Sameric Corp of DE v. Cty of Philadelphia

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

4-10-1998

Sameric Corp of DE v. Cty of Philadelphia
Precedential or Non-Precedential:

Docket 97-1615

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Filed April 10, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1615

SAMERIC CORPORATION OF DELAWARE, INC.,
Appellant

v.

CITY OF PHILADELPHIA; PHILADELPHIA HISTORICAL
COMMISSION, an Agency of the City of Philadelphia;
EDWARD A. MONTGOMERY, JR.; RICHARD TYLER,
Ph.D.; CHRIS CASHMAN; DAVID BROWNLEE, Ph.D.;
DAVID HOLLENBERG; BARBARA KAPLAN; JOAN
FERRERA; and DAVID WISMER, Individually and in Their
Official Capacities as Members of the Philadelphia
Historical Commission.

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 95-07057)

Argued March 9, 1998

BEFORE: GREENBERG, SCIRICA, and ALDISERT,
Circuit Judges.

(Filed: April 10, 1998)
 Richard A. Sprague
Geoffrey C. Jarvis (argued)
Charles J. Hardy
David S. Lubin
Sprague & Sprague
The Wellington Building, Suite 400
135 South 19th Street
Philadelphia, PA 19103

Attorneys for Appellant

Michael F. Eichert
(argued)
Chief Deputy City Solicitor
City of Philadelphia Law Department
1600 Arch Street, 8th Floor
Philadelphia, PA 19103

Robert C. Heim
Arthur Newbold
Diane S. Danoff
Aline Fairweather
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Sameric Corporation of Delaware ("Sameric") appeals
from the district court's order of July 14, 1997, granting
summary judgment to the City of Philadelphia (the "City")
and various individual defendants. Sameric filed this action
in November 1995 alleging that the City violated its federal
and state constitutional rights by improperly designating
Sameric's theater as an historic building and subsequently

2
denying Sameric a permit to demolish the theater.
Sameric's complaint alleged that, as a result of the
defendants' unlawful designation of the theater and
subsequent denial of the demolition permit, its business
was injured and it was forced to sell its properties,
including the theater, at substantially less than fair market
value.

The district court had subject matter jurisdiction over
these claims pursuant to 28 U.S.C. SS 1331, 1367. We have
jurisdiction to review the final order of the district court
pursuant to 28 U.S.C. S 1291.

II. FACTS AND PROCEDURAL HISTORY

A. Philadelphia's Historic Preservation Ordinance

The Philadelphia Historical Commission ("Historical
Commission") is an instrumentality of the City which
administers Philadelphia's Historic Preservation Ordinance
(the "ordinance"). The Historical Commission's primary
obligation is to "[d]esignate as historic those buildings,
structures, sites and objects which the Commission
determines, pursuant to the criteria set forth in Subsection
(5) of [Section 14-2007], are significant to the City." Phila.
Code S 14-2007(4)(a). The ordinance permits the Historical
Commission to designate a building1 as historic where at
least one of ten enumerated criteria is met.

When a building is proposed for historic designation, the
Historical Commission prepares a nomination form, which
begins the process by which the Historical Commission
considers buildings for designation. The nomination form
details information regarding the building's historic,
architectural, and cultural features. The Designation
Committee of the Historical Commission (the "Designation
Committee") is responsible for selecting which nominated
_________________________________________________________________

1. We use the term "building" throughout this opinion because this case
involves a building. However, our discussion of the designation of a
building under the ordinance also encompasses the designation of
structures, objects, complexes of buildings, and districts which, for the
most part, are treated equally under the ordinance.

3
buildings the Historical Commission will consider for
historic designation. When the Designation Committee
recommends a building for preservation, it presents its
report and recommendation to the Historical Commission
at a hearing on the matter.

Pursuant to the ordinance, the owner of a building
designated as historic may not demolish or alter that
building without a permit from the Department of Licenses
and Inspections ("Department of Licenses"). See Phila. Code
S 14-2007(7)(a). If an owner desires such a permit, it
applies to the Department of Licenses, which then forwards
the application to the Historical Commission for review. An
owner may obtain the permit where it is suffering "financial
hardship" or the building "cannot be used for any purpose
for which it is or may be reasonably adapted." Phila. Code
S 14-2007(7)(f). The ordinance requires the Department of
Licenses to grant the application if the Historical
Commission has no objection but to deny the application if
the Historical Commission does object. See Phila. Code
S 14-2007(7)(g). Upon the denial of such a permit, the
owner may appeal to the Board of License and Inspection
Review (the "Board of License Review"). See Phila. Code
S 14-2007(10).

B. Historic Designation of the Boyd Theater

Prior to 1988, Sameric owned the Boyd Theater2 on
Chestnut Street in Philadelphia. The Historical Commission
began to consider the Boyd Theater as a candidate for
designation as historic in 1984 or 1985 by reason of
discussions between members of the Historical Commission
and the City of Philadelphia Planning Commission.

As a result, a staff employee of the Historical Commission
prepared a nomination form for the Boyd Theater in
January 1986. The nomination form detailed the Boyd
Theater's notable features and included photographs and
citations to publications concerning the theater. The
completed nomination form was forwarded to the
Designation Committee, which held a meeting to consider
_________________________________________________________________

2. The theater was also known as the Sameric Theater.

4
the nomination. The Designation Committee decided
unanimously to recommend to the Historical Commission
that the Boyd Theater be designated as historic.

Following this vote, the Historical Commission sent
Sameric a letter on March 28, 1986, indicating the
Commission's intent to consider designating the theater.
The letter notified Sameric that a hearing was scheduled for
April 30, 1986, to consider the matter. At Sameric's
request, the Commission postponed this hearing six times.

On January 27, 1987, Sameric attempted to prevent the
Historical Commission from considering the proposed
designation by filing an action in equity in the Court of
Common Pleas of Philadelphia County seeking a temporary
restraining order against the Historical Commission. The
Court of Common Pleas stayed the Historical Commission's
consideration of the proposed designation for 30 days. On
January 30, 1987, the Historical Commission removed the
suit to the United States District Court for the Eastern
District of Pennsylvania on the grounds that some of the
claims arose under the Constitution. The district court then
granted the Commission's motion to dismiss Sameric's
complaint.3 See Sameric Corp. of Chestnut St., Inc. v.
Philadelphia Historical Comm'n, Civ. A. No. 87-553, 1987
WL 7636, at *2 (E.D. Pa. Mar. 5, 1987).

Following the district court's dismissal of the complaint,
the Historical Commission held a hearing on March 25,
1987, to consider the proposed designation of the Boyd
Theater as historic. At the hearing, Commissioner David
Brownlee, a member of the Designation Committee,
presented the committee's recommendation and report.
Although, during the hearing, Sameric's counsel repeatedly
asked the Historical Commission to postpone the vote so
_________________________________________________________________

3. The district court held that Sameric was not entitled to a preliminary
injunction to prevent the Historical Commission from considering the
designation of the theater because Sameric was not subject to an
immediate threat. According to the court, the convening of a hearing did
not in itself pose a threat to Sameric. Further, the court found that the
potential designation would not harm Sameric, as only the subsequent
denial of a permit required by virtue of the designation would pose a
threat to Sameric.

