1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-1998

Phila Federation v. Ridge

Precedential or Non-Precedential:

Docket 97-1553,97-1589

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Recommended Citation

"Phila Federation v. Ridge" (1998). 1998 Decisions. Paper 176.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/176
Filed July 30, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NOS. 97-1553 and 97-1589 

PHILADELPHIA FEDERATION OF TEACHERS, AMERICAN 

FEDERATION OF TEACHERS, LOCAL 3, AFL-CIO; LOCAL 

22, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, 

AFL-CIO; DISTRICT COUNCIL 47, AMERICAN 

FEDERATION OF STATE, COUNTY AND MUNICIPAL 

EMPLOYEES, AFL-CIO, 

 Appellants No. 97-1553 

v. 

THOMAS J. RIDGE, in his official capacity as the 

Governor of the Commonwealth of Pennsylvania; JOHNNY 

BUTLER, in his official capacity as Secretary of Labor and 

Industry of the Commonwealth of Pennsylvania; RICHARD 

A. HIMLER, in his official capacity as Director of the 

Bureau of Workers' Compensation 

PHILADELPHIA FEDERATION OF TEACHERS, AMERICAN 

FEDERATION OF TEACHERS, LOCAL 3, AFL-CIO; LOCAL 

22, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, 

AFL-CIO; DISTRICT COUNCIL 47, AMERICAN 

FEDERATION OF STATE, COUNTY AND MUNICIPAL 

EMPLOYEES, AFL-CIO 

v. 

THOMAS J. RIDGE, in his official capacity as the 

Governor of the Commonwealth of Pennsylvania; JOHNNY 

BUTLER, in his official capacity as Secretary of Labor and 

Industry of the Commonwealth of Pennsylvania; RICHARD 

A. HIMLER, in his official capacity as Director of the 

Bureau of Workers' Compensation 
 Thomas J. Ridge, Governor of the Commonwealth 

 of Pennsylvania; Johnny J. Butler, Secretary of 

 Labor and Industry of the Commonwealth of 

 Pennsylvania; and Richard A. Himler, Director of 

 the Bureau of Workers' Compensation of the 

 Commonwealth of Pennsylvania, 

 Appellants No. 97-1589 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civil No. 96-cv-008051) 

Argued: March 20, 1998 

Before: BECKER, Chief Judge, RENDELL and 

HEANEY,* Circuit Judges 

(Filed July 30, 1998) 

 Deborah R. Willig 

 Ralph J. Teti 

 Catherine M. Reisman (Argued) 

 Willig, Williamson & Davidson 

 1845 Walnut Street, 24th Floor 

 Philadelphia, PA 19103 

 Attorneys for Appellants/ 

 Cross-Appellees 

 Paul F. Tufano 

 Roger E. Grimaldi (Argued) 

 Anthony S. Potter 

 Office of General Counsel 

 333 Market Street, 17th Floor 

 Harrisburg, PA 17101-2210 

 Attorneys for Appellees/ 

 Cross-Appellants 

_________________________________________________________________ 

*Honorable Gerald W. Heaney, United States Circuit Judge for the 

Eighth Circuit, sitting by designation. 

 2 
OPINION OF THE COURT 

BECKER, Chief Judge 

On June 24, 1996, Pennsylvania Governor Tom Ridge 

signed into law the Act of June 24, 1996, P.L. 350, No. 57 

("Act 57"), which substantially reformed Pennsylvania's 

system of workers' compensation. On December 4, 1996, 

the plaintiffs, three unincorporated labor organizations -- 

the Philadelphia Federation of Teachers, Local 3, AFL-CIO; 

