Noel Hillman

A federal judge in New Jersey has allowed to proceed a painting contractor’s suit against the Delaware River Port Authority in connection with its bid to paint the Commodore Barry Bridge, but dismissed claims filed under state sunshine laws—in the process offering a critique to Pennsylvania lawmakers.

U.S. District Judge Noel Hillman, sitting in Camden, said he could not hold the Delaware River Port Authority to the requirements of New Jersey’s and Pennsylvania’s open public meetings laws because the Pennsylvania Legislature has not acted to apply its statute to that bistate agency.

“Despite the Court’s own belief that the world would be a better place if DRPA were held accountable under the same sunshine laws virtually every other similar governing body in the country is, that decision is for another sovereign and branch of government,” Hillman wrote. “This Court sits to interpret law and not make it—a task under these circumstances entrusted to the political branches.”

The DRPA, created in 1951 in a compact between New Jersey and Pennsylvania, owns and operates bridges between the two states, as well as a commuter rail line.

Hillman is presiding over a long-running action involving a Baltimore-based painting contractor, Alpha Painting and Construction, who is challenging the award of a $17 million contract to repaint the Commodore Barry Bridge to an Ohio-based competitor, Corcon Inc.

Alpha was the lowest bidder for the contract, according to the court, and alleges that DRPA nevertheless decided, in a closed-door meeting, to rewrite Corcon’s bid, and ultimately awarded that company the contract.

Hillman has blocked the DRPA from carrying out the project pending the outcome of the lawsuit.

Alpha alleges that the DRPA violated the so-called sunshine laws of each state, as well as constitutional equal protection and due process guarantees.

Hillman, partially denying the DRPA’s motion to dismiss, ruled on June 22 that Alpha’s equal protection and due process violation claims could proceed.

But he dismissed claims lodged under the New Jersey Open Public Meetings Act and Pennsylvania Sunshine Act, because the latter statute includes no affirmation that its requirements apply to the DRPA. In order for the laws to apply, both state governments must enact enabling legislation under the terms of the interstate compact, Hillman explained.

“The state of the law as it exists today … suggests that the [statutes] are not applicable to DRPA,” he said. “While the New Jersey legislature has expressed its intent that the NJOPMA apply to the DRPA, no clear expression to extend the PASA to DRPA has been made by the Pennsylvania legislature.”

“The court recognizes that the purpose of these ‘sunshine laws’ is to prevent, and remedy violations of, the very conduct Alpha alleges occurred, and indeed this court has found to occur, in this case,” Hillman said.

Hillman said sunshine laws “are of course good policy and should apply broadly,” and “there seems little reason to enforce such laws intrastate while at the same time exempt interstate compacts.”

“And the facts of this case and the findings of this Court surely demonstrate the cost, delay and harm—and the justifiable suspicion of malfeasance—that occurs when government acts in the dark,” the judge continued. “However, bridging that gap—and the Pennsylvania Legislature’s failure to apply the PASA to DRPA is a fairly gaping hole—is a legislative rather than a judicial function.”

Hillman added: “For reasons known only to them, Pennsylvania’s legislature has declined by inaction to extend the PASA to the operations of the DRPA, a declination that frustrates and, in effect, nullifies the New Jersey legislature’s contrary determination.”

The judge noted that DRPA amounted to a taxing authority, since it collects tolls.

“The traveling public has a right to know that such funds are spent fairly and wisely for the public good and not for the benefit of a favored few,” Hillman said, adding that the “world would be a better place” if the DRPA were to be held accountable.

Alpha’s attorney, Peter Torcicollo, issued a statement in response to the ruling, saying that Alpha would continue to pursue its equal protection and due process claims against the DRPA.

“While we appreciate the technical reasons for Judge Hillman’s dismissal of the sunshine law claims, we wholeheartedly agree with Judge Hillman that the public good would be better served by DRPA complying with the sunshine laws—which DRPA has failed to do,” said Torcicollo, of Gibbons in Newark.

The DRPA’s lawyer, Stewart Greenleaf of Elliott Greenleaf in Blue Bell, Pennsylvania., did not return a call seeking comment.