                                                  NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
              ________________

                     No. 14-2935
                  ________________

    CITIZENS FOR PENNSYLVANIA’S FUTURE,
                           Appellant

                           v.

  PITTSBURGH WATER & SEWER AUTHORITY;
           CITY OF PITTSBURGH


  PITTSBURGH WATER & SEWER AUTHORITY,
                               Third Party Plaintiff

                           v.

            THE BUNCHER COMPANY,
                                             Third Party Defendant

                  ________________

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
        (D. C. Civil Action No. 2-12-cv-00943 )
     Magistrate Judge: Honorable Robert C. Mitchell
                  ________________


              Argued on April 29, 2015

Before: FISHER, HARDIMAN and ROTH, Circuit Judges

          (Opinion filed: October 27, 2015)
Heather M. Langeland, Esquire
Citizens for Pennsylvania’s Future
200 First Avenue, Suite 200
Pittsburgh, PA 15219

Kurt J. Weist, Esquire           (Argued)
PennFuture
610 North Third Street
Harrisburg, PA 17101

                           Counsel for Appellant

Danny P. Cerrone, Jr., Esquire
Mark F. Nowak, Esquire
David G. Ries, Esquire           (Argued)
Clark Hill
301 Grant Street
One Oxford Centre, 14th Floor
Pittsburgh, PA 15219

                           Counsel for Appellee Pittsburgh Water & Sewer Authority

Michael E. Kennedy, Esquire
City of Pittsburgh
Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219

                           Counsel for Appellee City of Pittsburgh

Joseph F. McDonough, Esquire
James G. McLean, Esquire
Buchanan Ingersoll & Rooney
301 Grant Street
One Oxford Centre, 20th Floor
Pittsburgh, PA 15219

                           Counsel for Appellee The Buncher Company




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                                   ________________

                                       OPINION*
                                   ________________

ROTH, Circuit Judge

       Citizens for Pennsylvania’s Future (CPF) appeals the District Court’s grant of

summary judgment in favor of the Pittsburgh Water & Sewer Authority and the City of

Pittsburgh (collectively PWSA) in connection with CPF’s citizen suit for alleged

violations of the Clean Water Act and Pennsylvania Clean Streams Law. CPF argues that

the Magistrate Judge1 (1) improperly granted summary judgment on a ground not raised

by PWSA, (2) erred in granting summary judgment because failure to enforce an

ordinance adopted pursuant to the EPA permit for discharge of storm water run-off is an

actionable violation of the permit, and (3) abused his discretion in denying CPF’s motion

to reconsider. For the reasons that follow, we will vacate the District Court’s order

granting summary judgment and remand the case to the District Court to determine

whether the 2010 Ordinance was incorporated into, a condition of, or a requirement for

compliance with, the Permit.

                                             I.

       This action arises from CPF’s citizen suit alleging that PWSA and the City

violated the Permit by failing to enforce provisions of the 2010 Ordinance in connection



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
 All parties consented to jurisdiction before the Magistrate Judge. See 28 U.S.C. § 636
et seq.
                                             3
with the Eleventh Street Project. The Eleventh Street Project is a redevelopment project

undertaken by The Buncher Company in downtown Pittsburgh. CPF contends in the suit

that the 2010 Ordinance was passed pursuant to the Permit, and therefore its non-

enforcement gives rise to a cause of action under the CWA.

       On September 9, 2013, PWSA filed a motion for summary judgment on the

ground that the 2010 Ordinance “is not incorporated into, a condition of, or requirement

for compliance of the Permit.”2 PWSA asserted that, while the 2007 Ordinances

“became part of the [Permit]” upon their adoption, the 2010 Ordinance was independent

of the Permit. In its response brief, CPF acknowledged that its claim rests on the 2010

Ordinance only and argued that the 2010 Ordinance, like the 2007 Ordinances, is part of

the stormwater management program under the Permit. On December 27, 2013, the

Magistrate Judge “temporarily denied” summary judgment “as to the application of the

2010 Ordinance” because the parties did not cite to any legal authority to support their

arguments.3 The Magistrate Judge directed PWSA “to file a renewed motion and brief in

support of summary judgment as to this claim only.”4

       On January 31, 2014, PWSA filed a renewed motion for summary judgment, again

arguing that the 2010 Ordinance “is not incorporated into, a condition of, or requirement

for compliance of the Permit at issue in this case.”5 PWSA argued that the 2010

Ordinance imposed requirements that were not included in PADEP’s model ordinance,

2
  J.A. 69.
3
  Citizens for Pennsylvania’s Future v. Pittsburgh Water & Sewer Auth., No. 12-943,
2013 WL 6838690, at *7 (W.D. Pa. Dec. 27, 2013).
4
  J.A. 174.
5
  J.A. 176.
                                             4
PADEP had not approved the 2010 Ordinance, and the Permit had not been modified or

amended to add the requirements of the 2010 Ordinance. CPF responded that while the

2010 Ordinance exceeded the minimum requirements of PADEP’s model ordinance, it

was not independent of the Permit and required no separate approval to become part of

the stormwater management program.

