quartz or fused silica. Accordingly, the Secretary never published, pursuant to section 1315(d), a notice of proposed change of practice in the classification of the merchandise at issue.

OPINION

In Heraeus-Amersil, Inc. v. United States, 8 CIT —, 600 F.Supp. 221 (1984), this Court, in deciding defendant’s motion to dismiss in part, considered whether a uniform and established practice could arise from uniform classifications of like merchandise over a period of time which would bind Customs unless the change in practice was executed pursuant to 19 U.S.C. § 1315(d). The Court held that the plaintiff could show an established and uniform practice by actual uniform liquidations, even though the Secretary of the Treasury had made no “finding” that such a practice existed. It is clear that the established and uniform practice Congress contemplated is antecedent to a finding. Siemens America, Inc. v. United States, 2 CIT 136, 138 (1981), aff'd 692 F.2d 1382 (Fed.Cir.1982). The applicability of section 1315(d) is thus not necessarily dependent upon a finding by the Secretary. See Her aeus-Amersil, 8 CIT at —, 600 F.Supp. at 225. “In the absence of an affirmative or negative finding, ... the Court, when properly presented with the issue, may resolve it.” Id. at —, 600 F.Supp. at 224.

The question now before the Court, then, is whether in light of the stipulated facts an actual established and uniform practice existed with respect to the classification of optical grade fused quartz or fused silica. In the briefs submitted in support of the cross-motions for summary judgment, and at oral argument, much of the argument of the parties was a rehash of the question regarding the necessity of a finding by the Secretary of the Treasury in order for an established and uniform practice to arise within the purview of section 1315(d). This question was previously adequately briefed and decided by the Court. See Heraeus-Amersil, 8 CIT —, 600 F.Supp. 221 (1984). The Court adheres to the rationale of its prior opinion which is the law of this case. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 788 (1981).

Precedents concerning what specifically constitutes an established and uniform practice under section 1315(d) are unfortunately sparse. Nevertheless, the Court can make the determination on a case-by-case basis according to certain guiding principles. See 8 CIT at —, 600 F.Supp. at 225. Factors to be considered are the number of entries resulting in the alleged uniform classifications, the number of ports at which the merchandise was entered, the period of time over which the alleged uniform classifications took place, and whether there had been any uncertainty regarding the classification over its history. In essence, the question is whether a uniform and established practice existed that would lead an importer, in the absence of notice that a change in classification will occur, reasonably to expect adherence to the established classification practice when making an importation.

In this case, the classification of fused quartz/fused silica under items 540.-11 and 540.41 spanned a period of at least 10 years. Over 300 liquidations at two ports under these item numbers have been documented. On the basis of this large number of past entries over the long time period involved, the Court finds that plaintiff was entitled to rely upon the continued classification of its optical types under items 540.11 and 540.41, unless Customs published notice of a contemplated change in classification practice pursuant to section 1315(d).

The only authority directly on point indicates that the classification practice here has existed well beyond the time span required for an established and uniform practice. Thus, in Emil Dienert v. United States, 9 Cust.Ct. 411, Abs. 47,544 (1942), the court found that 5 to 8 years of classifying merchandise as a particular article constituted an established and uniform practice. Since there was no evidence that notice to impose a higher rate was published, the court held that “Treasury officials did not comply with the provisions of section 6, Customs Administrative Act of 1938 [19 U.S.C. § 1315(d) ],” and that the action of the collector in classifying the articles under a new category was “without legal force and effect.” Id. at 412. The court did not discuss the necessity of a finding.

In many of the cases involving section 1315(d), the issue was whether or not some action by Customs constituted a finding. See Heraeus-Amersil, 8 CIT at — n. 7, 600 F.Supp. at 224 n. 7. The actual existence of an established and uniform practice has nevertheless often been discussed by the courts to support holdings that the Secretary of the Treasury had not made a section 1315(d) finding. E.g., Siemens America, Inc. v. United States, 692 F.2d 1382 (Fed.Cir.1982), aff'g 2 CIT 136 (1981); see Heraeus-Amersil, 8 CIT — n. 8, 600 F.Supp. at 10 n. 8. These discussions are helpful, however, in demonstrating what practices on the part of Customs are not established and uniform.

In Siemens, 100 entries of merchandise classified under a particular item number over possibly 2 years at a single port was not enough to create de facto an established and uniform practice. 2 CIT at 139. That controversy centered on a ruling letter pertaining to future importations of the plaintiffs merchandise. The plaintiff argued that the letter followed by a corresponding 2 years of uniform classifications constituted a uniform and established practice. Evidence showed, however, that entries just prior to the letter were liquidated under another item number, with protests denied after the letter, suggesting that Customs had not definitively decided on the correct classification. See Siemens, 692 F.2d at 1384 & n. *.