5
that Sameric could present evidence, the Historical
Committee voted to designate the Boyd Theater as historic,
with only Commissioner John Street dissenting.

Later that day, Sameric requested the Court of Common
Pleas to vacate the Historical Commission's decision and
reschedule the hearing because the Commission did not
properly notify Sameric of the hearing and because Sameric
was not prepared to present certain evidence at the
hearing. The court granted Sameric's request and ordered
the Historical Commission to reconvene to hear the matter
again. See Sameric Corp. of Chestnut St. v. City of
Philadelphia, Civ. A. No. 4525 (Ct. C.P. Phila. County Mar.
25, 1987).

The Commission held the second hearing on April 2,
1987. At this hearing, Commissioner Brownlee again
presented the Designation Committee's recommendation for
designation and described the theater as a superb example
of art deco. The Commissioner then presented a slide show
detailing particular features of the theater, both interior
and exterior. The Designation Committee's report
emphasized that the building was an authentic example of
art deco and that the building was "almost completely
intact both on the interior and exterior." App. 54-55.

The president of Sameric, Merton Shapiro, then testified
that many of the features which the Designation Committee
emphasized, such as the ticket booth, entrancewayfloor,
glass doors to the main lobby, mirrors, and the lobby
ceiling, were not original. Shapiro presented slides of the
building which illustrated the original appearance of the
theater, both exterior and interior, and narrated the
presentation, pointing out all the changes that he and
others had made to the appearance of the theater. App.
163-69. Upon the completion of Shapiro's presentation,
Richard Tyler, the Executive Director of the Historical
Commission, acknowledged that Shapiro's presentation
showed that there had been substantial changes to the
appearance of the theater. Tyler also urged the Commission
members to consider this evidence. App. 192.

The Historical Commission also heard testimony on
behalf of Sameric from a partner of an architecturalfirm

6
regarding the authenticity of the Boyd Theater's art deco
style. App. 183-87. According to the architect, the theater
was not an architecturally notable building in either its
original or present form. App. 184. In addition, the
architect testified that of the 18 criteria enumerated in a
scholarly treatise which identify the art deco style, the
remaining portion of the Boyd Theater's original facade
included only five. App. 184.

At the close of the evidence, the Historical Commission
again voted to designate the Boyd Theater as historic, with
only Commissioner Street again voting against the
designation.

C. The State Court Proceedings

Following the designation of the Boyd Theater as historic,
on April 24, 1987, Sameric filed a complaint in equity in
the Court of Common Pleas in Philadelphia County against
the City challenging the designation of the theater. The
parties agreed that Sameric's suit should be construed as
an appeal from the decision of a local agency pursuant to
2 Pa. Cons. Stat. Ann. S 752 (West 1995). See Sameric Corp.
of Chestnut St., Inc. v. City of Philadelphia, 558 A.2d 155,
156 n.1. (Pa. Cmmw. Ct. 1989). The Court of Common
Pleas dismissed the action, and the Commonwealth Court
affirmed, holding that the evidence regarding the exterior
was sufficient to support the designation and that the
designation of the interior was within the authority of the
ordinance. See id. at 156-57.

On appeal, the Supreme Court of Pennsylvania originally
held that the historic designation of the Boyd Theater
amounted to a taking without just compensation in
violation of Article I, Section 10, of the Pennsylvania
Constitution. See United Artists Theater Circuit, Inc. v. City
of Philadelphia, 595 A.2d 6 (Pa. 1991).4 Thus, the court did
not decide whether the designation was proper under the
ordinance. One justice filed a concurring opinion stating
_________________________________________________________________

4. Because Sameric sold its assets to United Artists in April 1988, the
appellant was changed from Sameric to United Artists while the case was
on appeal to the Supreme Court of Pennsylvania.

7
that the designation was improper under the ordinance
because it was based on the interior of the building; thus,
he found it unnecessary and imprudent to reach the state
constitutional issue. See id. at 28 (Cappy, J., concurring).

The Supreme Court of Pennsylvania later granted
rehearing and reconsidered the appeal. On rehearing, the
court held that designating a privately owned building as
historic did not automatically constitute an
unconstitutional taking. See United Artists' Theater Circuit,
Inc. v. City of Philadelphia, 635 A.2d 612, 620 (Pa. 1993)
(hereinafter "United Artists' II"). However, the court also
found that the ordinance does not permit designation based
upon a building's interior, and therefore, the Historical
Commission improperly designated the Boyd Theater to the
extent the designation was based upon its interior. See id.
at 622. Because the court found it impossible to separate
the evidence so as to decide whether there was sufficient
evidence based only on the exterior of the theater to
support its designation, the court vacated the Historical
Commission's designation of the Boyd Theater. See id.

Insofar as we are aware, the Commission has not
redesignated the building as historic. While the court in
United Artists' II did not in its opinion remand the case to
the Common Pleas Court, according to Sameric it is seeking
damages in the Common Pleas Court attributable to the
designation of the Boyd Theater as historic.

D. Sameric's Application for a Demolition Permit

On April 8, 1987, six days after the Historical
Commission designated the Boyd Theater as historic,
Sameric filed an application for a demolition permit for the
theater, which was transferred immediately to the Historical
Commission for review. On April 9, 1987, the Architectural
Review Committee of the Historical Commission held a brief
hearing on Sameric's application. The Historical
Commission then postponed consideration of the
application until August 26, 1987. At a series of meetings,
the Historical Commission considered evidence and, on
December 2, 1987, it voted to deny Sameric's application
for a demolition permit. On February 2, 1988, the Historical

8
Commission issued its Findings of Fact and Decision.
Pursuant to the ordinance, the Department of Licenses
denied the permit based upon the Historical Commission's
objection to it. See Phila. Code S 14-2007(7)(g).

On December 15, 1987, Sameric appealed the denial of
its application for a demolition permit to the Board of
License Review. In April 1988, Sameric sold all of its
theaters, including the Boyd, to United Artists Theater
Circuit, Inc. Under the terms of the sale, Sameric retained
its claims for damages resulting from the historic
designation of the theater. After selling the property,
Sameric abandoned its appeal of the denial of the permit.
Thus, the Board of License Review never concluded its
hearings or rendered a decision on Sameric's appeal.

E. The District Court Proceedings

In November 1995, Sameric instituted this suit in the
United States District Court for the Eastern District of
Pennsylvania against the City, the Historical Commission,
and various individual defendants who were the Executive
Director and Commissioners of the Historical Commission,
in their individual and official capacities. Consequently, in
the course of this opinion, depending upon our context, our
references to the City may include all of the defendants.
Sameric's complaint asserted claims pursuant to 42 U.S.C.
S 1983 for violations of its federal substantive and
procedural due process rights as well as a civil conspiracy
claim against all defendants. In addition, Sameric alleged
that the defendants violated various rights secured under
the Pennsylvania Constitution.

