28
Opinion of the Court
Court made the ruling which [Fiore] now seeks to have applied to his case." Commonwealth v. Fiore, 445 Pa. Super. 401, 416, 665 A. 2d 1185, 1193 (1995).
6. Fiore sought federal habeas corpus relief. As we previously pointed out, supra, at 25, he argued that Pennsylvania had imprisoned him "for conduct which was not criminal under the statutory section charged." App. 194. The Federal District Court, acting on a Magistrate's recommendation, granted the petition. The Court of Appeals for the Third Circuit reversed, however, primarily because it believed that "state courts are under no constitutional obligation to apply their decisions retroactively." 149 F. 3d 221, 222 (1998).
7. We subsequently granted Fiore's petition for certiorari to consider whether the Fourteenth Amendment's Due Process Clause requires that his conviction be set aside.
II
Fiore essentially claims that Pennsylvania produced no evidence whatsoever of one element of the crime, namely, that he lacked "a permit." The validity of his federal claim may depend upon whether the interpretation of the Pennsylvania Supreme Court in Scarpone was always the statute's meaning, even at the time of Fiore's trial. Scarpone marked the first time the Pennsylvania Supreme Court had interpreted the statute; previously, Pennsylvania's lower courts had been divided in their interpretation. Fiore's and Scarpone's trial court concluded that § 6018.401(a)'s "permit" requirement prohibited the operation of a hazardous waste facility in a manner that deviates from the permit's terms, and the Superior Court, in adjudicating Fiore's direct appeal, accepted the trial court's interpretation in a summary unpublished memorandum. Then, the Commonwealth Court, in Scarpone's direct appeal, specifically rejected the interpretation adopted by the Superior Court in Fiore's case. And the Pennsylvania Supreme Court in Scarpone set forth
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