Blanche Road Corp. v. Bensalem Township

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

5-26-1995

Blanche v Bensalem
Precedential or Non-Precedential:

Docket 94-1344

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Recommended Citation
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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 94-1344 & 1362

BLANCHE ROAD CORPORATION, A PENNSYLVANIA
CORPORATION, GENERAL PARTNER AND TRADING AS
BLANCHE ROAD ASSOCIATES, I, A PENNSYLVANIA
LIMITED PARTNERSHIP

v.

BENSALEM TOWNSHIP; DAVID GARY COSTELLO; JOSEPH FRANCANO;
JOHN J. MAHER, JR.; JOSEPH RYAN; PATRICIA A. ZAJAC; JAMES
NOLAN; CHARLES W. SEEBERGER; THOMAS J. WALLS; CARMEN
RADDI; NANDI THAKURIA; HERBERT T. SCHEUREN, JR.,
INDIVIDUALLY AND D/B/A ENVIRONMENTAL ENGINEERING
KINETICS INTERNATIONAL, INC. D/B/A E.E.K.I., INC.
D\B\A DELAWARE VALLEY CONSULTING ENGINNERS, INC.;
LILLIAN E. STEINER; DANIEL D. STAERK; WILLIAM
RICHARD OETTINGER; EMIL F. TOFTEN, ESQUIRE;
JAHN ROOS LANDIS, ESQUIRE

Blanche Road Corporation,
Appellant in 94-1344

Bensalem Township, David Gary Costello (in his official
capacity), Joseph Franco, John J. Maher, Jr. (in his
official capacity), Joseph Ryan (in his official
capacity), Patricia A. Zajac, James Nolan, Charles
Seeberger, Thomas Walls, Carmen Raddi, Lillian E.
Steiner, Daniel D. Staerk, William Richard Oettinger,
Emil F. Toften, Esquire, and Jahn Roos Landis, Esquire

Appellants in 94-1362

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 89-cv-09040)

Argued December 6, 1994

Before: STAPLETON, ROTH and LEWIS, Circuit Judges
 (Opinion Filed May 26, l995 )

Richard S. Schlegel, Esq.
Peter Hearn, Esq.
Barbara W. Mather, Esq. (Argued)
Edmund B. Spaeth, Jr., Esq.
Pepper, Hamilton & Scheetz
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799

Jan Z. Krasnowiecki, Esq.
Alan K. Cotler, Esq.
Klett, Lieber, Rooney & Schorling, P.C.
2880 One Logan Square
18th & Cherry Streets
Philadelphia, PA 19103

Attorneys for Appellant/Cross-Appellee

William Goldstein, Esq. (Argued)
I. Leonard Hoffman, Esq.
Groen, Laveson, Goldberg & Rubenstone
Suite 200
Four Greenwood Square
Bensalem, PA 19020

Attorneys for Appellees/Cross Appellants
Costello, Maher, Jr. and Ryan

Robert St. Leger Goggin, Esq. (Argued)
L. Rostaing Tharaud, Esq.
William L. Banton, Jr., Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103

Attorneys for Appellees/Cross Appellants
Township of Bensalem, Francano, Ryan, Nolan,
Seeberger, Walls, Raddi, Steiner, Staerk, Toften,
Landis and Zajac

OPINION OF THE COURT
ROTH, Circuit Judge:

This appeal arises from a § 1983 action brought by

Blanche Road Associates (Blanche Road) and its general partner,

Blanche Road Corporation, against Bensalem Township and several

of its officials and employees. The appeal raises several

issues, including whether the district court abused its

discretion after the first trial by granting a new trial and

whether the judge erred by failing to recuse himself in the

second trial. We conclude, however, that the dispositive issue

is whether, during the second trial, the district court properly

granted defendants' motion for judgment as a matter of law.

Because we find that the court erred in granting this motion, we

will reverse and remand this action for yet another trial.

I.

Adam and Blanche Talacki purchased a 52-acre tract of

undeveloped land in Bensalem Township in 1967. A subdivision and

land development plan, dividing the land into 32 lots, was

approved by the Township and recorded in 1972. In addition, the

Talackis and the Township entered into a one-year subdivision

agreement which required the Talackis to complete certain

improvements, including roads, curbs, and a drainage system, by

June 28, 1973. These improvements were substantially completed.

In 1982, Bensalem Township enacted a subdivision and

land development ordinance to assist orderly, efficient and
integrated development of land. This ordinance was amended on

June 15, 1987, with the addition of impact fees, based on the

number of dwelling units or on the square footage of commercial

buildings to be constructed on a developed lot. Township

regulation of development and construction was expanded again on

July 27, 1987, by enactment of Ordinance 371, which adopted most

of the Building Officials & Code Administrators, International,

Inc. ("BOCA") National Building Code. Included in this July

ordinance was a Code Appeals Board to hear appeals from code

violations.

In 1986, the Talackis and Walter and Margaret Czekay

decided to develop an industrial park on the 23 undeveloped lots

in the subdivision. They formed Blanche Road Corporation, and,

with Blanche Road Corporation as the general partner and the

Talackis and Czekays as limited partners, they formed Blanche

Road Associates, a Pennsylvania limited partnership. Blanche

Road Associates began operations by purchasing one lot from the

Talackis and entering into an option agreement with them to

purchase any or all of the remaining lots over the next four

years. The Talackis and Czekays planned to build on the lots

sequentially, by investing the proceeds from the sale or lease of

one developed lot in the development of the next lot, until the

industrial park was completed. To this end, Blanche Road

installed water and sewer lines for all of the lots and

resurfaced the roads, at a cost of approximately $300,000.
Blanche Road also established a sales office, hired a park

manager, purchased construction equipment, and began marketing

the lots.