Local 22 of the International Association of Firefighters, 

AFL-CIO; and District Council 47 of the American 

Federation of State, County, and Municipal Employees, 

AFL-CIO (collectively "plaintiffs") -- filed this action against 

the Governor; Johnny J. Butler, Secretary of Labor and 

Industry; and Richard A. Himler, Director of the Bureau of 

Workers' Compensation, in their official capacities, seeking 

a declaration that Sections 204(a) and 306(a.2) of the 

Pennsylvania Worker's Compensation Act, Act of June 2, 

1915, P.L. 736 ("WCA"), as amended by Act 57, violate the 

United States and Pennsylvania constitutions. The plaintiffs 

also sought an injunction permanently enjoining the

defendants from enforcing these sections. They rely upon 

42 U.S.C. S 1983. 

The defendants moved to dismiss plaintiffs' complaint for 

lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), 

and for failure to state a claim upon which relief could be 

granted, Fed. R. Civ. P. 12(b)(6). With regard to their Rule 

12(b)(1) motion, the defendants argued that the district 

court lacked jurisdiction because: (1) the matter is not ripe 

for judicial review; (2) plaintiffs lack standing to pursue 

their claims; and (3) plaintiffs' claims are barred by the 

Eleventh Amendment of the United States Constitution. The 

district court granted the Motion to Dismiss, basing its 

holding on the conclusion that plaintiffs' claims were not 

ripe and, therefore, did not present a justiciable 

controversy. The court rejected defendants' argument that 

plaintiffs' complaint is barred by the Eleventh Amendment, 

and declined to address whether plaintiffs had standing or 

whether they had stated proper claims for relief. 

 3 
Plaintiffs filed a timely appeal, contending that the 

district court erred in holding that their claims were not 

ripe. Defendants cross-appealed, seeking review of the 

district court's refusal to dismiss plaintiffs' complaint based 

upon the Eleventh Amendment's jurisdictional bar. We have 

jurisdiction under 28 U.S.C. S 1291 and exercise plenary 

review over the district court's order dismissing plaintiffs' 

complaint for lack of subject matter jurisdiction. See 

Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 410 

(3d Cir. 1992). We affirm on the ground that the dispute is 

not justiciable because plaintiffs have failed to demonstrate 

a controversy ripe for resolution by the federal courts. We 

therefore decline to reach the issues raised by the crossappeal. 

I. THE CHALLENGED PROVISIONS 

A. The Impairment Rating (Procedural Due Process Claim) 

Section 4 of Act 57 amended Section 306 of the WCA to 

add section 306(a.2), 77 P.S. S 511.2 (West Supp. 1997), 

permitting employers to require an employee to submit to 

an impairment rating evaluation after the employee receives 

total disability benefits for 104 weeks. See 77 P.S. 

S 511.2(1). Pursuant to section 511.2, an impairment rating 

evaluation is performed by a licensed physician chosen by 

the parties or appointed by the Department of Labor and 

Industry (the "Department"). See id. The purpose of the 

evaluation is to determine the level of the employee's 

impairment rating. If the employee's impairment rating is 

fifty percent or greater under the American Medical

Association's Guide to the Evaluation of Permanent 

Impairment, he or she remains classified as "totally 

disabled." See S 511.2(2). If, however, the examination 

results in an impairment rating that is less thanfifty 

percent, the employee is reclassified as "partially disabled." 

See id. 

The change in status from "totally disabled" to "partially 

disabled" does not automatically affect the amount of 

compensation that the insurer must pay the employee. 

Rather, the Act provides that "[u]nless otherwise 

adjudicated or agreed to based upon a determination of 

 4 
earning power under [S 512(2)], the amount of 

compensation shall not be affected as a result of the change 

in disability status and shall remain the same." See 

S 511.2(3). The change in status does, however, affect the 

length of time that a claimant may receive workers'

compensation benefits. An employee who is classified as 

"totally disabled" is entitled to collect benefits for as long as 

he or she remains classified as such. An employee with a 

partial disability, however, is eligible to receive benefits only 

for a period of 500 weeks, or approximately ten years. See 

S 511.2(7). 

Before changing an employee's disability status, an

employer must provide the employee with sixty days notice 

that his or her impairment rating evaluation showed that 

the employee was less than fifty percent impaired. See 

S 511.2(2). The Act also provides that "[a]n employee may 

appeal the change to partial disability at any time during 

the five hundred-week period of disability; Provided, That 

there is a determination that the employee meets the 

threshold impairment rating that is equal to or greater than 

fifty percentum impairment . . .." S 511.2(4). 

Plaintiffs seek a declaration that, on its face, WCA 

S 306(a.2), 77 P.S. S 511.2, violates the due process clauses 

of the United States and Pennsylvania constitutions, U.S. 

Const. amend. XIV; Pa. Const., art. 1, S 1. Although the Act 

provides employees whose status is changed to partially 

disabled the right to appeal their change in status, see 77 

P.S. S 511.2(4), plaintiffs maintain that the procedures that 

will ultimately be employed by the Department during this 

"appeal process" will deprive their members of the right to 

procedural due process of law. Plaintiffs rest this claim on 

the fact that the term "appeal" is not defined in the statute 

and that, typically, an appeal to the Worker's 

Compensation Board, as opposed to a hearing, does not 

involve a fact-finding procedure and de novo adjudication. 

