concurring in part and dissenting in part.
I respectfully dissent. The majority states that .the issue is whether Mayor Goode “knew or recklessly disregarded the relevant facts that disclosed that the garage was not. in imminent danger of collapse when he summarily decided to close it on December [3], 1990.”1 Majority at 692-93. The majority, *703of course, recognizes that in this action under 42 U.S.C. § 1988 respondeat superior is inapplicable and I agree with that statement of the law. See Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); Simmons v. City of Philadelphia, 947 F.2d 1042, 1063 (3d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992). I part company, however, with the majority because in my view the evidence cannot support a conclusion that the Mayor knew or recklessly disregarded facts showing that the garage was not in imminent danger of collapse on December 3, 1990. Indeed, on the basis of the information available to the Mayor he might have acted recklessly if he had not closed the garage. At the outset I shall tell the reader who supplied testimony that the Mayor acted other than to forestall what appeared to him to be a looming disaster: nobody. I also shall tell the reader what the testimony was that, the Mayor had information that the garage was not in imminent danger of collapse: none. Thus, despite its acknowledgement that respondeat superior is inapplicable, the effect of the majority’s opinion is to impose liability on the city on the basis of that legal doctrine.
The district court in granting the city judgment on the. section 1983 claim found that Parkway failed to produce any evidence demonstrating that the Mayor closed the garage for reasons other than his concern for its safety. Furthermore, the district court indicated that there was no evidence showing that he acted to benefit the Parking Authority’s economic status:
Nowhere in the record is there any evidence that Mayor Goode ... deliberately acted to violate Parkway’s civil rights. Rather, the evidence shows only that May- or Goode, faced with reports submitted by a reputable engineer expressing concern over the safety of the garage, made a decision to close the facility.
The district court noted further that the evidence only showed:
that Goode ... met with various individuals to discuss the engineering reports regarding the garage’s structural soundness, the overall safety of the facility, and the option of closing the garage. Even if the jury found that some individuals at the meeting misrepresented the condition of the garage or themselves had improper motives for requesting that the garage be closed, the jury could not • have found, based on the evidence, that Mayor Goode [was] aware of these misrepresentations or improper motives or that [he] recklessly disregarded any indication of impropriety in the requests to close the garage.
In its opinion, the district court thus demonstrated that it fully understood that the critical issue was the Mayor’s scienter. The majority, of course, states the issue in the same way. Thus, I will describe what the record shows with respect to the information available to the Mayor.
On November 1, 1990, Michael Brainerd, the Parking Authority’s expert engineer, submitted an engineering report to S. David Fineman, the Authority’s counsel, stating that the slabs in the garage were so deteriorated that it was impossible to demonstrate and to assure continued structural safety through engineering calculations or load reports. Significantly, Brainerd’s report repeatedly warned that load tests would be undependable. For example, it stated: “The parking deck slabs have deteriorated to the extent that it is not possible to reliably demonstrate and continually assure their structural safety by periodic inspections and practical load tests.” The report also warned that “the degree of loss of bond between the reinforcement and the concrete cannot be determined by inspection methods that do' not involve significant demolition” and that “[l]oad tests of slabs with severe and widespread corrosion damage ... can produce misleading and dangerous results since they may add further progressive reduction of shear strength without actually producing excessive inelastic deformation or collapse during the test.” Brainerd’s report also indicated that there was probably a “significant reduction in the slab shear strength” and that “[s]hear failure can occur suddenly and without warning.” Brainerd’s report, however, did not state expressly whether the garage was in danger of imminent collapse or whether it should be closed immediately. On November 5, 1990, Fineman forwarded the report to Salley Bellet, an attorney in the City Solicitor’s office.
*704On November 18,1990, the Mayor called a meeting in his office to discuss the implications of Brainerd’s report. Fineman, L & I Commissioner Kligerman, and Bellet attended the meeting. The téstimony indicates that at that meeting the Mayor said that if Brainerd thought that the garage should be closed he should state so in writing expressly. Subsequently, on November 27, 1990, Brainerd rendered another report which reiterated his November 1, 1990 findings but, in addition, recommended that the garage either should be closed or temporarily shored since “the extent of present deterioration of the suspended parking deck slabs is cause for major concern regarding their safety and since their safety can no longer be reliably demonstrated or continually assured.”