The parties' dispute centers on Blanche Road's attempts

to obtain various building permits for lots in the industrial

park. Plaintiffs claim that the Township, through its

supervisors and employees, engaged in a campaign of harassment

designed to force

Blanche Road to abandon its development of the industrial park.

Defendants, on the other hand, maintain that they were applying

the local zoning and permitting regulations in a lawful and

reasonable manner.

In Bensalem Township, during the relevant time period,

an aspiring developer of a parcel of land was required first to

obtain the Township's approval of the subdivision plan and then

to acquire three permits. The first permit was a land alteration

permit, which gave the developer the right to clear the land of

existing vegetation and to alter the course of surface water. In

order to qualify for this permit, a developer had to comply with

the Township's Land Alteration Ordinance and to show that the

work would not cause soil erosion or excessive water flow onto

adjoining property. All land alteration permits were approved by

the Township Board of Supervisors. Next, in order to erect a

building, a developer was required to obtain a building permit by

verifying that the building plans were in accord with applicable
building codes. Finally, after the building was erected but

before it could be occupied, a developer had to procure a use and

occupancy permit, showing that the building had been constructed

in accord with the approved plans and was safe for occupancy.

All building permits and use and occupancy permits were approved

by the Township Licensing and Inspections Department (L & I).

In 1987, Blanche Road developed, constructed, and sold

its first lot, lot 29, without incident. Blanche Road then

obtained permits for, purchased, and began construction on lot 7.

The two buildings constructed on the lot were leased to tenants.

Blanche Road did not, however, obtain use and occupancy permits

for the buildings before they were occupied. Next, Blanche Road

filed applications for a land alteration permit and a building

permit for lot 13. These applications were rejected in June 1987

by the Township zoning officer, building inspector, and fire

marshall. At that time, Fire Marshall John Scott, who had

rejected the building permit application, placed a note in

Blanche Road's file, that read: "C.W. -- S.2 -- NO SPRINKLERS --

CAN YOU GET THEM ON SOMETHING ELSE?"1 Eventually, Blanche Road's

applications for permits for lot 13 were approved, and in August

1987 Blanche Road completed its purchase of lot 13 and began

construction.

1According to plaintiffs, "C.W." stands for Cynthia Williams,
the Township building inspector at the time; "S.2" was a building
code classification for "low hazard" storage materials; and "No
sprinklers" refers to the fact that, given the size of the
building planned for lot 13, sprinklers were not required.
 In October 1987, Blanche Road filed applications for

land alteration and building permits for lots 14 and 26. In

November the permits for lots 14 and 26 were withheld, pending

payment of "impact fees" of approximately $9,600 for lot 14 and

$16,000 for lot 26. The impact fees, imposed pursuant to the

June 15, 1987, amendment to the Township's Subdivision and Land

Development Ordinance, assessed commercial developers a fee of

$.80 per square foot of proposed floor area.2 Blanche Road

protested the imposition of the impact fees, arguing that the

ordinance was not applicable because the Township had approved

the industrial park's subdivision and development plan prior to

the ordinance's enactment. In response to Blanche Road's

protest, Richard Moore, the Township's solicitor, "waived" the

impact fees. Permits for lots 14 and 26 were then issued, and

Blanche Road began construction on them.

In a December 1987 meeting, however, Township

officials, including the director of L & I, Staerk, the Township

engineer, Scheuren, and zoning officer, Steiner, told Walter

Czekay that, despite Moore's determination to the contrary,

Blanche Road would be required to pay impact fees on lots 14 and

26. They also informed Czekay that impact fees were owed on lot

13 and that Blanche Road would be required to establish an escrow

account of $10,000 per lot to cover engineering fees. According

2
Under the ordinance, impact fees were to be paid to L & I
upon the issuance of a building permit.
to Czekay's trial testimony, Staerk told Czekay that, if Blanche

Road failed to pay the impact fees, Staerk would take whatever

action was necessary to stop construction at the industrial park.

Blanche Road refused to pay the impact fees or to

establish an escrow account for the engineering fees. Later that

month, on December 22, Code Enforcement Officer William Oettinger

issued a stop work order on construction at the Blanche Road

site. As of that date, Blanche Road was constructing on lots 13,

14, and 26. Oettinger issued the citations to Blanche Road,

based upon violation of erosion and sedimentation control

measures outlined in the land alteration permits. In part, these

citations charged violations on lots which were still owned by

the Talackis. A citation was also issued for land alteration

without a permit. In issuing the stop work order, Oettinger

threatened that, if work did not stop at once, he would send

police to arrest all Blanche Road representatives and workmen on

the site. He then wished plaintiffs' representatives a "Merry

Christmas."

Plaintiffs contend that there was no basis for the stop

work order because it was the Township's usual practice to give a

developer ten days to correct a deficiency before issuing such an

order. Moreover, plaintiffs argue that the Township's building

code authorized the issuance of stop work orders only with

respect to "work on any building or structure . . . being

prosecuted . . . contrary to the . . . code or in an unsafe or
dangerous manner," and that no such violations were noted on the

stop work citations. Finally, plaintiffs point out that the

Township's Building Inspector, Cindy Williams, had been at the

site approximately three days prior to the issuance of the stop

work order and had not issued any citations.