As a result of these alleged violations, Sameric asserts
that its business was injured and that its property was
reduced in value. In particular, Sameric alleges that
beginning in late 1986, after the commencement of the
designation proceedings, it was unable to obtainfinancing
because the proposed designation of the theater would
reduce the value of the property significantly. Thus,
beginning in 1987, Sameric no longer could afford to obtain
quality films for its theaters. Sameric contends that
ultimately it was forced to sell its entire holdings because

9
of its financial difficulties, and because of the historic
designation it received substantially less than fair market
value for the theater.

The district court dismissed Sameric's procedural due
process claim in February 1996, but Sameric does not
appeal from this dismissal.5 At the close of discovery, on
July 14, 1997, the district court granted the defendants'
motion for summary judgment on the remainder of
Sameric's claims. First, in an order from which Sameric
does not appeal, the district court dismissed all claims
against the Historical Commission because Sameric
conceded that it was not a proper defendant. See Sameric
Corp. of Del., Inc. v. City of Philadelphia, Civ. A. No. 95-
7057, 1997 WL 399374, at *3 n.5 (E.D. Pa. July 14, 1997).
Second, the district court found that, as a matter of law,
the City was within its authority to designate the Boyd
based on its future cultural value if converted to live
performance space. The district court's subsequent
holdings were based upon this finding. In particular, the
district court held that (1) Sameric did not raise a genuine
issue of material fact as to whether the defendants acted
arbitrarily or with an improper motive in designating the
Boyd Theater as historic; (2) the claims based upon the
City's subsequent denial of Sameric's application for a
demolition permit were not ripe; and (3) the individual
defendants were entitled to immunity with respect to both
the federal claims and those arising under the Pennsylvania
Constitution. Sameric filed a timely notice of appeal from
this order.
_________________________________________________________________

5. The district court dismissed Sameric's procedural due process claims
for failure to state a claim. See Sameric Corp. of Del., Inc. v. City of
Philadelphia, Civ. A. No. 95-7957, 1996 WL 47973, at *4 (E.D. Pa. Feb.
2, 1996). The district court held that Pennsylvania provided a judicial
mechanism permitting Sameric to challenge the designation of the Boyd
Theater. See id. In particular, the district court noted that the parties
agreed that the state court action should be treated as an appeal of the
designation. See id.

10
III. DISCUSSION

A. Substantive Due Process

Sameric's complaint asserts a 42 U.S.C. S 1983 claim
that the Historical Commission's designation of the Boyd
Theater as historic and its subsequent denial of the
demolition permit violated Sameric's substantive due
process rights. According to Sameric, the defendants, in
taking these actions, were motivated by the ultra vires
purpose of obtaining a venue for live performances and,
notwithstanding this purpose, they acted without factual
support thus rendering their actions arbitrary and
irrational. The district court granted defendants' motion for
summary judgment, holding that it was proper under the
ordinance to designate the theater based upon its potential
as a performance space and that Sameric therefore failed to
establish that there was a genuine issue of material fact
that the defendants acted either with an improper motive or
without a rational basis.6

We exercise plenary review of the district court's grant of
summary judgment. See City of Erie v. Guaranty Nat'l Ins.
Co., 109 F.3d 156, 159 (3d Cir. 1997). We will affirm the
summary judgment if, after a plenary review of the record,
we find that there is no genuine issue of material fact for
trial and the moving party is entitled to judgment as a
_________________________________________________________________

6. In the alternative, the district court held that the individual
defendants were entitled to qualified immunity from the federal claims
because they were following their own reasonable interpretation of the
ordinance. Given our conclusion that Sameric has not established a
violation of a constitutional right, we need not consider the immunity
issue. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793
(1991) (stating that in considering whether a defendant is entitled to
qualified immunity, a court first should consider whether the plaintiff
has alleged a violation of a constitutional right).

We note, however, that, in the context of land-use decisions, this court
has recognized the importance of broadly granting immunity to members
of local boards to allow them to make decisions without the threat of
being sued by every disgruntled applicant. See Bass v. Attardi, 868 F.2d
45, 50 & n.11 (3d Cir. 1989) (citing Anastasio v. Planning Bd. of Twp. of
W. Orange, 507 A.2d 1194, 1208 (N.J. Super. Ct. App. Div. 1986)).

11
matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10
(1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-
Delaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). An issue
is "genuine" if the evidence permits a reasonable jury to
return a verdict for the non-moving party, accepting its
evidence as true and drawing all justifiable inferences from
the evidence in its favor. See Anderson, 477 U.S. at 248,
255, 106 S.Ct. at 2510, 2513.

Section 1983 is not a source of substantive rights, but
provides a remedy against state officials for violations of
constitutional rights. See City of Oklahoma City v. Tuttle,
471 U.S. 808, 816, 105 S.Ct. 2427, 2432 (1985) (plurality
opinion); Baker v. McCollan, 443 U.S. 137, 144 n.3, 99
S.Ct. 2689, 2694-95 n.3 (1979). The initial inquiry in a
section 1983 suit is (1) whether the conduct complained of
was committed by a person acting under color of state law7
and (2) whether the conduct deprived the complainant of
rights secured under the Constitution or federal law. See
West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55
(1988); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d
Cir. 1995).

To establish a substantive due process claim, a plaintiff
must prove that it was deprived of a protected property
interest by arbitrary or capricious government action. See
Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290
(3d Cir. 1993). Because the defendants conceded in the
district court that Sameric had a property interest sufficient
to invoke the protections of substantive due process, the
only issue on this point is whether the City
unconstitutionally deprived Sameric of that interest. A
substantive due process violation is established if "the
government's actions were not rationally related to a
legitimate government interest" or " `were in fact motivated
_________________________________________________________________

7. There is no dispute that the defendants herein are "persons" acting
under color of state law. The City is subject to section 1983 liability
for
injuries caused by its official policies and customs, see Monell v.
Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38
(1978), and actions by the Historical Commission, one of its agencies,
constitute such official policies, see Pembaur v. City of Cincinnati, 475
U.S. 469, 480, 106 S.Ct. 1292, 1298 (1986).

12
by bias, bad faith or improper motive.' " Parkway Garage,
Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993)
(quoting Midnight Sessions, Ltd. v. City of Philadelphia, 945
F.2d 667, 683 (3d Cir. 1991)); see also Independent Enters.,
Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165,
1179 (3d Cir. 1997) (government's deliberate and arbitrary
abuse of authority violates substantive due process); Bello
v. Walker, 840 F.2d 1124, 1129-30 (3d Cir. 1988) (same).
The former inquiry is a question of law for the court
whereas, if there is a genuine dispute of fact, the latter is
a question for resolution by the jury. See Parkway Garage,
5 F.3d at 692.

1. Designation of the Boyd Theater

a. Improper Motive

Sameric alleges that the City designated the Boyd Theater
based on its desire to procure live performance space, a
consideration not within its authority under the ordinance,
which thus was an improper motive. However, because the
district court construed the ordinance to permit historic
designation based on that consideration, the district court
found that Sameric failed to establish a genuine issue as to
whether the City acted with an improper motive. Sameric
contends that the district court erred in its interpretation of
the ordinance and therefore concludes that the district
court erred in granting summary judgment because it
based its determination upon an erroneous interpretation of
the ordinance. Although we agree that the district court
erred in its interpretation of the ordinance and its analysis
of the allegedly improper purpose thereby is flawed, we will
affirm the grant of summary judgment for the following
reasons.