       On April 7, 2014, the Magistrate Judge granted PWSA’s renewed motion with

respect to the CWA claim. The Magistrate Judge did not address the issue of the 2010

Ordinance’s applicability. Instead, he considered “whether an alleged violation of the

2010 Ordinance enacted pursuant to the [Permit] equates to a violation of the [Permit]

itself, and thus defies the CWA.”6 The Magistrate Judge held that the plain language of

the Permit does not impose a condition “that if the ordinances are violated that this results

in a violation of the permit itself.”7

       On May 5, 2014, CPF filed a motion for reconsideration, asserting that the

Magistrate Judge decided a different issue than the one presented, and did so erroneously

because the Permit and CWA require compliance with all terms and conditions of the

Permit. The next day, the Magistrate Judge entered an order denying the motion without

an opinion. CPF appealed.

                                            II.8



6
  Citizens for Pennsylvania’s Future v. Pittsburgh Water & Sewer Auth., 13 F. Supp. 3d
493, 498 (W.D. Pa. 2014).
7
  Id. at 500.
8
  The District Court had jurisdiction over CPF’s federal law claim pursuant to 28 U.S.C.
§ 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                                             5
       District courts may grant summary judgment on grounds not raised by a party after

placing the non-moving party on notice and providing it with “an opportunity to present

relevant evidence in opposition to that motion.”9 Notice is satisfied if “the targeted party

had reason to believe the court might reach the issue and received a fair opportunity to

put its best foot forward.”10 We have recognized an exception to the notice requirement

in cases where summary judgment is granted sua sponte and the following conditions are

present: “(1) the point at issue is purely legal; (2) the record was fully developed[;] and

(3) the failure to give notice does not prejudice the party.”11

       PWSA’s original and renewed motions for summary judgment focused on whether

the 2010 Ordinance applied to the Eleventh Street Project as part of the Permit. PWSA

characterized the 2010 Ordinance as independent of the Permit, and therefore not

enforceable under the Permit. Even on appeal, PWSA maintains it is entitled to summary

judgment because “(a) [CPF] failed to establish any legal or factual basis for its claim




        We exercise plenary review over the District Court’s order granting summary
judgment. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010).
“We review a denial of a motion for reconsideration for abuse of discretion, but we
review the District Court’s underlying legal determinations de novo and factual
determinations for clear error.” Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc.,
602 F.3d 237, 246 (3d Cir. 2010) (citation omitted).
9
  Chambers Dev. Co. v. Passaic Cnty. Utils. Auth., 62 F.3d 582, 584 n.5 (3d Cir. 1995);
see Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); Fed. R. Civ. P. 56(f).
10
   Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215, 223 (3d Cir.
2004) (quoting Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir. 1999)) (internal
quotation marks omitted).
11
   Id. at 219.
                                              6
that the 2010 Ordinance is enforceable under the Permit and (b) the applicability of the

2010 Ordinance is an essential element of [CPF]’s prima facie case.”12

       Despite the parties’ singular focus on the 2010 Ordinance’s applicability, the

Magistrate Judge resolved a different question: whether failure to enforce the standards

of the 2010 Ordinance – assuming it applied – constitutes a violation of the Permit. The

Magistrate Judge held that under the Permit’s terms, failure to enforce an ordinance does

not constitute a Permit violation.13

       Because CPF did not have “reason to believe the court might reach the issue” and

did not “receive[ ] a fair opportunity to put [its] best foot forward[,]”14 the Magistrate

Judge erred in granting summary judgment on this ground without providing CPF with

notice and a reasonable opportunity to respond.15

       While we have the discretion to consider whether the District Court’s decision

may be affirmed on alternative grounds supported by the record, we need not do so.16

Here, because the record is not sufficiently developed and the District Court never

addressed the specific question of whether the 2010 Ordinance was incorporated into,

was a condition of, or a requirement for compliance with, the Permit, we decline to

consider whether the entry of judgment for PWSA should be affirmed on this ground.

12
   PWSA Br. at 17; see also PWSA Br. at 24 (“The core issue for summary judgment is
the applicability of the 2010 Ordinance.”).
13
   Citizens for Pennsylvania’s Future, 13 F. Supp. 3d at 500.
14
   Gibson, 355 F.3d at 223 (quoting Leyva, 171 F.3d at 720) (internal quotation marks
omitted).
15
   We also find that the Magistrate Judge erred in denying CPF’s motion for
reconsideration. See Max’s Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
16
   See Langer v. Monarch Life Ins. Co., 966 F.2d 786, 807-08 (3d Cir. 1992); see also
Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d 86, 97 (3d Cir. 2008).
                                              7
Instead, we remand to the District Court to answer this question in the first instance, after

such briefing, argument, and discovery as it considers necessary.

                                             III.

       For the foregoing reasons, we will vacate the District Court’s summary judgment

order and remand for further proceedings.




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