After reading Brainerd’s first report, Michael Liberman, the City’s chief civil engineer, conducted his own examination and submitted his own report dated November 20, 1990, stating that the garage was unsafe. Liberman said that his inspection showed that there was delamination or recent repairs around every column on level 1 and that there were cracks through many of the repairs. According to Liberman, the cracks confirmed that Parkway’s repairs were “only cosmetic in nature and they are not holding.” Liberman warned that the deck slabs may be “legally unsafe” because the “delamination threatens the shear strength of the slabs. Failure in shear results in a sudden, catastrophic collapse with no prior'warning, e.g. from sagging.” Liberman concluded that “to attempt to squeeze every last month out of a failing structure is, at this point, irresponsible.” Accordingly, he recommended that “considering the possible consequences ... the garage [should] be closed immediately .and abandoned or reconstructed.” David Wismer, the L & I deputy Commissioner, who was also an engineer, became aware of the Liberman memorandum. On December 3, 1990, Wismer and Liberman conducted a walk-through inspection of the garage at which they concluded that deterioration was occurring at an ever-increasing rate.
On December 3, 1990, the Mayor called another meeting at City Hall. The Mayor, the Managing Director, Kligerman, Wismer, Public Property Commissioner Andres Perez, Bellet, Fineman, and other officials attended the meeting. According to the testimony of all the witnesses who participated at this meeting, the Mayor asked. Kligerman and Perez whether the garage should be closed and they said yes. The testimony als.o indicates that no one in the room challenged this recommendation. Accordingly, the Mayor decided to close the garage, and then left the meeting, delegating to the City Managing Director the decision as to which agency should implement the closing. Kligerman then correctly predicted that Parkway would appeal the closing.
I would find it understandable if at this point a reader of this dissent wondered what the Mayor did that recklessly or intentionally disregarded facts actually known to him that the garage was not in danger of imminent collapse. After all he had engineering reports that load testing was not reliable and that there could be a sudden, catastrophic collapse of the garage and that it should be closed immediately. Furthermore, the reports explained the reasons why their engineer writers reached their conclusions. Faced with the choice on the basis of the information presented to him between risking lives and forcing motorists to find alternative places to park, was the Mayor reckless in refusing to place lives at risk?
Why then does the court reverse the judgment of the district court in favor' of the City? The first reason is that “the Mayor had the garage closed on December 4 without conducting any load tests.” Majority at 693. In this regard the majority points out that load testing is the procedure to determine safety, the City had used it before, and Brainerd had testified at the arbitration hearing that load testing was the only way to determiné if a structure is unsafe.
The problem with this analysis is that Brainerd’s reports indicated that load testing was not reliable in the circumstances then existing at the garage. Of course, there was no evidence that the Mayor was aware of Brainerd’s testimony at the arbitration hearing. More importantly Brainerd’s testimony at the arbitration hearing had been superseded by his reports predicated on a later inspection. Can we really hold that the jury may fairly have concluded that the Mayor *705was reckless or acted intentionally wrongfully by disregarding facts known to him on the basis of his refusal to order tests that the engineering expert said were unreliable? The majority also points out that after the closing, load tests proved the garage to be safe. What the majority cannot explain, however,' is how these tests possibly could have impacted on the Mayor’s earlier decision to close the garage.
Next, the majority points out that Parkway had less than three weeks before December 3, 1990, properly completed repairs to the garage required by the city. While I do not dispute that statement, I fail to see why the completed repairs have any bearing at all on the question of whether the Mayor was reckless or acted intentionally wrongfully on December 3, 1990, when he made his, decision on the basis of the opinions rendered by professionals. Liberman’s report was that the repairs were only cosmetic and were not holding and thus even if they had been completed properly, the Mayor’s information was that the safety problem remained.