Similarly, in Washington Handle Co. v. United States, 34 CCPA 80, C.A.D. 346 (1946), like classification treatment of twenty-eight shipments over a 2-year period was not enough to create an established and uniform practice. Important to the court was the “considerable uncertainty” as to the proper classification during even the 2-year period. Id. at 86.

Prior discussions demonstrate that when Customs has not had a reasonable opportunity to investigate adequately the proper classification for a type of imported merchandise, an established and uniform practice will not arise in the interim. In Naumes Forwarding Service v. United States, 42 CCPA 110, C.A.D. 581 (1955), for example, Customs reevaluated its method for determining the ratio representing the amount of imported concentrated lemon juice to natural juice. The court found that Customs was not required to follow the notice provisions of section 1315(d) when changing from a practice employed in liquidating entries over a 2-month period to one “based on ‘the best current and authentic data.’ ” Id. at 112.

In the case now before the Court, nothing indicates that Customs was uncertain or was reconsidering the classification of fused quartz/fused silica prior to changing the classification of this merchandise. The Court is impressed that the practicé existed for at least 10 years. Only upon reassignment of advisory classification responsibility did an import specialist initiate the change to classification under item 540.67. Unless Customs publishes notice of a contemplated change, the legislative objective under section 1315(d) of “lending certainty to the importing process” would clearly be circumvented. See Heraeus-Amersil, 8 CIT at —, 600 F.Supp. at 223. The failure of Customs to provide notice is not vitiated by the omission of a “finding” regarding an established and uniform practice.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for summary judgment is granted. In these circumstances where Customs displayed no ambivalence as to the classification of plaintiff’s merchandise for 10 years in 300 liquidations, the Court holds that as a matter of law a uniform and established practice existed. To be valid, Customs’ classification of the merchandise, beginning in the spring of 1978, under a variant item number should have been preceded by publishing notice of the change pursuant to 19 U.S.C. § 1315(d). The involved entry must accordingly be reliquidated under items 540.11 or 540.41.

Defendant’s petition for interlocutory appeal is moot, since appeal may now be taken from the judgment for plaintiff.

JUDGMENT

This case having been duly submitted for decision and the Court, after due deliberation, having rendered a decision herein; now, in conformity with said decision, it is hereby

ORDERED, ADJUDGED, and DECREED:

1. That plaintiff’s motion for summary judgment is granted;
2. That defendant’s cross-motion for partial summary judgment is denied;
3. That the Customs officials reliquidate the subject optical fused quartz or • fused silica of Court No. 81-1-00100 only, which covers entry number 188,596, previously liquidated under item 540.67, TSUS, under either item 540.11 or 540.41, as modified by T.D. 68-9, TSUS, as appropriate, and refund to plaintiff the excess duties paid together with interest as provided by law.

      . The Customs regulations provide that a uniform practice may also be established by publication of a ruling pursuant to 19 C.F.R. § 177.-10(b) (1984).

      . Item 540.67 of the TSUS, as modified by T.D. 68-9, provides:
      Optical glass in any form, including blanks for spectacle lenses and for other optical elements; non-optical-glass blanks for corrective spectacle lenses; synthetic optical crystals in the form of ingots, segments of ingots, sheets, or blanks for optical elements; all the foregoing not optically worked; polarizing material, in plates or sheets, not cut to shape or mounted for use as polarizing optical elements;
      540.67 Other optical glass and synthetic optical crystals; polarizing material ......... .........................25% ad val.

      . Item 540.11, TSUS, as modified by T.D. 68-9, provides:
      Glass, in the mass; glass, crushed, powdered or flaked (frostings); and waste or scrap glass; all the foregoing except glass provided for in items 540.21 and 540.27:
      Glass in the mass:
      540.11 Containing over 95 percent silica by weight.................. 7.5% ad val.
      Item 540.41, TSUS, as modified by T.D. 68-9, provides:
      Glass rods, tubes, and tubing, all the foregoing not processed:
      540.41 Containing over 95 percent silica by weight....................7% ad val.

      . 19 U.S.C. § 1315(d) (1982)'provides:
      No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling; but this provision shall not apply with respect to the imposition of antidumping duties, or the imposition of countervailing duties under section 1303 of this title.