Blanche Road attempted to appeal the citations and the

stop work order to the Township's Zoning Hearing Board. The

Township instead directed the appeal to the Code Appeals Board,

created in July 1987. Because the Code Appeals Board had not in

fact been formed, the Township's Board of Supervisors quickly

assembled a Board to hear Blanche Road's case. On January 11,

1988, a hearing was convened with three members of the newly

constituted Code Appeals Board, but the Board declined to reach

the merits of Blanche Road's appeal. At a second hearing, on

February 2, 1988, Blanche Road was informed that the Board would

not entertain the appeal because the Board did not have

jurisdiction over the matter.3

One month later, Scheuren returned to the Blanche Road

site with an enforcement officer from the Bucks County

Conservation District, the agency responsible for enforcement of

Pennsylvania's Clean Streams Act. The Conservation District

officer cited Blanche Road for failing to file or to comply with

3
Two reasons were given for the lack of jurisdiction: the
stop work order was based on ordinance violations rather than on
violations of the BOCA code, and the Board members were uncertain
about their qualifications to serve on the Board.
a sedimentation and erosion plan. The Township solicitor

recommended that Blanche Road's permits be revoked until such

time as compliance with state and local law was established. On

February 8, 1988, Oettinger served Blanche Road with a notice of

revocation of building and land alteration permits for lots 13,

14, and 26, as well as with a second stop work order.4

On February 28, 1988, Blanche Road filed a state court

equity action seeking to enjoin revocation of its permits.

Pursuant to a stipulation agreed to by the parties and approved

by the court, the permit revocations were rescinded. In June and

July 1988, Blanche Road applied for use and occupancy permits for

lots 13, 14, and 26; as earlier had been the case with the permit

for lot 7, the application was altered to require an additional

inspection and approval by engineer Scheuren.

When Blanche Road filed applications for land

alteration permits for lots 12, 21, 11, 15, and 8, the Township

treated them as subdivision and land development permit

applications. This treatment is significant because subdivision

and land development applications require a more extensive review

and are more time-consuming and costly than applications for land
4
The permit revocation notice and second stop work order
cited additional violations, including failure to comply with
certain regulations promulgated under the Pennsylvania Clean
Streams Act and failure to obtain a Use and Occupancy permit for
lot 7, which was occupied.
Oettinger also filed a criminal complaint against Czekay
personally for occupying a building on lot 7 without a use and
occupancy permit; the complaint, however, was filed in the wrong
district and was ultimately withdrawn.
alteration permits. Building permits for lots 12, 21, 15, and 8

were eventually issued as "conditional" permits, containing a

notation that the Township was not surrendering its right to

collect impact fees on the lots.5

Finally, and perhaps most significantly, Blanche Road

cites the testimony of Township Engineer Scheuren as evidence

that the Township and its officials conspired to delay and

ultimately to shut down Blanche Road's development of the

industrial park. Scheuren testified that all three Supervisor

defendants (Ryan, Costello, and Maher) told him to review Blanche

Road's permit applications with extra scrutiny in order to "slow

down" the development. According to Scheuren, Maher told him to

prepare a "punch list" for lot 7 by looking for every possible

violation and to proceed with whatever soil erosion violations he

could find at the site in order to continue the stop work orders.

Plaintiffs allege that, due to the Township's

insistence on the payment of inapplicable impact fees and to the

Township's improper refusal to release and issue permits, the

Talackis and the Czekays decided not to finish the project.

Blanche Road was closed down.

II.

5
Blanche Road contends that, because no one had ever
encountered "conditional" permits before, the permits created
problems with Blanche Road's bank and caused a potential buyer of
lot 21 to back out of its deal.
 On December 20, 1989, plaintiffs brought the instant

action under 42 U.S.C. § 1983, alleging violations of their equal

protection and due process rights in connection with the

development of selected lots in the industrial park.6 In

addition to the Township, several officials and employees of the

Township were named as defendants, including: the five

Supervisors in office at the time the suit was filed (Costello,

Francano, Maher, Ryan, and Zajac), the members of the Township

Code Appeals Board (Nolan, Seeberger, and Walls), Township

Manager Raddi, Zoning Officer Steiner, Director of the Department

of Licenses and Inspections (L & I) Staerk, Code Enforcement

Officer Oettinger, Township Engineers Scheuren and Thakuria, and

Solicitor Toften and his associate Landis.

Blanche Road sought four types of damages from these

defendants: (1) damages resulting from the Township's delay in

issuing permits for lots 7, 8, 10, 12, 13, 14, 15, 25, and 26;

(2) overhead costs and legal fees; (3) lost opportunity costs on

lots 11 and 21, which Blanche Road unsuccessfully attempted to

develop; and (4) lost profits which would have been earned from

the remaining lots in the subdivision if Blanche Road had had the

opportunity to purchase or develop them.

6
Blanche Road's equal protection and procedural due process
claims were dismissed during the first trial, and Blanche Road
has not pursued those claims. Accordingly, the only claim
presented to the jury at the first trial and raised in the second
trial is a violation of substantive due process.
 During the first trial, the district court held as a

matter of law that Blanche Road could not recover damages in

connection with the lots which it never purchased and for which

it had never applied for permits. The court based this ruling on

its conclusion that, in addition to being speculative, any

damages arising from the non-optioned lots could not causally be

linked to defendants since defendants had never had the

opportunity to act on any permits in connection with the lots.

In accordance with the court's ruling, Blanche Road was precluded

from submitting evidence of any damages suffered in connection

with the non-optioned lots.

At the close of plaintiffs' case in the first trial,

the district court granted judgment as a matter of law in favor

of defendants Staerk, Toften, Francano, Zajac, and Raddi, on the

basis of insufficient evidence.7 Therefore, due to the earlier

dismissal of several other defendants from the case,8 Blanche

Road's substantive due process claims proceeded to trial against

the following defendants: the Township; Supervisors Costello,

Ryan, and Maher; Township Engineers Scheuren and Thakuria; and

Code Enforcement Officer Oettinger.