The majority also correctly points out that “Fineman testified at trial that in the course of the discussion [on November 18,1990], the Mayor said that he had read Brainerd’s letter of November 1, and that if Brainerd believes the garage should be closed, he ought to put that in a letter.” Majority at 694. This statement generated Brainerd’s next report of November 27, 1990, which flatly stated the garage should be closed. The majority then indicates that Brainerd wrote the second report without conducting any further tests. From this the majority concluded that:
Thus, it was reasonable for the jury in this case to conclude that Brainerd’s revised letter that suggested that the garage be closed was really a response to the May- or’s request to find a way to terminate Parkway’s lease in order to realize economic gain for the City and the Authority. Majority at 694.
The foregoing conclusion is central to the majority’s analysis inasmuch as Brainerd’s second report said the garage should be closed. However, I am at a total loss to understand how the majority reaches its conclusion as there is no basis for it in the record. The majority does not and cannot point to any evidence that the Mayor talked about terminating the lease for éeonomic gain. I cannot join in an opinion saying that the mayor made a request to terminate the lease for that reason when there is no evidence that he did so. The suggestion that the Mayor requested a way to terminate the lease for economic reasons is a pure litigation construct advanced by Parkway.
In fact, the record is absolutely clear as to what happened. In Brainerd’s report of November 1, 1990, he pointed' out that the garage was in a deteriorated condition, but he did not say one way or the other if it was in danger of imminent collapse nor did he say it should be closed. On November 18, 1990, the Mayor said he would not act on the basis of Brainerd’s November 1,1990 report, and if Brainerd believed the garage should be closed he should say so in writing. That, of course, is what Brainerd then did. It is simply not possible to draw an inference from these events that what the Mayor said should be done was to terminate the lease to benefit the City’s and authority’s fiscs.
The majority next acknowledges that Li-berman’s report of November 20, 1990, indicated that the garage should be “closed immediately and abandoned or reconstructed.” But the majority dismisses Liberman’s report on the ground that it “did not state that the garage was in imminent danger of collapse.” Majority at 696. All I can say about this is that the report, after describing the conditions in the garage, indicated that they could lead to “a sudden, catastrophic collapse with no prior warning.” While I suppose that it can be argued that Liberman did not flat out say that there would be a collapse, surely the Mayor cannot be faulted for acting on such a report. After all Liberman described the conditions and said what they could lead to. In any event, Liberman’s report surely cannot be understood as suggesting that the garage was not in imminent danger of collapse. The majority also indicates that Liberman, in fact, did not believe the garage was in imminent danger of collapse but the majority acknowledges Liber-man did not express this opinion to the may- or.
*706Finally, in its analysis of the scienter evidence the majority indicates that “the jury could reasonably have found the testimony of Brainerd, Liberman, and Wismer to be mere attempts to cover up the Mayor’s true motive for closing the garage” and that “the strange circumstances,” including the fact that the garage was ordered closed without prior notice,- “leading up to the garage closing also could have lead a reasonable jury to conclude that the Mayor knew of and personally possessed improper motives for closing the garage.” Majority at 695. .1 simply cannot accept these conclusions. While I agreé that it would have been better for the Mayor to discuss the matter with Parkway before the closing the garage, it is not true that there were “strange circumstances” leading to the-closing. There was nothing strange about what happened. The Mayor received engineering reports that indicated the strong possibility that the City was confronting a catastrophe. He insisted that they be detailed and that Brainerd be clear as to what he meant. He discussed the matter with his' top officials. He then acted to forestall what was presented to him as a disaster waiting to happen.
Furthermore, the problem with the -observation that the testimony could be a cover-up is that there is not even a scintilla of evidence that the Mayor acted for any reason other than to counter the threat to public safety. In addition, no matter what the jury may have thought of these witnesses it could not have concluded that the Mayor did not have the written reports on which he acted. I also point out that even if the jury disregarded the witnesses’ testimony, its mere disbelief of these witnesses could not be a substitute for positive proof that the Mayor acted for improper motives. See Tose v. First Pennsylvania Bank, 648 F.2d 879, 894 (3d Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981).
I am disturbed particularly by the suggestion that the evidence supported a conclusion that the Mayor closed the garage for “improper motives.” There is no point in pretending that the majority’s opinion means something other than what it says. By suggesting that Mayor Goode “possessed improper motives for closing the garage,” the majority says he was dishonest. Yet the majority does not point to a single witness whose testimony, whether directly or by supplying-a basis for an inference, can support a conclusion that the Mayor acted for any reason other than to protect the public interest.