Plaintiffs further allege that the Act is rendered facially 

unconstitutional by the fact that the appeal process 

contained in S 511.2(4) is only available following a 

determination that the employee is equal to or greater than 

fifty percent impaired. 77 P.S. S 511.2(4). Plaintiffs also 

seek to enjoin enforcement of the statute. 

 5 
B. The Pension Offset (Contracts Clause Claim) 

Section 3 of Act 57 amended Section 204(a) of the WCA 

to provide that benefits from a pension plan -- to the extent 

funded by the employer directly liable for the payment of 

wage replacement compensation received by a claimant-- 

shall be credited against the amount of the award to the 

claimant for wage replacement benefits based on injury or 

occupational disease.1 See 77 P.S. S 71(a) (West Supp. 

1997). The plaintiffs contend that the offset for pension 

benefits violates the contracts clause of both the United 

States and Pennsylvania constitutions, U.S. Const. art. I, 

S 10, cl. 1; Pa. Const. art I, S 17, by unilaterally diminishing 

the contractual pension rights of public sector employees 

by reducing the value of their pension benefits. Again, 

plaintiffs seek declaratory relief and an injunction. 

II. RIPENESS 

"The existence of a case and controversy is a prerequisite 

to all federal actions, including those for declaratory or 

injunctive relief." Presbytery of New Jersey of Orthodox 

Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 

1994). One aspect of justiciability is ripeness which 

"determines when a proper party may bring an action."2 

Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1154 (3d Cir. 

1995) (quoting Armstrong, 961 F.2d at 411). The function of 

the ripeness doctrine is to prevent federal courts,"through 

avoidance of premature adjudication, from entangling 

themselves in abstract disagreements." Abbott Labs v. 

_________________________________________________________________ 

1. Prior to the enactment of section 3 of Act 57, the Act allowed 

employers to offset the amount of workers' compensation benefits 

payable by the amount of unemployment compensation benefits paid to 

the claimant. See 77 P.S. S 71 (West 1992). Act 57 continues to allow 

employers to offset workers' compensation benefits by unemployment 

benefits, but it also permits employers to offset Social Security 

benefits, 

severance benefits, and pension benefits. See 77 P.S. S 71(a) (West Supp. 

1997). 

2. As noted above, the district court declined to address defendants' 

challenge to plaintiffs' standing. We too will not address this question, 

and assume for the purposes of this discussion that plaintiffs have 

standing. 

 6 
Gardner, 387 U.S. 136, 148 (1967), overruled on other 

grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977).3 

Further, "[w]e presume that federal courts lack jurisdiction 

unless the contrary appears affirmatively from the record." 

Renne v. Geary, 501 U.S. 312, 316 (1991) (internal 

quotations marks and citations omitted). It is the plaintiffs' 

responsibility to clearly allege facts that invoke the court's 

jurisdiction. See id. 

In Abbott Labs, the Supreme Court established a twopart test for determining whether a prayer for a declaratory 

judgment is ripe. A court should look to (1) "thefitness of 

the issues for judicial decision," and (2) "the hardship to 

the parties of withholding court consideration." 387 U.S. at 

149; Texas v. United States, 118 S. Ct. 1257, 1260 (Mar. 

31, 1998).4 Under the "fitness for review" inquiry, a court 

considers whether the issues presented are purely legal, as 

_________________________________________________________________ 

3. In this respect, the ripeness doctrine is closely related to the case 

or 

controversy requirement of Article III of the United States Constitution. 

See United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1231 & n.6 

(3d Cir. 1977). Just how closely related, however, is not entirely clear. 

As 

we have previously noted: 

 There is some disagreement among courts and commentators as to 

 whether the ripeness doctrine is grounded in the case or 

controversy 

 requirement or is better characterized as a prudential limitation 

on 

 federal jurisdiction. . . . But regardless whether the ripeness 

 doctrine has a prudential component, it seems clear that it is at 

 least partially grounded in the case or controversy requirement. 

See Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411 n.12 (3d 

Cir. 1992) (citations omitted). 

Thus, while we believe that an argument can be made that plaintiffs' 

claims do not present the type of case or controversy to which federal 

courts are limited, we need not pursue this inquiry separately, since it 

is subsumed within our ripeness analysis. 