7
Blanche Road appeals this ruling only insofar as it applies
to Staerk.
8
Defendants Steiner and Landis were previously dismissed by
stipulation. In addition, the claims against defendants Walls,
Seeberger, and Nolan (members of the Code Appeals Board) were
dismissed on summary judgment. Blanche Road does not appeal as
to any of these defendants.
 At the end of the first trial, the jury returned a

verdict for plaintiffs, with special interrogatories finding that

(1) Blanche Road's substantive due process rights had been

violated, (2) the remaining defendants were responsible for this

violation, and (3) defendants Costello, Ryan, and Maher had

participated in a conspiracy to violate Blanche Road's rights.

The jury also found that Blanche Road was entitled to total

compensatory damages of $2 million, of which defendants Costello,

Ryan, and Maher were liable for $500,000 each, and defendants

Scheuren, Thakuria, and Oettinger were liable for $165,000 each.9

At the time of the verdict, the district court noted that the sum

of the individual compensatory damages award fell short of the

total compensatory damages award of $2 million and also that the

jury had not specified the amount of damages for which the

Township was liable. The court offered to ask the jury an

additional question regarding the Township's liability, but

counsel for both sides agreed that the court should simply make

an appropriate finding based upon the verdict. The district

court then awarded damages against the Township in the amount of

$1,500,000, representing the compensatory damages awards against

the three Supervisor defendants. The court explained that it did

not hold the Township liable for the damages assessed against

9
The jury also found that the individual defendants were
liable for punitive damages in the following amounts: Costello,
Ryan, and Maher were liable for $2.00 each; Scheuren, Thakuria,
and Oettinger were liable for $1.00 each.
Oettinger, Scheuren, and Thakuria because the jury had found that

those defendants did not conspire with the Supervisors to violate

Blanche Road's rights.

Following the trial and the verdict, the Township, the

Supervisor defendants, and Oettinger all moved for judgment as a

matter of law under Rule 50, Fed. R. Civ. P., or for a new

trial.10 The district court denied the Township and the

Supervisor defendants' motions, holding that there was sufficient

evidence to support the jury verdicts against them. The court

granted these defendants' motion for a new trial, however, on the

basis that plaintiffs' counsel had "pursued a pattern of

misconduct from opening statement through final argument" that

led to the introduction of inadmissible and prejudicial

information before the jury. The court found that there was a

"reasonable probability that the jury's findings were influenced

by Plaintiffs' counsel's highly improper conduct, to the unfair

prejudice of the moving Defendants." Blanche Road Corp. v.

Bensalem Township, No. 89-9040, mem. order at 2 (Aug. 26, 1993).

The district court also granted Oettinger's motion for judgment

as a matter of law, finding that the evidence did not show that

he had acted with an improper motive or bad faith. Id. In the

event that judgment for Oettinger was reversed on appeal, the

district court granted him a new trial for the same reason it had

10
Defendants Scheuren and Thakuria have not challenged the
judgments against them and are not part of the instant appeal.
granted a new trial for the Township and the Supervisor

defendants. Id.

During the second trial, plaintiffs moved for recusal

of the district court judge, who had presided over the case from

the beginning. Blanche Road's motion was based upon the district

judge's manner in questioning some of plaintiffs' witnesses. The

judge denied the motion, and the trial continued.

At the close of plaintiffs' case in the second trial,

the district court granted the remaining defendants' motions for

judgment as a matter of law under Rule 50(a), Fed. R. Civ. P.,

and dismissed the case by final order entered on March 2, 1994.

III.

The district court had jurisdiction over this matter

pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has

jurisdiction pursuant to 28 U.S.C. § 1291, as the instant appeal

and cross-appeal follow from a final judgment entered by the

United States District Court for the Eastern District of

Pennsylvania.

IV.

In this appeal, plaintiffs challenge several decisions

made by the district court over the course of both trials.11

Specifically, in connection with the first trial, plaintiffs

11
Defendants also raise issues pertaining to both trials on
cross-appeal. To the extent that these issues are not dealt with
by our remand of this case for a new trial, we resolve them in
Section VI.B., supra.
challenge: (1) the district court's grant of defendants Staerk

and Oettinger's Rule 50 motions, (2) the district court's grant

of a new trial, (3) the district court's decision barring

plaintiffs from presenting damages evidence pertaining to the

subdivision lots that plaintiffs never attempted to purchase, and

(4) the district court's molding of the verdict in response to

the jury's answers to special interrogatories. Plaintiffs also

challenge the district court's decisions in the second trial to

deny plaintiffs' motion for recusal and to dismiss plaintiffs'

claims against the remaining defendants.

V.

A.

Turning our attention to the issues arising from the

first trial, we find that the district court did not err in

granting the Rule 50 motions on behalf of Staerk and Oettinger.

A Rule 50(a) directed verdict may be granted if, construing all

the evidence presented in the light most favorable to the party

opposing the motion, the court finds as a matter of law that no

jury could decide in favor of the nonmoving party. In reviewing

the district court's grant of the Rule 50 motions, we exercise

plenary review. See Indian Coffee Corporation v. Proctor &

Gamble, Co., 752 F.2d 891, 894 (3d Cir. 1985).

At the close of plaintiffs' case, the only evidence

which had involved Staerk was testimony that Staerk directed

Walter Czekay to pay the impact fees and that he threatened to
shut down the development if the fees were not paid. This

evidence was insufficient to support a finding that Staerk

violated plaintiffs' civil rights. In order to demonstrate that

Staerk, as a government agent, violated plaintiffs' civil rights,

plaintiffs would have had to show either that (1) Staerk's

actions were not rationally related to a legitimate government

interest; or (2) that Staerk's actions were "in fact motivated by

bias, bad faith or improper motive." Parkway Garage v.

Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993) (citing Midnight

Sessions, Ltd. v. Philadelphia, 945 F.2d 667, 683 (3d Cir. 1991),

cert. denied, 112 S.Ct. 1668 (1992)). Clearly, Staerk's demand

that plaintiffs pay impact fees required by a county ordinance is

rationally related to a legitimate government interest.