      . The Court gleaned that Congress, in codifying a then-existing administrative practice by enacting section 1315(d) "was attempting to lend certainty to the importing process. The importing community is thus aided by the provision’s remonstrance that an established and uniform practice not be changed absent public notice. [Citation omitted.]’’ Heraeus-Amersil, 8 CIT at —, 600 F.Supp. at 223.
      The Court held that implementations of this Congressional intent was not necessarily dependent upon a finding by the Secretary of the Treasury. The Court reached this conclusion by looking at what had been considered in other cases decided under section 1315(d). Given that "many cases have passed on the question of whether an actual uniform practice existed," one is therefore led to “conclude that the issue was meaningful to the determination. Otherwise, it would seem that the courts were engaging in useless formulations." 8 CIT at —, 600 F.Supp. at 224.
      Second, the effect of having section 1315(d) dependent on a finding by the Secretary would be the nullification of the Congressional purpose in certain cases:
      To be sure, when the Secretary makes a finding that an established and uniform practice either exists or does not exist, that determination is within the Secretary’s congressionally designated discretion. See Washington Handle Co. v. United States, 34 CCPA 80, 86 (1946). Such a determination cannot be disturbed by a court, except, perhaps, for an abuse of that discretion. See Rank Precision Industries, Inc. v. United States, 68 CCPA 78, 84, 660 F.2d 476, 480 (1981). In the absence of an affirmative or negative finding, however, the Court, when properly presented with the issue, may resolve it. In this connection, I well heed Chief Judge Markey’s stern admonition in the Ditbro Pearl case that to hold otherwise “would render § 315(d) a nullity in the hands of a Secretary choosing to refrain from ever making a finding.” Ditbro Pearl Co. v. United States, 62 CCPA 95, 97, 515 F.2d 1157, 1159 (Markey, C.J., concurring).

        Id.

      . The summons filed in this case, Court No. 81-1-00100, covered only entry number 188,-596, which was liquidated on May 12, 1978. Although Court No. 81-1-00100 has been designated a test case .and other cases have been suspended under it, the Court’s holding is limited to entry number 188,596. Merchandise of subsequent entries would not necessarily be entitled to classification based on an administrative practice which has been interrupted and is therefore no longer uniform.


author: GASCH, Presiding Judge:

text:
    CONSOLIDATED RAIL CORPORATION, Plaintiff, v. Christopher J. MULLIGAN, Defendant.
    Civ. A. No. 83-15.
    Special Court, Regional Rail Reorganization Act.
    June 24, 1985.

      John A. Fraser, Harry A. Rissetto, Morgan, Lewis & Bockius, Washington, D.C., Dennis Alan Arouca, David S. Fortney, Philadelphia, Pa., for plaintiff Consol. Rail Corp.
    Robert L. Ferris, New York City, for defendant Christopher J. Mulligan.
    Before GASCH, Presiding Judge, and BRYANT and WEINER, Judges.
   GASCH, Presiding Judge:

This matter is before the Court on the motion of plaintiff Consolidated Rail Corporation (“Conrail”) for summary judgment. Conrail has filed this action for declaratory and injunctive relief aimed at barring defendant Christopher J. Mulligan from pursuing certain arbitration proceedings he initiated in an effort to receive benefits pursuant to Title V of the Regional Rail Reorganization Act of 1973 (“RRRA”). The Court heard oral argument on plaintiff’s motion on May 14, 1985. For the reasons stated below, Conrail’s motion is granted.

BACKGROUND

On March 29, 1982, counsel for Mr. Mulligan filed a “notice of intention to conduct an arbitration” with the National Mediation Board. The notice provided in pertinent part:

Please take notice that pursuant to the Regional Rail Reorganization Act of 1973, which provides in part for arbitration of disputes under the aforementioned Act and pursuant to 9 U.S. Code and Section 7503(c) of the Civil Practice Law and Rules and other applicable laws, the undersigned attorney for the Petitioner will proceed to a hearing of a certain dispute between the parties as set forth in the statement hereto attached before an arbitrator designated by the National Mediation Board.

Complaint 114, Exhibit 1; Defendant’s Opposition at 2. Conrail was identified as one of the respondents on the notice. A “statement of dispute” attached to the notice listed the following as the subject matter of the arbitration:

Violation of [Section] 505 of the Regional Rail Reorganization Act of 1973 with respect to the Petitioner.!!

Section 505 was enacted as part of Title V of the Regional Rail Reorganization Act and provided for monthly displacement allowances to any employee of Conrail’s predecessor railroads who was deprived of employment by the reorganization. Section 505 also gave transferred employees a number of protections and provided for separation allowances to employees who voluntarily resigned. See Railway Labor Executives’ Association v. United States, 575 F.Supp. 1554, 1555 n. 4 (Sp.Ct.R.R.R.A. 1983), cert. denied, — U.S.-, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984). However, Section 505 was expressly repealed by Section 1144 of the Northeast Rail Service Act (“NRSA”).