Our disposition of this issue involves three inquiries: (1)
whether the consideration of the potential uses and future
cultural value of a building is improper under the
ordinance; and, if so, (2) whether Sameric presented
evidence which creates an issue of fact as to whether the
Commission was motivated by such considerations; and (3)
whether the Commission acted with an "improper purpose"

13
under substantive due process principles in considering
criteria unauthorized under state law. We will discuss these
inquiries in turn.

Under the ordinance, a building may be designated as
historic if it:

(a) Has significant character, interest or value as part
of the development, heritage or cultural characteristics
of the City, Commonwealth or Nation or is associated
with the life a person significant in the past; or

(b) Is associated with an event of importance to the
history of the City, Commonwealth or Nation; or,

(c) Reflects the environment in an era characterized by
a distinctive architectural style; or,

(d) Embodies distinguishing characteristics of an
architectural style or engineering specimen; or,

(e) Is the work of a designer, architect, landscape
architect or designer, or engineer whose work has
significantly influenced the historical, architectural,
economic, social, or cultural development of the City,
Commonwealth or Nation; or,

(f) Contains elements of design, detail, materials or
craftsmanship which represent a significant
innovation; or,

(g) Is part of or related to a square, park or other
distinctive area which should be preserved according to
an historic, cultural or architectural motif; or,

(h) Owing to its unique location or singular physical
characteristic, represents an established and familiar
visual feature of the neighborhood, community or City;
or,

(i) Has yielded, or may be likely to yield, information
important in pre-history or history; or,

(j) Exemplifies the cultural, political, economic, social
or historical heritage of the community.

Phila. Code S 14-2007(5). In addition, the ordinance
announces the following purposes:

14
 (.1) preserve buildings, structures, sites and objects
which are important to the education, culture,
traditions and economic values of the City; . . .

(.5) strengthen the economy of the City by enhancing
the City's attractiveness to tourists and by stabilizing
and improving property values;

Phila. Code S 14-2007(1)(b).

Relying on the first enumerated criterion and thefirst
and fifth stated purposes, the district court found that the
ordinance is "broad enough to protect the possible cultural
and economic gains which could accrue from preserving a
theater of this size." Sameric Corp. of Del., Inc. v. City of
Philadelphia, 1997 WL 399374, at *4. Thus, the court found
that to the extent the Commission based its decision upon
economic and cultural interests, it acted permissibly under
the ordinance and noted that the ordinance was "not so
narrow that it precludes historic designation based on
either the size of the theater or its suitability as a
performance venue." Id.

We agree with the district court to the extent that it
found that the ordinance permits consideration of cultural
and economic factors. The plain language of the ordinance
clearly refers to such considerations, see Phila. Code S 14-
2007(1)(b)(.1) & (.5), and the ordinance declares a broad
public policy to preserve the "historic, architectural,
cultural, [and] aesthetic" merit of buildings. See Phila. Code
S 14-2007(1)(a). In addition, the ordinance requires that the
Historical Commission be composed of individuals with
diverse expertise, emphasizing the concern for the culture,
economy, and development of the City.8 See Phila. Code
S 14-2007(3). We, however, cannot agree that the ordinance
permits designation based upon the potential value of the
theater if converted to a live performance venue.
_________________________________________________________________

8. The ordinance requires that the Historical Commission be composed,
inter alia, of the Director of Commerce, the Chairman of the City
Planning Commission, a real estate developer, a representative from a
community development corporation, and a representative from a
community organization.

15
Under Pennsylvania law, " `the power and authority to be
exercised by administrative commissions must be conferred
by legislative language clear and unmistakable. A doubtful
power does not exist.' " United Artists' II, 635 A.2d at 622
(quoting Pennsylvania Human Relations Comm'n v. St. Joe
Minerals Corp., 382 A.2d 731, 735-36 (Pa.1978)). Because
we find that the plain language of the ordinance does not
confer clear and unmistakable authority to designate a
building based upon its potential, future cultural value, we
hold that the Historical Commission does not possess such
authority.

The enumerated purpose of the statute which relates
most directly to the culture of the City, see Phila. Code
S 14-2007(1)(b)(.1), speaks in terms of the present
importance of the building to the City's culture. More
importantly, the criteria enumerated in the ordinance
conspicuously and consistently refer to the value of a
building in the present tense. In particular, thefirst
enumerated criterion for historic designation, upon which
the City primarily relies, allows designation where the
building "has significant . . . value as part of the
development . . . of the City." Phila. Code S 14-2007(5)(a).
The City argues that this criterion encompasses a
designation where, as here, the Historical Commission finds
that a building, if converted to a use for which it is
suitable, would further a plan for the development of the
City.

We disagree. While the "development" of the City
necessarily refers to the future of the community, the
ordinance only refers to the present value of a building,
which is on its face limited to a consideration of the present
condition of a building. The ordinance clearly permits the
Historical Commission to consider the future in only one
instance, which is not applicable here -- the possibility that
a building will yield important information. See Phila. Code
S 14-2007(5)(i). Thus, the ordinance does not clearly permit
the Historical Commission to consider potential uses of a
building in evaluating its value.

In addition, our interpretation follows the lead of the
Pennsylvania Supreme Court's interpretation of this
ordinance. To our knowledge, the state court proceedings in

16
this dispute, culminating in a decision by that court, have
generated the only published judicial interpretation of this
ordinance. It is axiomatic that the highest court of a state
is the final arbiter of that state's law. See West v. American
Tel. & Tel. Co., 311 U.S. 223, 236, 61 S.Ct. 179, 183
(1940). Thus, although the Pennsylvania Supreme Court
has not addressed the precise issue which we now
consider, we give great weight to its interpretation of this
ordinance in United Artists' II. We find that the district
court's interpretation is inconsistent with the Pennsylvania
Supreme Court's interpretation of the ordinance, namely
that the Historical Commission has no authority to
designate a building on the basis of its interior.

In United Artists' II, the court held that "[t]he Historical
Commission is not explicitly authorized by statute to
designate the interior of the building as historically or
aesthetically significant." United Artists' II, 635 A.2d at 622.
The court began its analysis by noting the "clear and
unmistakable" language standard in Pennsylvania
administrative law. See id. The court then turned to the
language of the ordinance and found that the only reference
to the interior of the building in Phila. Code S 14-2007 is in
the subsection which imposes upon the owner of a historic
building the duty of care. See id. Because the language in
that section concerns the interior only for the express
purpose of supporting the exterior, the court found that it
was beyond the Historical Commission's authority to
designate a building based upon its interior.9 See id.

We find that, if the ordinance does not permit historic
designation based upon an historic or aesthetic feature of
the interior of a building, it necessarily does not permit
designation based upon the cultural value or potential uses
of the interior. This conclusion, in addition to our own
_________________________________________________________________

9. Section 14-2007(8)(c) provides that

[t]he exterior of every historic building, structure and object and
of
every building, structure and object located within an historic
district shall be kept in good repair as shall the interior
portions of
such buildings, structures and objects, neglect of which may cause
or tend to cause the exterior to deteriorate, decay, become damaged
or otherwise fall into a state of disrepair.