Plaintiffs, therefore, were required to demonstrate that Staerk's

actions were motivated by bias, bad faith or improper motive.

Had plaintiffs presented additional evidence indicating that

Staerk attempted to collect the impact fees for an improper

reason, their civil rights claim against Staerk could have

survived a motion for judgment as a matter of law. Because

plaintiffs failed to present any such evidence, however, the

district court did not err in granting judgment in favor of

defendants on plaintiffs' claims against Staerk.

Plaintiffs' argument that Staerk should be liable under

a theory of supervisor liability also fails. It is well settled

that the doctrine of respondeat superior may not be employed to
impose § 1983 liability on a supervisor for the conduct of a

subordinate which violates a citizen's constitutional rights.

Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978).

Instead, in order to establish Staerk's liability for the actions

of Oettinger, his subordinate, plaintiffs were required to

produce evidence first that Oettinger's conduct violated

plaintiffs' constitutional rights and second that Staerk knew of

Oettinger's conduct and approved it. See St. Louis v.

Praprotnik, 485 U.S. 112 (1988); Kernats v. O'Sullivan, 35 F.3d

1171, 1182 (7th Cir. 1994). Because plaintiffs satisfied neither

requirement, the district court properly granted Staerk's Rule 50

motion.

Furthermore, we conclude that the district court

properly granted judgment as a matter of law on plaintiffs'

claims against Oettinger. This ruling followed the jury's

verdict, which found that Oettinger was not involved in the

conspiracy to violate plaintiffs' constitutional rights. The

district court reasoned that, without the actions of the co-

conspirators being charged to him, insufficient evidence existed

to establish bad faith or improper motive on the part of

Oettinger. Citing Winn v. Lynn, 941 F.2d 236 (3d Cir. 1991),
the district court held that Oettinger fell into the category of

government officials performing discretionary functions whose

conduct "does not violate clearly established statutory or
constitutional rights which a reasonable person would have

known." Id. at 239.

Plaintiffs take issue with this conclusion, arguing

that Oettinger did manifest bad faith by wishing Czekay and

others a "Merry Christmas," after issuing the first stop work

order, and by filing a criminal complaint against Czekay for

occupying a building on lot 7 without an occupancy permit.12

Neither of these actions, however, unpleasant as they may be,

rise to the level of bad faith required to support a § 1983

violation. Nor, in view of the jury finding that Oettinger was

not a part of the conspiracy, can these actions be considered to

have been taken by Oettinger as a part of the overall conspiracy.

Moreover, it is undisputed that erosion and sedimentation control

violations did exist in the industrial park area when the stop

work orders were issued. Plaintiffs in essence failed to prove

that Oettinger had the motivation or bad faith required if there

is to be a finding that he committed a substantive due process

violation. See Parkway Garage, 5 F.3d at 692. Accordingly, the

case against Oettinger was properly dismissed by the district

court.

B.

12
Czekay was not in fact an occupant of the lot 7 building.
The building was, however, being occupied without a permit. As
we note infra in footnote 4, this complaint against Czekay was
ultimately withdrawn.
 The next question arising from the first trial is

whether the district court properly granted defendants' motion

for a new trial. As noted in Olefins Trading v. Han Yang Chem

Corp., 9 F.3d 282, 290 (3d Cir. 1993), this Court applies a

deferential "abuse of discretion" standard when reviewing a trial

court's grant of a new trial motion. Specifically, in cases

involving counsel misconduct, we defer to the trial court's

assessment of the level of prejudice involved "because the trial

judge was present and able to judge the impact of counsel's

remarks." Fineman v. Armstrong World Indus., 980 F.2d 171, 207

(3d Cir. 1992).

In its Memorandum Order of August 24, 1993, the

district court, after expressly stating that the jury's verdict

was supported by the weight of the evidence when viewed in the

light most favorable to plaintiffs, granted defendants' motion

for a new trial on the ground of counsel misconduct. The Court

reasoned:

[T]he record reveals that counsel for Plaintiffs
pursued a pattern of misconduct from opening statement
through final argument. Unfortunately, Plaintiffs'
counsel was able to get before the jury information
that was inadmissible as evidence and clearly unfairly
prejudicial to moving defendants. Counsel's pattern of
conduct is probative of his belief that such misconduct
was necessary to the success of Plaintiffs' case. I am
convinced beyond any doubt that there is a reasonable
probability that the jury's findings were influenced by
Plaintiffs' counsel's highly improper conduct, to the
unfair prejudice of the moving Defendants. Moreover,
cautionary instructions could not and did not cure the
unfair prejudice. I must grant a new trial not as
 punishment to Plaintiffs' counsel, but to assure
fairness and due process to moving defendants.

Blanche Road Corp. v. Bensalem Township, No. 89-9040, slip op. at
2 (E.D.Pa. Aug. 24, 1993) (footnote omitted). Thus, the district

court's decision to grant defendants a new trial was based upon

the court's determination that plaintiffs' counsel had engaged in

misconduct that had in all probability influenced the jury.

In this circuit, the test for determining whether to

grant a new trial in cases involving counsel misconduct is

"whether the improper assertions have made it 'reasonably

probable' that the verdict was influenced by prejudicial

statements." Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227,
1236 (3d Cir. 1994) (citing Fineman v. Armstrong World Indus.,

980 F.2d 171, 207 (3d Cir. 1992)). In the instant case, it is

clear that the district court did not abuse its discretion by

finding that this standard was met; the record is replete with

examples of counsel misconduct that might have influenced the

jury. For example, counsel repeatedly argued with the court

regarding its rulings, see, e.g., Joint Appendix (J.A.) 212, 251,

868, even going so far as to inform the court, in the presence of

the jury, that it was not treating counsel or his client fairly.