DISCUSSION

Plaintiff in this action seeks an order declaring that the Special Court has exclusive jurisdiction over the subject matter of Mr. Mulligan’s claim for Title V benefits and enjoining Mr. Mulligan from taking any further action in pursuit of that claim through the arbitration process discussed supra.

A. Jurisdiction

Section 1152(a)(1) of NRSA, 45 U.S.C. § 1105 (1982), vests this Court with “exclusive jurisdiction” over any civil action:

for injunctive, declaratory, or other relief relating to the enforcement, operation, execution, or interpretation of any provision of or amendment made by [NRSA].

As noted above, Section 1144 of NRSA repealed Section 505 of the RRRA. Thus this action by Conrail is a civil action for injunctive and declaratory relief relating to the interpretation of NRSA.

This Court held in Consolidated Rail Corporation v. County of Monroe, 558 F.Supp. 1387, 1390 (Sp.Ct.R.R.R.A.), cert. denied, 462 U.S. 1120, 103 S.Ct. 3089, 77 L.Ed.2d 1350 (1983), that its jurisdiction does not extend to issues which only “tangentially touch the provisions of NRSA.” Because the failure to exercise jurisdiction in this matter would subject Conrail to liability for claims that the Congress declared, in enacting NRSA, represent an obstacle to the establishment of improved rail service and a threat to Conrail’s prospects of maintaining profitable service, it is clear that this matter “significantly affect[s] implementation of [NRSA].” Id. Thus this Court has exclusive jurisdiction over this action.

B. Timeliness of Defendant Mulligan’s Title V Claim

In repealing Section 505, Congress provided a limited ninety day grace period for the filing of Title V claims before they would be forever barred. This ninety-day period began to run on September 1,1981.

It is undisputed that Mr. Mulligan did not file a claim for Section 505 benefits prior to March 29, 1982. Even assuming that Mr. Mulligan filed his notice of intent to compel arbitration no later than that date and that this represented the proper procedure to make a Section 505 claim, the claim would not have been filed within the ninety-day grace period. Thus any effort to recover Section 505 benefits is barred by the repeal of that provision contained in Section 1144 of NRSA.

Mr. Mulligan has offered no argument challenging this reading of NRSA’s repeal provisions. Instead, Mr. Mulligan contends that all questions regarding the Section 505 claim at issue must be ruled on through the arbitration process he seeks to initiate and that Conrail has waived any right to object to the arbitration by somehow participating in that proceeding. These contentions rest on decisions addressing the scope of the New York statute Mr. Mulligan relies on in seeking this arbitration, Section 7503(c) of the Civil Practice Law. However, any arguments based on that statute fail to take into account the preemptive effect of the federal NRSA statute. Under the Supremacy Clause of the Constitution, Article VI, clause 2, a federal statute will preempt state law to the extent that the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Application of the New York statute in this context would frustrate the achievement of the objectives noted by Congress in enacting NRSA. See supra note 8. To that extent, therefore, the New York statute is preempted by NRSA, and Mr. Mulligan may not rely on it to compel Conrail to arbitrate a claim that Congress has declared time-barred.

Wherefore, it is ORDERED that Christopher J. Mulligan is hereby enjoined from pursuing further arbitration proceedings in support of any Title V claim against Conrail as the Court finds that claim to be barred by the repeal of Title V contained in Section 1144 of NRSA.

      . Mr. Mulligan is apparently a present or former employee of Conrail. See Complaint, Exhibit 10.

      . Pub.L. 93-236 §§ 501-09, 87 Stat. 985, 1012-20 (Jan. 2, 1974).

      . The complaint alleges that the notice was filed on or about April 2, 1982. Complaint ¶ 4. Mr. Mulligan asserts that the notice was actually filed on March 29, 1982. Opposition to Motion of Consolidated Rail Corporation for Summary Judgment ("Defendant’s Opposition”) at 2. As discussed infra, regardless of whether the notice was filed on March 29, or April 2, 1982, it is time-barred. Thus any dispute on this point does not present a material issue of fact.