17
interpretation of the plain language of the ordinance, leads
us to the determination that the district court erred in its
interpretation of the ordinance. This determination,
however, does not end our inquiry. We also must consider
whether Sameric established a genuine issue as to whether
the Historical Commission was motivated by such a
consideration, and, if such an issue exists, whether, as a
matter of law, that motivation would constitute an
"improper motive" under substantive due process
jurisprudence.

Citing primarily the testimony of one of the
Commissioners, Barbara Kaplan, Sameric contends that it
has produced evidence which creates a genuine issue of
fact regarding the motivation of the Historical Commission
in voting to designate the Boyd Theater. In her comments
at the designation hearing and her deposition testimony,
Commissioner Kaplan expressed her interest in the theater
as cultural space, admitted that she considered potential
uses of the theater, and stated that she was aware of the
community's need for live performance space.

We have held that evidence regarding the intentions of
single member of a zoning board can create a genuine issue
of fact as to the board's motive. See DeBlasio v. Zoning Bd.
of Adjustment for the Twp. of W. Amwell, 53 F.3d 592, 602
(3d Cir. 1995) (evidence that one member of the zoning
board acted for personal reasons was sufficient to create a
genuine issue as to whether the board's decision was
influenced by that member's personal interest, and thus
acted with an improper motive). Thus, given the evidence of
Commissioner Kaplan's motivation, we assume without
deciding that this evidence creates a genuine issue of fact
regarding whether the Historical Commission was
motivated by the Boyd Theater's potential use and cultural
value as performance space.

However, only issues of material fact preclude entry of
summary judgment. As the Supreme Court has stated,
"[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted." Anderson,
477 U.S. at 248, 106 S.Ct. at 2510. Because this motive is

18
not improper under substantive due process law, this issue
of fact is not material, and summary judgment was proper.

On this issue, at the outset we note that Sameric has not
established, or for that matter even alleged, that the
Historical Commission's decision to designate the building
was motivated by personal gain, individuous discriminatory
intent, or partisan political considerations, the presence of
which we have found establish substantive due process
claims based upon improper motive. See, e.g., DeBlasio, 53
F.3d at 601 (personal financial interest); Parkway Garage,
5 F.3d at 697 n.6 (economic motivation); Bello, 840 F.2d at
1129 (partisan political or personal reasons); see also Grant
v. City of Pittsburgh, 98 F.3d 116, 119 (3d Cir. 1996)
(alleging that the defendants were motivated by partisan
politics in designating an area as historic as they intended
to thwart plaintiffs' development project so that the mayor
would not receive credit for the resulting economic
benefits).

Rather, Sameric proffers that the City's improper motive
was its ultra vires reliance on procuring live performance
space for the community. As discussed above, we find that
the City did exceed its authority to the extent that it based
its decision upon such a motivation. This error, however, is
only one of law, and such an error is not sufficient in itself
to establish a substantive due process claim. See Snowden
v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402 (1944);
Midnight Sessions, 945 F.2d at 684 (stating that federal
courts are not in the business of granting federal"remedies
for mere violations of state law"); Archie v. City of Racine,
847 F.2d 1211, 1216-18 (7th Cir. 1988) (en banc) (holding
that a violation of state law does not amount to a violation
of due process).

We recognize that, to prove a substantive due process
claim, a plaintiff need not establish in every case that the
defendants sought to advance personal interests. See
Parkway Garage, 5 F.3d at 697 n.6. We find, however, that
Parkway Garage does not lend Sameric support beyond
that point. In Parkway Garage, the plaintiff alleged that the
City violated its substantive due process rights by
prematurely and unjustifiably terminating its lease and
closing the garage that the plaintiff managed on the

19
property. See id. at 689-91. While the City contended that
its actions were in furtherance of the public safety to avoid
the imminent collapse of the plaintiff's parking garage, the
plaintiff presented evidence that this alleged motivation was
a pretext. See id. at 693-94. Rather, according to the
plaintiff, the City was motivated economically because the
property was more valuable to the City without the
encumbrance of the plaintiff's lease. Thus, we held that if
the plaintiff proved that the defendants where driven by the
economic benefit to the City, such a motivation would
establish an improper motive sufficient to sustain a
substantive due process claim. See id. at 699.

There is no allegation here that the City sought to
advance its direct economic position in designating the
theater. Thus, this case differs fundamentally from
Parkway Garage in which the City owned property involved
in the case. Taken in the light most favorable to Sameric,
the evidence supports an inference that the Historical
Commission considered the potential uses of the Boyd
Theater, which the Commission believed could fill a void in
the community. There is not sufficient evidence, however,
that the City was in a position to realize the type of direct
economic gain alleged in Parkway Garage. Thus, we find
that Sameric has not produced evidence of an "improper
motive."10

b. Arbitrary and Irrational Government Action

As an independent basis for its substantive due process
claim, Sameric also alleges that the City acted arbitrarily
and irrationally in designating the Boyd Theater. Relying
again on its interpretation of the ordinance, the district
court concluded that because a designation as historic may
be based upon its "significant interest or value to the
_________________________________________________________________

10. Our conclusion that summary judgment was appropriate in this case
is not at odds with the notion that the determination of whether
defendants were motivated by bias, personal interest, or other improper
motive is, if there is a genuine dispute of fact, a question of fact for
the
jury. See Parkway Garage, 5 F.3d at 692, 697 n.6. Here, we conclude
that the particular motive which Sameric alleged is not improper as a
matter of law.

20
development of the City," Sameric Corp. of Del., Inc. v. City
of Philadelphia, 1997 WL 399374, at *5, Sameric did not
present evidence which creates a genuine issue of fact that
the defendants lacked a rational basis for designating the
Boyd Theater as historic. Sameric contends that because
the district court based its holding on a misinterpretation of
state law, we should reverse the grant of summary
judgment. Again, although we agree that the district court
erred in its interpretation of the ordinance, we find that
Sameric has not produced sufficient evidence from which a
jury could find arbitrary and irrational government
conduct.

We have held that, in the context of a land-use decision,
"the deliberate and arbitrary abuse of government power
violates an individual's right to substantive due process."
Bello, 840 F.2d at 1129 (declining to define the "outer limits
of the showing necessary to demonstrate" arbitrary and
irrational governmental action because the plaintiff
adduced evidence that the decision was based upon
"partisan political or personal reasons unrelated to the
merits of the application for the permits"); see also
DeBlasio, 53 F.3d at 601. Government conduct is arbitrary
and irrational where it is not rationally related to a
legitimate government purpose. See Parkway Garage, 5
F.3d at 692; Midnight Sessions, 945 F.2d at 692; Pace
Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1035
(3d Cir. 1987).