4. In Step-Saver Data Sys., Inc. v. Wyse Technology, 912 F.2d 643 (3d 

Cir. 1990), we offered a three-part inquiry as a refinement of the 

Supreme Court's test. Our inquiry focuses on: (1) the adversity of the 

parties' interests; (2) the conclusiveness of the judgment; and (3) the 

utility of the judgment. 912 F.2d at 647. Our refinement simply alters 

the headings under which various factors are grouped, and since StepSaver, we have employed both tests. Compare Artway v. Attorney General 

of N.J., 81 F.3d 1235, 1247 (3d Cir. 1996) (two-part test), and New 
Hanover Tp. v. United States, 992 F.2d 470, 472 (3d Cir. 1993) (same) 

with Armstrong, 961 F.2d at 41 (three-part test), and Travelers Ins., 72 

F.3d at 1154 (same). We apply the Supreme Court's two-part test 

because we find that its framework better accommodates our analysis in 

this case. 

 7 
opposed to factual, and the degree to which the challenged 

action is final. The various factors that enter into a court's 

assessment of fitness include: whether the claim involves 

uncertain and contingent events that may not occur as 

anticipated or at all; the extent to which a claim is bound 

up in the facts; and whether the parties to the action are 

sufficiently adverse. See Riva v. Massachusetts, 61 F.3d 

1003, 1009-10 (1st Cir. 1995). 

The second prong focuses on the hardship that may be 

entailed in denying judicial review, and the determination 

whether any such hardship is cognizable turns on whether 

the challenged action creates a "direct and immediate" 

dilemma for the parties, such that the lack of preenforcement review will put the plaintiffs to costly choices. 

See Abbott Labs., 387 U.S. at 152; W.R. Grace & Co. v. EPA, 

959 F.2d 360, 364 (1st Cir. 1992). 

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

Plaintiffs allege that WCA S 304(a.2) is unconstitutional 

because it does not, on its face, afford their members a 

meaningful opportunity to be heard regarding the change in 

their disability status from "totally" to "partially" disabled. 

Since this change in status will lead directly to the 

termination of benefits after a 500 week period, plaintiffs 

allege that, by action of the statute, their members will be 

deprived of their property (i.e. the compensation benefits) 

without due process of law.5 The district court concluded 

_________________________________________________________________ 

5. As noted above, this assertion rests on plaintiffs' interpretation of 

the 

appeal process provided in section 304(a.2)(4), 77 P.S. S 512.2(4), which 

they contend does not provide for a de novo hearing reviewing the 

change in disability status. Plaintiffs' interpretation is undermined by 

the 

regulations promulgated by the Pennsylvania Department of Labor and 

Industry interpreting Act 57 which became effective on January 17, 

1998, after the district court had issued its order. The section of the 

regulations which implements the appeal provision of section 306(a.2), 

provides that: 

 At any time during the receipt of 500 weeks of partial disability 

 compensation, the employe may appeal the adjustment of benefit 

 status to a workers' compensation judge by filing a Petition for 

 Review. 

 8 
that review of plaintiffs' claim was premature because, as a 

result of various contingencies, the court could not be 

certain that the statute would necessarily operate against 

any of the unions' members.6 

We are inclined to disagree with the district court that 

there is uncertainty regarding whether the statute will ever 

operate against any of the plaintiffs' members; rather, we 

find persuasive plaintiffs' argument that such an 

eventuality is almost certain. There is, however, a great deal 

of uncertainty regarding how the statute will operate 

against plaintiffs' members. It is this uncertainty that 

renders the claim unfit for judicial review. Plaintiffs ask the 

_________________________________________________________________ 

34 Pa. Code S 123.105(f). Under the WCA, an employee filing a petition 

for review is entitled to a prompt hearing. See 77 P.S. S 710 (West 1992). 

The workers' compensation judge assigned to the case is charged with 

holding a full evidentiary hearing, making findings of fact, conclusions 

of 

law, and ultimately determining whether a change in disability status 

was in accordance with the terms of section 306(a.2). See 77 P.S. S 833, 

834 (West 1992 & West Supp. 1997). Further, any party aggrieved by a 

workers' compensation judge's ruling has a right to appeal to the 

Workers' Compensation Appeal Board. See 77 P.S. S 853. A party 

aggrieved by the Appeal Board's decision has a right to appeal to the 

Commonwealth Court of Pennsylvania, see 42 P.S. S 763, and a party 

aggrieved by that decision has the right to seek permission to appeal to 

the Supreme Court of Pennsylvania, see 42 P.S. S 724. 