J.A. 373, 869. Counsel also commented before the jury, based on

the cross-examination of his witness, Walter Czekay, that Czekay

had "answered honestly, candidly, accurately. His testimony is

excellent." J.A. 1083. In addition, counsel in his closing

argument referred to backdated documents, for which no evidence
existed in the record; he argued that Costello, Ryan, and Maher

had told Scheuren "to backdate some documents and then they watch

him go to jail." J.A. 3051. This short list is representative

of the type of counsel misconduct that permeated the first trial.

The district court's decision to grant a new trial on this basis

was not an abuse of discretion.

C.

The next issue raised in connection with the first

trial is the district court's decision to mold the verdict to

conform with the jury's responses to special interrogatories.

This issue is rendered moot, however, in light of our decision to

affirm the district court's grant of the second trial.

D.

Finally, plaintiffs contend that the district court

erred in holding as a matter of law during the first trial that

Blanche Road could not recover damages in connection with the

lots that it had never purchased and for which it had never

applied for permits. The court based its ruling on its

conclusion that, in addition to being speculative, any damages

arising from the non-optioned lots could not be causally linked

to defendants since defendants never had the opportunity to act

on any permits in connection with the lots. (J.A. 812-14).

Section 1983 "creates 'a species of tort liability in

favor of persons who are deprived of rights, privileges, or

immunities secured to them by the Constitution.'" Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 305-06 (1986)

(quoting from Carey v. Piphus, 435 U.S. 247, 253 (1978) (internal

quotation and citation omitted)). Damages in § 1983 "cases are

designed to provide 'compensation for the injury caused plaintiff

by defendant's breach of duty.'" Id. at 306 (quoting from 2 F.

Harper, F. James, & O. Gray, Law of Torts § 25.1 (2d ed. 1986)).

"To that end, compensatory damages may include [both] out-of-

pocket loss and other monetary harms," as well as more intangible

injuries, resulting from the breach. Id. at 307.

"The level of damages [in a § 1983 case] is ordinarily

determined according to principles derived from the common law of

torts." Id. at 306 (emphasis supplied). That common law is

reflected in the law of Pennsylvania. Under Pennsylvania law,

speculative damages may not be awarded. Damages are considered

speculative if "the uncertainty concerns the fact of damages, not

the amount." See Carroll v. Philadelphia Housing Auth., 650 A.2d

1097 (Pa. Cmwlth. 1994). Consequently, damages are not

considered speculative merely because they are not capable of

exact calculation. See Ashcraft v. C.G. Hussey & Co., 359 Pa.

129, 58 A.2d 170 (1948). Rather, Pennsylvania law merely

requires that plaintiffs present a reasonable quantity of

information from which a jury can fairly estimate the damages.

Id.
In the instant case, plaintiffs met this burden.

Plaintiffs established that, as of 1986, plaintiffs had an option
to purchase and develop 23 lots in the Blanche Road subdivision.

In reliance on this option, plaintiffs invested $300,000 in road

improvements and water and sewer lines which benefited the whole

industrial park. Furthermore, plaintiffs showed that, two years

later, they abandoned their attempt to develop the industrial

park. They contend that the premature termination of the project

was caused by defendants' deliberate interference and delay.

The district court dismissed the claim on ripeness

grounds: the options to purchase had not been exercised and no

permits had been sought for these lots. As we will discuss more

fully below in Section VI.B., under plaintiffs' theory that

defendants' deliberate delay caused their loss, plaintiffs need

not wait for the exercise of the options or the completion of the

permitting process before bringing suit. We conclude that the

district court erred in precluding plaintiffs from pursuing their

claim for recovery of damages resulting from their alleged

inability to develop lots that they never purchased.

Nevertheless, plaintiffs will still bear the burden of proving

causation and of offering sufficient evidence of loss to

demonstrate that these damages can reasonably be calculated and

consequently are not unduly speculative.

VI.

Two issues arise on the appeal from the second trial.

First, plaintiffs challenge the district judge's decision not to

recuse himself from the second trial. Second, plaintiffs
challenge the district court's granting of judgment as a matter

of law on all claims against the remaining defendants.

A.

In reviewing a judge's decision not to recuse himself,

our standard of review is abuse of discretion. See Edelstein v.

Wilentz, 812 F.2d 128, 131 (3d Cir. 1987).

Plaintiffs' argument for recusal in this case focuses

on the district judge's comments, both before the jury and at

sidebar, indicating his distrust toward and frustration with

plaintiffs and plaintiffs' counsel. These comments include the

court's suggestion that plaintiffs' counsel had somehow

"maneuvered" to ensure Scheuren's appearance as a witness, J.A.

4217, and the court's declaration that plaintiffs' counsel

conducted the worst direct examination the court had ever seen.

J.A. 273. The district judge was also skeptical of plaintiffs'

witnesses, as reflected in his extensive questioning of them and

his comment during argument on the motion to recuse that Czekay

"doesn't have any right to say things which are not true

initially and hope that it doesn't get clarified either by cross-

examination or the Court." J.A. 4455.

Under 28 U.S.C. § 455(a), recusal is required whenever

a judge's impartiality "might reasonably be questioned."

Accordingly, a judge should recuse himself where "a reasonable

man knowing all the circumstances would harbor doubts concerning

the judge's impartiality." United States v. Dalfonso, 707 F.2d
757, 760 (3d Cir. 1983); see also Alexander v. Primerica

Holdings, 10 F.3d 155 (3d Cir. 1993) (ordering the reassignment

of a case because the judge's impartiality could reasonably be

questioned).