Our review of a locality's land-use decision asks whether
the locality "could have had a legitimate reason for its
decision." Pace, 808 F.2d at 1034, 1035 (citing Shelton v.
City of College Station, 780 F.2d 475, 483 (5th Cir. 1986)
(en banc) (holding that "federal judicial interference with a
state zoning board's quasi-legislative decisions, like
invalidation of legislation for `irrationality' or `arbitrariness,'
is proper only if the governmental body could have no
legitimate reason for its decision")). Thus, in Pace, we found
that summary judgment for the defendant was appropriate
because the township "could have had rational reasons for"
its land-use decision relating to the property owner's
development plan "and because th[e] complaint allege[d] no
facts suggesting arbitrariness." Id. at 1036. In holding that

21
the plaintiff in Pace did not allege sufficiently a substantive
due process violation, we also noted that it did"not present
a case involving actions aimed at this developer for reasons
unrelated to land use planning." Id. at 1035.

In Pace, we cited with approval Creative Environments,
Inc. v. Estabrook, 680 F.2d 822 (1st Cir. 1982), which we
again find persuasive. In Creative Environments, the
plaintiff alleged that the town frustrated the plaintiff's
development plans by "distorting" state law. See id. at 829.
The court held that the plaintiff did not establish a
constitutional violation and noted that "[t]his would be true
even were planning officials to clearly violate . . . the state
scheme under which they operate." Id. at 833 (footnote
omitted). According to the court, the case was an average
dispute between a property owner and the local zoning
body and every developer's challenge to a land-use decision
necessarily involves some claim that the board exceeded or
abused its legal authority. See id.; see also Anastasio v.
Planning Bd. of Twp. of W. Orange, 507 A.2d 1194, 1206
(N.J. Super. Ct. App. Div. 1986) ("Accordingly while the
words `arbitrary and capricious' may sound harsh, they are
simply the standard of appellate review in particular
cases.").

As in Pace, Sameric has not presented a claim that the
City acted for reasons "unrelated to land use planning." We
again note that in undertaking this analysis, we consider
the action without regard for whether it was sanctioned
legislatively. See Snowden, 321 U.S. at 11, 64 S.Ct. at 402.
In Snowden, the plaintiff alleged that the state primary
election board deprived him of due process and equal
protection because it refused to certify him as a candidate,
in violation of state law. See id. at 2-5, 64 S.Ct. at 398-99.
In Snowden, the Court stated that

[i]f the action of the Board is official action it is subject
to constitutional infirmity to the same but no greater
extent than if the action were taken by the state
legislature. Its illegality under the state statute can
neither add to nor subtract from its constitutional
validity. Mere violation of a state statute does not
infringe the federal Constitution. And state action, even
though illegal under state law, can be no more and no

22
 less constitutional under the Fourteenth Amendment
than if it were sanctioned by the state legislature.

Id. at 11, 64 S.Ct. at 402 (citations omitted).

Because our substantive due process analysis does not
depend on the legality vel non of the City's action under
state law, our inquiry here is essentially the inquiry in
which we would engage if the City's ordinance had provided
explicitly for designation based upon the potential use of a
building and such an ordinance was challenged on
substantive due process grounds. In short, the proper
inquiry is whether the City's decision to designate the Boyd
Theater based upon its potential use and cultural value if
converted to live performance space is rationally related to
land-use planning.11

We find that it is rationally related to the legitimate
government objective of land-use planning for the City to
designate buildings that have potential use to the
community. We recognize that an ordinance conferring
such authority would grant broad power to a local board,
and in so holding we make no comment on the wisdom of
such a rule, but decide only that we see no reason why
conferring such authority would be constitutionally infirm
under substantive due process law.

As suggested above, Sameric's allegations are very similar
to those that the Court of Appeals for the First Circuit
found insufficient in Creative Environments. As did the
plaintiff in that case, Sameric presents a claim in the
_________________________________________________________________

11. The majority of Sameric's brief on this issue is devoted to arguing
that the City's action in designating the theater was without factual
basis and therefore amounts to arbitrary and irrational government
conduct. Thus, Sameric reviews the "extensive" evidence presented
against designation to the Historical Commission.

We recognize that there is evidence to suggest that the Boyd Theater
is not as architecturally significant as the Designation Committee
presented. There is also evidence from which a jury could infer that the
Historical Commission was predisposed to designate the theater. This
argument, however, focuses on whether there was sufficient evidence to
support the designation based upon criteria other than the potential
cultural value of the Boyd if converted to a live performance space. This
is not the appropriate inquiry here.

23
nature of an average dispute between a property owner and
local zoning officials. Thus, as we have in the past, we
emphasize here our reluctance to substitute our judgment
for that of local decision-makers, particularly in matters of
such local concern as land-use planning, absent a local
decision void of a "plausible rational basis." Pace, 808 F.2d
at 1035. We decline to federalize routine land-use
decisions. Rather, the validity of land-use decisions by local
agencies ordinarily should be decided under state law in
state courts. After all, surely it would be strange to hold
that the City had no rational basis for designating the
theater when the Common Pleas Court, the Commonwealth
Court, and the district court all thought that its designation
was valid.12

2. Denial of Demolition Permit

Sameric also alleges that the City violated its substantive
due process rights in improperly denying its application for
a demolition permit, although it does not state this claim
separately from the claim based on the historic designation.
Nonetheless, we, like the district court, will treat Sameric's
allegations regarding the denial of the demolition permit as
if they asserted a separate factual predicate for a
substantive due process violation.

a. Ripeness

The district court granted summary judgment in favor of
the defendants on the substantive due process claim based
upon the City's denial of a demolition permit, finding that
such a claim was not ripe. In particular, the district court
held that because Sameric did not complete its appeal of
the denial, there was never a final denial of the permit
application. We exercise plenary review over the district
_________________________________________________________________

12. Our conclusion does not necessarily mean that Sameric will not
receive damages by reason of the historic designation of its property as
it explains in its brief that it "has intervened[in the Common Pleas
Court] for the purpose of seeking an assessment of damages as a result
of the decision by the Supreme Court of Pennsylvania" in United Artists'
II. Of course, we hasten to add our opinion does not depend on whether
Sameric makes a recovery in the state court.

24
court's ripeness determination. See Taylor, 983 F.2d at
1289.

It is well established that, in cases involving land-use
decisions, a property owner does not have a ripe,
constitutional claim until the zoning authorities have had
"an opportunity to `arrive[ ] at afinal, definitive position
regarding how [they] will apply the regulations at issue to
the particular land in question.' "13 Id. at 1291 (quoting
Williamson County Reg'l Planning Comm'n v. Hamilton Bank
of Johnson City, 473 U.S. 172, 191, 105 S.Ct. 3108, 3119
(1985)). Thus, we have held that property owners'
constitutional claims based upon land-use decisions were
premature where the owners or tenants were denied
permits by the initial decision-makers but did not avail
themselves of available, subsequent procedures. See
Acierno v. Mitchell, 6 F.3d 970, 974-75 (3d Cir. 1993)
(owner was denied building permit by Development and
Licensing Division, but did not appeal the denial to the
Board of Adjustment or seek a variance); Taylor, 983 F.2d
at 1289 (owner complained of the zoning officer's revocation
of tenant's use permit where the tenant did not reapply,
appeal to the zoning board, or seek a variance); Midnight
Sessions, 945 F.2d at 686 (holding that the plaintiff's claim
was not ripe where it did not appeal the denial of a
certificate of occupancy to the review board).