6. The contingencies relied upon by the district were that, in order for 

plaintiffs' members to be subject to the provisions of Section 306(a.2): 

(1) 

one of the members must suffer a compensable work-related injury after 

the effective date of Act 57, (2) the same member must be classified as 

totally disabled, (3) such total disability must continue for a period of 

104 weeks and not be changed because of the insurer's successful 

demonstration of earning power, (4) after the member's receipt of 104 

weeks of total disability benefits, the insurer must request that the 

member submit to an impairment rating evaluation, (5) the evaluation 

must result in an impairment rating of less than 50% under the 

American Medical Association's Guides to the Evaluation of Permanent 

Impairment, (6) the insurer must adjust the disability status of the 

member from total to partial, and (7) the member must, over a period of 

500 weeks, be unable to demonstrate that the impairment is greater 

than 50%. See Philadelphia Fed. of Teachers v. Ridge, 1997 WL 364397, 

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

 9 
court to declare constitutionally deficient procedures that 

have yet to be applied. Such a judgment would be 

premature. Rather, we believe that review of plaintiffs' 

procedural due process claim must be done in the context 

of a specific factual setting. 

Our conclusion is buttressed by Judge Calabresi's recent 

decision in Thomas v. City of New York, ___ F.3d ___, 1998 

WL 210679 (2d Cir. Apr. 28, 1998). There, the court

considered, inter alia, a due process challenge to the 

procedures set forth in a new local law governing the 

licensing procedures for livery cab base stations. The court 

concluded that this claim was not ripe for judicial review 

since 

 None of the plaintiffs has, to date, been denied a 

 license. And, while on the face of [the new law] and its 

 regulations, no proceedings -- either written findings 

 or oral hearings -- are mandated prior to the denial of 

 licenses or of license renewals, we do not know at this 

 time what procedures [the agency] will in fact follow 

 before denying licenses. It follows that a claim that a 

 base station operator has been denied a license 

 renewal without procedural due process is best 

 considered in the context of a specific factual setting. 

1998 WL 210679, at * 2; see also Texas v. United States, 

118 S. Ct. at 1260 ("Here, as is often true,`[d]etermination 

of the scope of . . . legislation in advance of its immediate 

adverse effect in the context of a concrete case involves too 

remote and abstract an inquiry for the proper exercise of 

the judicial function.' " (quoting Longshoremen v. Boyd, 347 

U.S. 222, 224 (1954)). 

We might still review plaintiffs' procedural due process 

claim despite our conclusion that it is best considered in 

the context of a specific factual setting if denial of preenforcement review would work a significant hardship to 

the plaintiffs.7 In this case, however, we discern no 

_________________________________________________________________ 

7. Whether ripeness requires that both parts of the test be satisfied is a 

matter of some uncertainty. See Ernst & Young v. Depositors Econ. 

Protection Corp., 45 F.3d 530, 535 (1st Cir. 1995) ("The relationship 

between [the] two parts of the test -- fitness and hardship -- has never 

 10 
hardship that will result from withholding review of the 

constitutionality of WCA S 304(a.2) until a court is able to 

review the procedures actually employed by the 

Department. Even assuming that an employee is deprived 

of his or her due process rights in the future by those 

procedures, the change in disability status will not affect 

the level of benefits provided to the employee for five 

hundred weeks. See 77 P.S. S 512.2 (7). The employee will, 

therefore, have ample time to challenge the constitutionality 

of the procedures employed before being deprived of any 

benefits. 

B. The Pension Offset (Contract Clause Claims) 

Plaintiffs allege that section 204(a) of the WCA, on its 

face, violates the contract clauses of both the United States 

and Pennsylvania constitutions. This claim, which is 

predominately legal, is arguably fit for review. However, 

even "the presence of `a purely legal question' is not 

enough, of itself, to render a case ripe for judicial review, 

not even as to that issue." Armstrong, 961 F.2d at 421 

(quoting Office of Communications of the United Church of 

Christ v. FCC, 826 F.2d 101, 105 (D.C. Cir. 1987)). Rather, 

the plaintiffs must still demonstrate that they face a real 

and immediate threat of injury from the denial of preenforcement review of the merits. See id. at 421-22. In the 

absence of such hardship, the better course is for a federal 

court to wait until the claim is raised in a specific factual 

setting since this will almost universally aid in review. As 

Judge Easterbrook recently opined in a not dissimilar 

situation: "if anticipatory review is not essential to avoid 

hardship, then courts should defer review, in order to 

obtain the benefits of the more focused presentation made 

possible by a concrete application of the rules." Illinois 

Council on Long Term Care, Inc. v. Shalala, ___ F.3d ___, 

_________________________________________________________________ 

been precisely defined."). The majority view is that both prongs of the 

test must ordinarily be satisfied in order to establish ripeness, with the 

caveat that there exists "the possibility that there may be some sort of 

sliding scale under which, say, a very powerful exhibition of immediate 

hardship might compensate for questionable fitness. . . or vice versa." 