The majority goes on to explain that the Mayor’s improper motive was to terminate Parkway’s lease because the property would be worth more money without it. While the record does support a conclusion that with Parkway gone the City’s economic position would be enhanced, that circumstance proves nothing. Surely the City in exercising its police powers cannot be charged with violating Parkway’s constitutional rights simply because the exercise has the incidental consequence of enhancing its proprietary economic position. In short, absent some basis to tie conduct to motive, a reasonable trier of fact cannot draw an inference of intent predicated on that motive. Here the evidence was that the Mayor acted for one reason and one reason only,- the public safety. In this regard I cannot emphasize too strongly that we are concerned only with the Mayor’s scienter. Whatever motivated other persons, whether they were honest or dishonest, devious or upright, there is no evidence to support a conclusion that the Mayor, when he ordered the garage closed, acted other than to protect the public safety. I also emphasize again that this is not a respondeat superior case.
Finally, notwithstanding the fact that the City may have been better off without Parkway as a tenant in the garage, if we are to consider motive we at least should focus on the particular matter before us. An inquiry into the City’s motives should ask whether it was in the City’s economic interest to order the garage closed on December 3,1990, or, to be more precise, whether a jury reasonably could have drawn an inference that the May- or may have thought on December 3, -1990, that his actions in closing the garage could have been in the City’s economic interest. The answer to this question is surely “no.” The only way that it could be inferred that the Mayor would have thought that closing the garage would have been in the City’s economic interest would have been if he could have anticipated that Parkway would have accepted the order and surrendered its lease without - an administrative and court fight. Otherwise the Mayor had to recognize that the closing would have to be justified before an independent tribunal on the merits.
*707Yet it is perfectly obvious that the history of the disputes between Parkway on the one hand, and the City and the Philadelphia Parking Authority on the other, demonstrated on December 3,1990, that Parkway would not accept docilely the closing order. As the majority points out, there had already been three court actions and an arbitration regarding the lease. In the circumstances, it would have been totally unreasonable for a jury to infer that the Mayor could have believed that he would have aided the City financially by closing the garage. I reiterate, however, that even if that inference could have been drawn, the City nevertheless was entitled to a judgment as a matter of law because there is no basis in the record to conclude that the Mayor acted for economic motives.
In concluding my dissent I add one further point. The implications of this opinion are enormous. To start with, of course, the opinion will cost the City millions of dollars. But the problem goes beyond that. In the future, public officials faced with information that lives are at risk may believe quite reasonably that if they act on the information they may expose the entity they represent as well as themselves to liability under 42 U.S.C. § 1983. ■ Such officials may hesitate when they should act and this may lead to catastrophic consequences. It is obviously no answer to suggest that officials need not be apprehensive if they are honest. If the City can be liable here then who can assure an official whose action seems appropriate at the time that he or she will not in retrospect be viewed as having been reckless or dishonest? After all, as I said at the outset, there was no evidence that the Mayor knew or recklessly disregarded relevant facts that demonstrated that the garage was not in imminent danger of collapse when, he ordered it closed.
My conclusions lead me to dissent from so much of the majority opinion which denies a judgment as a matter of law to the city and the parking authority on the claims under 42 U.S.C. § 1983. However, I agree with the majority with respect to the arbitration costs and the implied covenant of good faith so I' join in the balance of its opinion.
SUR PETITION FOR REHEARING EN BANC’
Dec. 17, 1993.
Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH and LEWIS, Circuit Judges, and ROSENN, Senior Judge.*The petition for rehearing filed by appel-lees, City of Philadelphia and Philadelphia Parking Authority, in the above-entitled case having been submitted to. the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing en banc, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing en banc is denied.
Chief Judge Sloviter and Judge Roth would grant rehearing in banc. Judge Greenberg would grant rehearing for the reasons set forth in his dissent.
. The majority indicates that the issue also includes the question of whether Managing Director Pingree acted knowingly or recklessly but inasmuch as the majority's analysis focuses on the Mayor alone and the Mayor ordered the closing I will approach the case in the same way. I use the date of December 3, 1990, as the Mayor ordered the closing that day, though the actual closing was the following day.