In Acierno and Taylor, the property owners challenged the
denial and revocation of permits, respectively. In Acierno,
the county approved the property owner's building plan, of
which compliance with zoning ordinances is a prerequisite,
but denied the owner's application for a building permit,
citing noncompliance with zoning ordinances. See Acierno,
6 F.3d at 976. In Taylor, the zoning officer revoked a
tenant's use permit because the tenant included false
information in his application for the permit. The owner
asserted that the basis for the revocation was a pretext and
that the officer knew of the intended use for the property.
_________________________________________________________________

13. We again note that this finality requirement is not at odds with the
notion that section 1983 claims are not subject to an exhaustion of
remedies requirement. See Taylor, 983 F.2d at 1291 n.10 (citing
Williamson, 473 U.S. at 192-94, 105 S.Ct. at 3119-120).

25
See Taylor, 983 F.2d at 1289-90. Thus, in Acierno and
Taylor the property owners alleged harm resulting from a
land-use decision adverse to them.

In both cases, we held that the claims were not ripe
because the property owners or the tenant did not give the
locality an opportunity to make a final determination
regarding how to construe the applicable ordinances and
apply them to the particular property. The same is true
here, where Sameric claims that the local land-use decision
was based on an erroneous application or interpretation of
the local ordinance. In addition, as in Acierno and Taylor,
the applicable ordinance explicitly subjects the initial
decision to review by another body, which owes no
deference to the initial decision-maker. See Acierno, 6 F.3d
at 972, 976; Taylor, 983 F.2d at 1292-93. 14 Thus, we find
that the Department of Licenses' denial was not the City's
final determination of Sameric's rights to a demolition
permit under the ordinance.

Sameric urges that Acierno and Taylor are
distinguishable, and therefore the ripeness requirement
should not apply to its claim. According to Sameric, the
property owners in those cases alleged harm resulting from
the denial of a permit, whereas Sameric alleges harm
resulting from the designation itself. We acknowledge that
Sameric alleges harm resulting from the designation itself,
but it also alleges that the City improperly denied its
application for a demolition permit. To the extent Sameric's
substantive due process claim is based upon the latter,
Acierno and Taylor apply, rendering that portion of
Sameric's claim not ripe.

Sameric also contends that Blanche Rd. Corp. v.
Bensalem Twp., 57 F.3d 253 (3d Cir. 1995), where we
refused to apply the finality requirement, applies here. We
disagree. In Blanche Rd., we further explained the confines
of these cases requiring a final decision by the local
authority regarding a land-use decision. There, the plaintiff
claimed that the local authority abused its power in a
conspiracy to halt the development of its property because
_________________________________________________________________

14. We do not imply that our result would have been different if the
administrative standard of review had been deferential.

26
of the authority's distaste for its plan. After noting that
Acierno involved a claim based upon the merits of the land-
use decision, we found that the property owner's claim in
Blanche Rd. was substantively different because it was not
based on the township's adverse decision, but on its
intentional and improper delay of the process. Inasmuch as
an improper delay could result in damages notwithstanding
the ultimate grant of a permit, we declined to apply the
finality requirement because a review of the permit
decisions was not necessary to resolve the dispute. See id.
at 267-68.

In addition, a portion of the owner's claims related to two
lots to which the owner never exercised its option to
purchase and for which the owner never sought a building
permit because it abandoned the development project. We
held that if the owner's allegations of intentional and
improper delay were proven, even if the permit ultimately
were granted, an arbitrary and intentional delay could
cause damages. See id. at 268. Thus, we found that the
plaintiff's claims were ripe, even to the extent they were
based upon damages allegedly suffered with respect to
these two lots. See id.

We reject Sameric's argument that Blanche Rd. applies
here. According to Sameric, the finality requirement should
not apply because, as in Blanche Rd., a favorable decision
by the Board of License Review would not have prevented
Sameric from incurring the damages it now seeks to
recover. Sameric admits, however, that the grant of the
permit would have reduced its damages. Accordingly, to the
extent that Sameric's claims are based upon the City's
denial of a building permit, they are not ripe. Moreover, an
ordinary lapse of time required for the processing of an
appeal from the denial of a permit does not permit a
plaintiff to recast a case as a delay claim; for if it did the
ripeness requirement effectively would be eliminated.

We again stress the importance of the finality
requirement and our reluctance to allow the courts to
become super land-use boards of appeals. Land-use
decisions concern a variety of interests and persons, and
local authorities are in a better position than the courts to
assess the burdens and benefits of those varying interests.

27
See Taylor, 983 F.2d at 1291. Judicial review of the City's
denial of Sameric's application for a demolition permit
would be inappropriate because it would permit Sameric to
have denied the City the opportunity to render a final
decision regarding how to interpret and apply the
ordinance. See id. at 1292.

Thus, we find that the district court properly held that
the claim based upon the denial of the demolition permit
was not ripe. Ordinarily, because a ripeness determination
concerns the justiciability of a claim, which the district
court should resolve on a motion to dismiss rather than on
a motion for summary judgment, where this courtfinds
that the district court properly held that the plaintiff's claim
is not ripe, this court should vacate the grant of summary
judgment and remand to the district court with instructions
to dismiss the claim. See Taylor, 983 F.2d at 1290 (citing
Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d
498, 508 (9th Cir. 1990)); see also Acierno, 6 F.3d at 971.
Here, however, we see no reason to disturb the grant of the
summary judgment as Sameric's abandonment of its appeal
from the denial of the demolition permit after it sold the
property ensures that its claim based on the denial never
can be ripe. Thus, in this case Sameric's claim with respect
to the denial of the demolition permit is not simply
"premature," see Taylor, 983 F.2d at 1287, rather, it never
will ripen. We thus would require the parties to waste their
time if we remanded the case for the district court to
convert the summary judgment into an order of dismissal.

b. Statute of Limitations

Even if this claim were ripe, we would affirm the
dismissal of Sameric's claim based upon the denial of the
demolition permit because it is barred by the statute of
limitations. Although the City apparently raised this
argument in its motion for summary judgment, the district
court did not reach this issue in view of its conclusion that
any claim based upon that denial was not ripe for judicial
consideration.

In actions under 42 U.S.C. S 1983, federal courts apply
the state's statute of limitations for personal injury. See

28
Wilson v. Garcia, 471 U.S. 261, 276-78, 105 S.Ct. 1938,
1947-48 (1985); 287 Corporate Ctr. Assocs. v. Township of
Bridgewater, 101 F.3d 320, 323 (3d Cir. 1996). Thus,
because Pennsylvania's statute of limitations for personal
injury is two years, see 42 Pa. Cons. Stat. Ann. S 5524
(West Supp. 1997), Sameric's due process claims are
subject to a two-year statute of limitations. See Smith v.
City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985).