We recently interpreted the standard of "impartiality"

required under 28 U.S.C. § 455(a) in United States v. Bertoli, 40

F.3d 1384 (3d Cir. 1994). Citing Liteky v. United States, 114 S.

Ct. 1147 (1994), we stated that the "extrajudicial source"

doctrine arising under 28 U.S.C. § 455(b)(1)13 also applies to §

455(a). Under the "extrajudicial source" doctrine, "bias, in

order to form the basis for recusal, must stem from a source

outside of the official proceedings." Bertoli, 40 F.3d at 1412.

Consequently, because the source of the bias must be an external

source, "judicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or

partiality challenge." Id. (citing Liteky, 114 S. Ct. at 1157).

Despite this external source requirement, recusal may

still be required if the judge's actions during the trial,

considered objectively, "display a deep-seated favoritism or

antagonism that would make fair judgment impossible." Bertoli,
40 F.3d at 1412; see also United States v. Antar, Nos. 94-5228

and 94-5230, slip op. at 7-20 (3d Cir. Apr. 12, 1995) (requiring

13
Section 28 U.S.C. § 455(b)(1) requires disqualification
when the judge "has a personal bias or prejudice concerning a
party."
recusal after the judge explicitly revealed having an improper

goal in the proceeding). After reviewing the record in this

case, however, we do not find that the district judge's actions

demonstrated the type of bias warranting his recusal from the

case. Although it is true that at times the judge criticized

plaintiffs for attempting to mislead the jury and became short-

tempered with plaintiffs' counsel, these comments appear to arise

from the judge's impatience and frustration with the manner in

which plaintiffs were trying their case, rather than any

partiality for defendants. As Justice Scalia wrote in Liteky:

Not establishing bias or partiality, however, are
expressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what
imperfect men and women, even after having been
confirmed as federal judges, sometimes display. A
judge's ordinary efforts at courtroom administration--
even a stern and short-tempered judge's ordinary
efforts at courtroom administration--remain immune.

114 S. Ct. at 1157. Accordingly, because the district judge's

actions and comments did not manifest a deep-seated bias that

would render fair judgment impossible, we find that he did not

abuse his discretion in not recusing himself from the second

trial.

B.

The second issue from the second trial is the district

court's granting of judgment as a matter of law to defendants

after the completion of the plaintiffs' case. A Rule 50(a)

directed verdict may be granted only if, as a matter of law,
viewing all the evidence which has been tendered and should have

been admitted in the light most favorable to the party opposing

the motion, no jury could decide in that party's favor. Our

review of the grant of such a motion is plenary. See Indian

Coffee Corp. v. Proctor & Gamble Co., 752 F.2d 891, 894 (3d Cir.

1985).

In granting defendants' Rule 50(a) motion, the district

court made the following conclusions of law:

[T]here are certain things which are absolutely
undisputed on record. That is, that Blanche Road did,
in fact, apply for a number of permits . . . . Except
for one, . . . Blanche Road had approval of the permits
and proceeded to build pursuant to the permits on all
except lots 21 and 11.

. . . .

As was noted by Judge Scirica in Acierno, the
property owner has a high burden of proving that a
final decision has been reached by the agency before it
may seek compensatory or injunctive relief in federal
court on federal constitutional grounds. No such
showing of such final decision has been made in regard
to those lots . . . on which Blanche Road did not
exercise its option to become owner, upon which Blanche
Road never applied for a permit; and therefore,
obviously there's no ripeness as to those.

. . . .

As to the lots for which Blanche Road applied for
permits, they would fall within a separate category.
As to those, I read the cases, including Acierno, as
limiting substantive due process violations to mature
constitutional claims, which conclusively bar the use
of the property.

There is no such conclusive bar here as to any of
the properties. And, in fact, they had been utilized
 with the exception of lots 21 and 11, which apparently
have not as yet been constructed.

. . . .

As to lot 11, plaintiff has offered into evidence
. . . a notice of rejection of application for permit.

. . . While there is this evidence of a rejection,
the record is devoid of any attempt . . . to appeal
that to the zoning board for final determination.

I read the zoning regulations as giving
jurisdiction to the zoning hearing board in such cases,
and, therefore, I find . . . that the controversy over
lot 11 has not developed into a mature constitutional
claim, and must dismiss it because of ripeness.

(J.A. 5217-5222).

Thus, in granting defendants' Rule 50(a) motion, the

court applied the standards applicable in zoning cases, such as

Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993), to the instant

case. For the reasons that follow, however, the ripeness

requirement arising in zoning dispute cases does not apply to

Blanche Road's claims and, consequently, defendants' Rule 50(a)

motion should not have been granted.
In Acierno, the plaintiff challenged the county's

denial of his application for a building permit. We held that

the plaintiff's claim was unripe because, although his

application had been rejected by the county's Development and

Licensing Division, he had failed to appeal the decision to the

county's Board of Adjustment, which had final authority to

interpret the zoning regulations. Accordingly, plaintiff did not

have a "final decision" from the county until the Board of
Adjustment rendered its decision on his permit application. See

also Midnight Sessions, Ltd. v. Philadelphia, 945 F.2d 667, 686

(3d Cir. 1991) ("This failure to appeal precludes 'final

administrative action' by the City and, therefore, these claims

were premature . . . .").

