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No. 98-942. Argued October 12, 1999-Decided November 30,1999

Petitioner Fiore and his codefendant Scarpone were convicted of "operat[ing] a hazardous waste" facility without a "permit," Pa. Stat. Ann., Tit. 35, § 6018.401(a), because their operation deviated significantly from the terms of the permit they possessed. Fiore appealed his conviction to the Pennsylvania Superior Court, which affirmed; but Scarpone appealed his conviction to the Pennsylvania Commonwealth Court, which reversed. The Pennsylvania Supreme Court denied further review of Fiore's case, and his conviction became final. However, it subsequently affirmed the Commonwealth Court's decision in Scarpone's case, finding that § 6018.401(a) does not apply to those who possess a permit but deviate radically from the permit's terms. Mter the Pennsylvania courts refused to reconsider Fiore's identical conviction, he sought federal habeas relief, arguing, inter alia, that the Federal Constitution required that his conviction be set aside because his conduct was not criminal under § 6018.401(a). The District Court granted his petition, but the Third Circuit reversed, primarily because it believed that state courts have no obligation to apply their decisions retroactively.

Held: To help determine the proper state-law predicate for this Court's determination of the federal constitutional questions raised here, the Court certifies to the Pennsylvania Supreme Court the question whether the interpretation of § 6018.401(a) set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112, states the correct interpretation of Pennsylvania law at the date Fiore's conviction became final. Scarpone marked the first time that the Pennsylvania Supreme Court had interpreted the statute. Because that authoritative interpretation came only after Fiore's conviction became final, this Court must know whether the Scarpone construction stated the statute's correct understanding at the time Fiore's conviction became final, or whether it changed the interpretation then applicable. Judgment and further proceedings in this case are reserved pending receipt of the Pennsylvania Supreme Court's response. Pp. 28-30.

149 F.3d 221, question certified.

BREYER, J., delivered the opinion for a unanimous Court.


James Brandon Lieber argued the cause for petitioner.

With him on the briefs were M. Jean Clickner and Harold Gondelman.

Robert A. Graci, Assistant Executive Deputy Attorney General of Pennsylvania, argued the cause for respondents. With him on the brief were D. Michael Fisher, Attorney General, pro se, and Andrea F. McKenna, Senior Deputy Attorney General. *

JUSTICE BREYER delivered the opinion of the Court.

The Commonwealth of Pennsylvania convicted codefendants William Fiore and David Scarpone of violating a provision of Pennsylvania law forbidding any person to "operate a hazardous waste" facility without a "permit." Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993) (reprinted at Appendix A, infra). Each codefendant appealed to a different intermediate state court, one of which affirmed Fiore's conviction, the other of which reversed Scarpone's. The Pennsylvania Supreme Court denied further review of Fiore's case, and his conviction became final. However, that court agreed to review Scarpone's case, and it subsequently held that the statutory provision did not apply to those who, like Scarpone and Fiore, possessed a permit but deviated radi-

*Saul M. Pilchen, Peter Goldberger, and Lisa Bondareff Kemler filed a brief for the National Association of Criminal Defense Lawyers urging reversal.

A brief of amici curiae urging affirmance was filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, Michael B. Billingsley, Assistant Attorney General, Dan Schweitzer, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark L. Earley of Virginia, and Christine O. Gregoire of Washington.

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