See id. (collecting citations). We need not consider the issue here. 

 11 
1998 WL 228063, * 6 (7th Cir. May 8, 1998) (citing Texas 

v. United States, supra.) 

In the instant case, even applying the usual standards 

for construing the allegations of a complaint which give the 

plaintiff the benefit of all favorable inferences, plaintiffs 

have failed to meet their burden of alleging facts sufficient 

to demonstrate a threat of direct and immediate hardship 

stemming from the lack of pre-enforcement review. Rather, 

plaintiffs simply aver, in conclusory terms, that "[a]s a 

result of the passage of Section 3 of Act 57, the Plaintiffs' 

members are suffering immediate and/or threatened injury 

. . . ." (Compl. PP 46, 54). Plaintiffs do not, however, allege 

any facts that support this legal conclusion by 

demonstrating the actual and immediate harm they or their 

members suffer from Section 204(a) of the WCA. 

Plaintiffs, in their briefing, do assert a direct and 

immediate harm to their members. There, plaintiffs contend 

that section 204(a) creates an uncertainty regarding their 

members' future income streams since their members 

cannot be sure that they will receive full pension benefits 

and full workers' compensation benefits if they have the 

misfortune of being injured on the job. The argument that 

this uncertainty constitutes a cognizable harm for purposes 

of ripeness analysis is based on the Court of Appeals' 

decision in Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 

1995). Riva involved a claim that the Massachusetts

accidental disability retirement scheme violated the Age 

Discrimination in Employment Act. The challenged portion 

of the statute provided that disability benefits would be 

reduced at age sixty-five for retired public employees with 

less than ten years creditable service who were overfiftyfive at the time of their accidental disability retirement. The 

court found that the statute was ripe for review even 

though it would not directly affect the plaintiff for several 

years. The plaintiff, Robert Keenan, had already been 

declared permanently disabled at the age of fifty-six and 

had received notice that his benefits would be reduced 

when he turned age sixty-five by operation of the 

challenged statute. In applying the Abbott Labs framework, 

the court found that the hardship prong was satisfied 

because the uncertainty about the validity of the statute 

 12 
made it impossible for Keenan, then age fifty-eight, 

"prudently to arrange his fiscal affairs" in anticipation of his 

retirement years. 61 F.3d at 1012. 

We believe that Riva is distinguishable from the instant 

case. The Riva court had before it a plaintiff who had 

already been declared permanently disabled and who would 

be adversely affected by the statute at the time when he 

turned sixty-five unless the statute was repealed or 

amended, or unless he died. 61 F.3d at 1010-11. Here, we 

have no such plaintiff, and thus no one has suffered as 

"direct and immediate" an injury as Keenan. Moreover, Riva 

involved much less hardship then was present in Abbott 

Labs, where the regulation at issue had a "direct effect on 

the day-to-day business" of the plaintiffs, who were 

compelled to affix required labeling to their products under 

threat of criminal sanction. See 387 U.S. at 153. We are not 

convinced, therefore, that the finding of hardship in Riva is 

supportable. However, even if it is, the hardship asserted in 

this case is one step removed even from Riva, and that step 

is one that we decline to take. 

Thus, we conclude that review of the constitutionality of 

Section 204(a) by a federal court, like review of Section 

306(a.2), should be reserved until such time as the court is 

presented with a concrete factual situation. We note, also, 

that that day is likely not too far off. As of June 24, 1998, 

it has been 104 weeks since the effective date of Act 57 and 

thus presumably some employee has appealed (or soon will 

appeal) a change in his or her disability status, thus 

triggering the review process set forth in 77 P.S.S 511.2 

and the applicable regulations. We also assume that the 

pension offset provision has been, or soon will be, utilized. 

The order of the district court, dismissing without

prejudice plaintiffs' complaint on the ground that it did not 

present a controversy ripe for resolution, will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 13