      . The arbitration has never been held. On June 2, 1982, counsel for Mr. Mulligan asked the National Mediation Board ("the NMB”) to supply a panel of possible arbitrators. Complaint, Exhibit 2. On June 7, 1982, the NMB did so, noting that its action did “not indicate any determination with respect to the merits of the parties with respect to this request." Complaint, Exhibits 2 and 3. On September 21, 1982, counsel for Mr. Mulligan purported to select Richard R. Kasher, Esq. as arbitrator. Complaint, Exhibit 11. On November 5, 1982, Mr. Kasher notified the parties that after considering Conrail’s objections, he was ”withdraw[ing] as the proposed neutral in this matter.” Complaint, Exhibit 15.
      On July 16, 1983, counsel for Mr. Mulligan asked Judge Earle Warrin Zaidins to serve as arbitrator in this matter. Complaint, Exhibit 21. Conrail registered its objections to the arbitration with Judge Zaidins. Complaint, Exhibit 22. On September 12, 1983, Judge Zaidins agreed to Conrail’s request for a continuance of the arbitration. Complaint, Exhibit 24.
      Conrail has consistently registered its objection to the arbitration Mr. Mulligan seeks. See, e.g., Complaint, Exhibit 6 (June 22, 1982 letter from Conrail to counsel for Mr. Mulligan objecting to Mr. Mulligan's failure to follow procedure for Title V claim); Exhibit 14 (October 28, 1982 letter from Conrail to proposed arbitrator detailing Conrail’s objections to arbitration); Exhibit 20 (May 20, 1983 letter from Conrail to counsel for Mr. Mulligan denying claim as barred by repeal of Title V); Exhibit 22 (July 29, 1983 letter from Conrail to proposed arbitrator objecting to arbitrability of claim).

      . 45 U.S.C. § 775 (1976).

      . Pub.L. No. 97-35, § 1144, 95 Stat. 669 (Aug. 13, 1981).
      Section 1144(a)(1) stated that: “Title V of the Regional Rail Reorganization Act of 1973 (45 U.S.C. § 771 et seq.), and the items in the table of contents of such Act relating to Title V, are repealed.”
      Section 1144(a)(2) contained a limited exception to this repeal for claims filed within a statutory grace period. As discussed infra, Mr. Mulligan cannot rely on this exception.

      . See Railway Labor Executives' Association v. Grand Trunk Western R.R. Co., 594 F.Supp. 758 (Sp.Ct.R.R.R.A.1984); Railway Labor Executives’ Association v. United States, supra.

      . Section 1132 of NRSA contains the following findings and declarations:
      (4) the provisions for protection of employees of bankrupt railroads contained in the Regional Rail Reorganization Act of 1973 have resulted in the payment of benefits far in excess of levels anticipated at the time of enactment, have imposed an excessive fiscal, burden on the Federal taxpayer, and are now an obstacle to the establishment of improved rail service and continued rail employment in the Northeast region of the United States; and (5) [] holding Conrail liable for employee protection payments would destroy its prospects of becoming a profitable carrier and further injure its employees____
      45 U.S.C. § 1101 (1982).

      . The second and third paragraphs of subsection (a) of Section 1144 contain the following limited exception to the repeal of Title V contained in the first paragraph of that subsection:
      (2) Notwithstanding the repeal made by paragraph (1) of this subsection—
      (A) benefits accrued as of the effective date of this subsection as a result of events that occurred wholly prior to October 1, 1981, shall be disbursed except as provided in paragraph (3); and
      (B) any dispute or controversy regarding such benefits shall be determined under the terms of the law in effect on the date the claim arose.
      (3) Benefits shall not be disbursed under paragraph (2)(A) unless the employee has filed a claim for such benefits within 90 days after the date of repeal____

      . Paragraph 4 of subsection (a) of Section 1144 established "the first day of the first month beginning after the date of enactment” as the effective date of the subsection. The statute was enacted on August 13, 1981.

      . In response to an inquiry from counsel for Conrail concerning the existence of any efforts to claim benefits prior to this date, counsel for Mr. Mulligan stated:
      Mr. Mulligan did not file a claim and the reasons for this will be set forth in detail at the hearing if there is a hearing.
      Complaint, Exhibit 10 ¶ 4.

      . See supra note 3.

      . Section 507 of the RRRA, 45 U.S.C. § 777 (1976), provides the exclusive means of applying for Title V benefits. See United Transportation Union v. Conrail, 672 F.2d 621, 624-25 (7th Cir.1982).

      . Section 7503(c) of the New York Civil Practice Law states:
      Notice of intention to arbitrate. A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation, and stating that unless the party served applies to stay the arbitration within twenty days after such service, he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded____
      N.Y.Civ.Prac.Law § 7503(c) (McKinney 1980).

      . See also Hillsborough County v. Automated Medical Laboratories, Inc., - U.S. -, -, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985); Michigan Canners & Freezers Association v. Agricultural Marketing & Bargaining Board, — U.S. -, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984); Jones v. Rath Packing Co., 430 U.S. 519, 540-43, 97 S.Ct. 1305, 1317-19, 51 L.Ed.2d 604 (1977).