A section 1983 cause of action accrues when the plaintiff
knew or should have known of the injury upon which its
action is based. See de Botton v. Marple Twp., 689 F. Supp.
477, 480 (E.D. Pa. 1988). According to the City, the very
last date that a cause of action based upon the denial of
the permit could have accrued was in 1988 when Sameric
abandoned its appeal to the Board of License Review.
Because Sameric did not institute this suit until 1995, the
City concludes that the statute of limitations bars this
action.

Sameric contends, however, that the "continuing wrong"
doctrine, which tolls the statute of limitations, renders its
claim based upon the denial of the demolition permit
timely. Under this doctrine, a federal cause of action based
upon the defendant's continuing conduct is timely provided
that the last act of that continuing conduct is within the
period for the commencement of an action specified by the
statute of limitations. See 287 Corporate Ctr. Assocs., 101
F.3d at 324 (quoting Brenner v. Local 514, United Bhd. of
Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.
1991)). In applying the doctrine, this court focuses on the
affirmative acts of the defendant. See id.

Sameric urges this court to find that its claim was tolled
by its challenges to the designation of the theater in the
state court. Sameric bases its argument largely on the
district court's ruling, from which the City does not appeal,
regarding the timeliness of its claims. The district court,
ruling on a motion to dismiss in this case, held that
Sameric's substantive due process claims based upon the
designation of the theater were not barred by the statute of
limitations. See Sameric Corp. of Del., Inc. v. City of
Philadelphia, Civ. A. No. 95-7057, 1996 WL 47973 (E.D. Pa.
Feb. 2, 1996). The district court found that the cause of

29
action accrued on April 14, 1987, the date on which the
Historical Commission officially notified Sameric of the
designation, but found that the "continuing wrong" doctrine
tolled the running of the statute of limitations. See id. at *3.
The district court held that because Sameric was diligent in
pursuing its claim with respect to the invalidity of the
designation and the defendants continuously opposed
Sameric's challenges in state court, the doctrine applied.
Thus, Sameric's complaint, filed on November 8, 1995, was
timely because it was filed within two years from the end of
the state court litigation on November 9, 1993. See id. at
*4.

We cannot agree that the result is the same here. We
acknowledge that an historic designation factually underlies
every cause of action based upon the denial of a demolition
permit required by the ordinance because a demolition
permit is only necessary under the ordinance where a
building has been historically designated. In that sense
alone a claim based upon a denial of a demolition permit is
dependent upon the designation. The ordinance establishes
procedures regarding applications for demolition permits
separate from those concerning the historic designation of
a building. Moreover, because the ordinance sets forth
separate standards for historic designation and for the
issuance of a demolition permit, the propriety of the City's
denial of a demolition permit under the ordinance is
independent from the propriety of the designation itself.
Thus, a cause of action based upon an improper denial of
a demolition permit exists regardless of the validity of the
underlying historic designation.

Although Sameric diligently objected to the designation of
the theater in state court, it abandoned its appeal of the
denial of the demolition permit sometime in 1988 after
selling the theater to United Artists. In addition, Sameric
instituted its state court proceedings challenging the
historic designation of the Boyd Theater prior to the
Historical Commission's denial of its application for a
demolition permit.15 Thus, because the two claims are
_________________________________________________________________

15. Sameric instituted its state court challenge to the designation on
April 24, 1987, see app. 845, and the Historical Commission denied its
permit application on December 2, 1987.

30
independent, application of the "continuing wrong"
doctrine, as urged by Sameric, would be inappropriate here
as its diligence did not relate to pursuing the permit. To the
contrary, it abandoned its attempt to obtain the permit
many years before it filed this action. Based upon the
foregoing, we hold that the "continuing wrong" doctrine
does not apply to toll the running of the statute of
limitations with respect to Sameric's claim based upon the
denial of its permit application.

B. Pennsylvania Constitutional Claims

Sameric's complaint also alleges that the defendants'
conduct deprived it of "the equal protection and[its] rights,
privileges and immunities" guaranteed under the
Pennsylvania Constitution. App. 857. The defendants
asserted a governmental immunity defense to these claims
under the Political Subdivision Tort Claims Act (the"Act"),
42 Pa. Cons. Stat. Ann. SS 8541-8564 (West 1982 & Supp.
1997). According to the district court, the individual
defendants were immune under the Act because they did
not consider factors outside of their authority. Again,
although the district court based its analysis upon an
erroneous interpretation of the ordinance, we affirm its
conclusion.

The City is immune from Sameric's claims arising under
the equal protection and civil rights sections of the
Pennsylvania Constitution because the Act grants it
immunity from claims for monetary damages except with
respect to eight specific types of tortious conduct, none of
which is applicable here. See 42 Pa. Cons. Stat. Ann.
S 8542(b) (specifying that liability may be imposed upon the
local agency for damages resulting from the following acts:
the operation of a motor vehicle; the care or custody of
personal or real property of others in the possession of the
agency; dangerous conditions resulting from trees, traffic
controls or street lighting; dangerous conditions resulting
from utility service facilities; dangerous condition of streets
and sidewalks; and the care or custody of animals in the
possession of the agency); Agresta v. Goode, 797 F. Supp.
399, 409 (E.D. Pa. 1992). In fact, Sameric conceded during
the district court proceedings that the Act barred the state

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constitutional claims asserted against the City. See Sameric
Corp. of Del., Inc. v. City of Philadelphia, 1997 WL 399374,
at *7.

We also find that the individual defendants are immune
under the Act from Sameric's state constitutional claims.
Under the Act, individual defendants are immune from
liability for acts within the scope of their employment to the
same extent as their employing agency, see 42 Pa. Cons.
Stat. Ann. S 8545,16 except that they are liable if their
conduct amounts to actual fraud, crime, actual malice or
willful misconduct. See 42 Pa. Cons. Stat. Ann. S 8550.17
"Willful misconduct," as used in section 8550, requires
evidence that the defendants actually knew that their
conduct was illegal. See Renk v. City of Pittsburgh, 641 A.2d
289, 293-94 (Pa. 1994); see also In re City of Philadelphia
Litig., 938 F. Supp. 1264, 1271 (E.D. Pa. 1996). Because
there is insufficient evidence that the individual defendants
actually knew that their conduct was illegal and no
evidence at all that crime, fraud, or malice is implicated
here, the district court properly granted summary judgment
in favor of the individual defendants based upon immunity
under the Act.
_________________________________________________________________

16. Section 8545 states that

[a]n employee of a local agency is liable for civil damages on
account
of any injury to a person or property caused by acts of the
employee
which are within the scope of his office or duties only to the same
extent as his employing local agency and subject to the limitations
imposed by this subchapter.

42 Pa. Cons. Stat. Ann. S 8545.

17. Section 8550 states that the immunity, indemnity, and damage
limitations of the Act do not apply

[i]n any action against a local agency or employee thereof for
damages on account of an injury caused by the act of the employee
in which it is judicially determined that the act of the employee
caused the injury and that such act constituted a crime, actual
fraud, actual malice or willful misconduct.

42 Pa. Cons. Stat. Ann. S 8550.

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IV. CONCLUSION

For the foregoing reasons, we will affirm the district
court's grant of summary judgment to the defendants.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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