In the instant case, however, plaintiffs' claims are

not dependent on a final decision from the county, since

plaintiffs are not appealing from an adverse decision on a permit

application.14 Rather, plaintiffs are asserting that defendants,

acting in their capacity as officers of the Township,

deliberately and improperly interfered with the process by which

the Township issued permits, in order to block or to delay the

issuance of plaintiffs' permits, and that defendants did so for

reasons unrelated to the merits of the application for the

permits. Such actions, if proven, are sufficient to establish a

substantive due process violation, actionable under § 1983, even

if the ultimate outcome of plaintiffs' permit applications was

favorable.15 See Bello v. Walker, 840 F.2d 1124, 1128-30 (3d

Cir. 1988) (factfinder could conclude that council members,

acting in their official capacity, improperly interfered with

14
In fact, virtually all of plaintiffs' permit applications
were ultimately approved.

15
For this reason, we reject defendants' argument that
Blanche Road failed to assert a constitutional claim because it
had no vested property right that could be subject to a due
process violation. Plaintiffs had the right to be free from
harassment in their land development efforts.
building permit process for partisan political or personal

reasons unrelated to the merits of the permit applications).

This is a substantively different type of claim than that

presented in the ripeness cases, and internal review of the

individual permit decisions is thus unnecessary to render such a

claim ripe.

The district court also erred in ruling that

plaintiffs' use of their property had to be "conclusively barred"

in order for plaintiffs to state a claim. We have previously

held that, in order to prevail on a takings claim, a plaintiff

must establish that its intended use of its property was

"conclusively barred" by the disputed land use regulation. See

Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1029

(3d Cir.), cert. denied, 482 U.S. 906 (1987). In the instant

case, however, plaintiffs are not claiming that their property

was unconstitutionally taken for a governmental purpose without

just compensation. Rather, plaintiffs claim that defendants

acted deliberately and under color of state law to deprive them

of their property rights by interfering in and delaying the

issuance of permits. Accordingly, the district court, by

relying on the ripeness standard set forth in Acierno and the
"conclusively barred" standard set forth in Pace Resources,

applied the wrong legal standard in granting defendants' Rule

50(a) motion.
 The question remains, however, whether defendants' Rule

50(a) motion should be granted if the proper legal standard were

applied. Defendants posit two arguments to support their

contention that, viewing all the evidence in the light most

favorable to plaintiffs, no jury could find in plaintiffs' favor.

First, defendants argue that, under Pennsylvania's "deemed

approval" statute, 53 Pa. C.S.A. § 4104, plaintiffs cannot

establish damages arising from any delays in the issuance of

their permits. Under the statute, if a municipality does not

approve or reject a permit application within 90 days, the

application is deemed approved. Plaintiffs either were granted

permits within the 90 day period or they did not take legal steps

to force the issuance of the permit after the expiration of the

90 days. The "deemed approved" statute, however, does not

foreclose damages based upon intentional delays in the issuance

of permits. One need only consider a hypothetical situation in

which officials, seeking to sabotage a developer's project,

intentionally withheld each permit for 89 days or for an even

longer period until the applicant would take legal steps. Such

deliberate and arbitrary delays could cause significant

additional expense to the developer.

Next, the Supervisor defendants contend that their Rule

50(a) motion should be upheld on the alternative ground that they

were entitled to qualified immunity. Comparing the instant case

to Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994) ("Acierno
II"), the supervisor defendants assert that, because Pennsylvania

law is unclear as to whether a landowner's subdivision approval

renders him immune from subsequent zoning amendments, the

Supervisors should be entitled to immunity for their decision to

treat plaintiffs' land alteration permit applications as land

development permit applications and for their decision to assess

the impact tax on the property. Furthermore, the Supervisor

defendants assert that they are entitled to qualified immunity

for any personal involvement they might have had in the stop work

orders and permit revocations issued for lots 13, 14 and 26,

because there was a perceived threat to public health, safety,

and welfare.

The test for determining whether government officials

are entitled to qualified immunity for their actions, as set

forth in Harlow v. Fitzgerald, 457 U.S. 800 (1982), is that

"government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known." Id. at 818. In the instant case, however, when the

evidence is viewed in the light most favorable to plaintiffs, it

is clear that defendants could not have reasonably believed that

their conduct did not violate defendants' rights. If defendants,

for reasons unrelated to an appropriate governmental purpose,

intentionally conspired to impede the development of the Blanche
Road project, by ordering that Blanche Road's applications be

reviewed with greater scrutiny in order to slow down the

development and by ordering that efforts be taken to shut down

the development, such an arbitrary abuse of governmental power

would clearly exceed the scope of qualified immunity.

Accordingly, the defense of qualified immunity is not available

to defendants in the instant matter.16

VII.

For the above stated reasons, we will vacate the

district court's order, granting defendants' Rule 50(a) motion,

and we will order a new trial in this matter. On retrial, the

plaintiffs may present evidence of loss suffered from their

inability to develop the lots, which they did not purchase and

16
The Township has cross-appealed on the ground that there
was insufficient evidence from which a jury could find a Township
policy based upon a custom of tolerating or sanctioning conduct
that violated plaintiffs' rights. Our review, however, convinces
us that the plaintiffs' evidence was sufficient for a jury to
conclude that Township Supervisors Costello, Ryan, and Maher all
conspired to shut down the Blanche Road development.
Under § 1983, "a plaintiff must show that an official who
has the power to make policy is responsible for either the
affirmative proclamation of a policy or acquiescence in a well-
settled custom." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d
Cir. 1990) (citing Andrews v. City of Philadelphia, 895 F.2d
1469, 1480 (3d Cir. 1990)). In determining whether an official
holds such policymaking authority, courts are to consider whether
an official has "final, unreviewable discretion to make a
decision or take an action." Andrews, 895 F.2d at 1481. In the
instant case, the Supervisor defendants had clear authority to
execute final, nonreviewable actions, as evidenced by their
control over the licensing process in the Township. Accordingly,
plaintiffs' evidence, if believed, is sufficient to establish
Township liability under § 1983.
for which no permits were sought, if they can establish a causal

link between such loss and the defendants' actions and if they

can present a basis, which is not unduly speculative, for

calculating such loss.