Soppick v. W Conshohocken , 118 F. App'x 631 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-23-2004
Soppick v. W Conshohocken
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1972
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Soppick v. W Conshohocken" (2004). 2004 Decisions. Paper 35.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/35
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-1972
____________
JOSEPH G. SOPPICK; JANET SOPPICK; JEANETTE MCCULLOUGH;
ASHLEY MCCULLOUGH, Both by an through their parents and
natural guardians, Joseph G. and Janet Soppick; JOANNA H.
SOPPICK,
Appellants
v.
BOROUGH OF WEST CONSHOHOCKEN; BOROUGH COUNCIL OF WEST
CONSHOHOCKEN; ZONING HEARING BOARD OF WEST CONSHOHOCKEN;
WILLIAM KEIL; ROBERT LIVINGSTON; GEORGE CARPENTER; JOSEPH
PIGNOLI, Mayor of West Conshohocken; BOROUGH OF WEST
CONSHOHOCKEN POLICE DEPARTMENT; JOSEPH G. CLAYBORNE, Chief
of Police; STEPHEN WALKER, Police Officer; PATRICIA B. BARR,
Borough Council President; JOSEPHINE S. SCHARFF; JOHN COOPER;
MICHAEL PEZZANO; PETER W. VIVIAN; JOSEPH L. COSTELLO; JOSEPH P.
PIGNOLI, JR.; PIERO A. SASSU; JEFFREY WEILER; Z. RAYMOND
SOKOLOWSKI; ROBERT JOHNSTON, P.E.; JAMES CARPENTER; CHARLES
MCHUGH; GEORGE DOUGHERTY; ERIC SMITH; RON PIGNOLI;
CHARLES MAY; MICHAEL DELUCCA; CARMELLA DELUCCA; IRENE
PULTORAK; IRENE YAKONICK
____________
Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 03-cv-00890
District Judge: Honorable Edmund V. Ludwig
____________
Submitted Under Third Circuit LAR 34.1(a) December 13, 2004
Before: NYGAARD, ROSENN, and BECKER, Circuit Judges
(Filed: December 23, 2004)
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
Joseph and Janet Soppick and their daughters Joanna Soppick, Jeanette
McCollough, and Ashley McCollough (“the Soppicks”) brought suit against the Borough
of West Conshohocken et al. (“the Borough”),1 asserting violations of 42 U.S.C. § 1983(“§ 1983”) and related state law claims arising from a “stop work” order the Borough
issued to halt renovations on the Soppicks’ home. The District Court dismissed the
Soppicks’ complaint for being time-barred and for failure to state a claim. The Soppicks
moved for, but were denied, reconsideration of the dismissal. The Soppicks appeal the
District Court’s dismissal of their complaint.
The District Court had jurisdiction over the Soppicks’ § 1983 claims pursuant to
28 U.S.C. §§ 1331 and 1343. See Garvin v. City of Phila., 354 F.3d 215, 219 (3d Cir.
2003). In addition, the District Court had supplemental jurisdiction over their state law
claims under 28 U.S.C. § 1367. Id. We have jurisdiction under 28 U.S.C. § 1291.
I.
In 1996, the Soppicks obtained a building permit from the Borough to renovate
their home. Construction began in 1998 and continued into 1999. On April, 23, 1999,
1
Because this appeal seeks only to resurrect § 1983 claims against the Borough and
government appellees, we do not evaluate any claims against co-appellees who are private
citizens – viz. Eileen Yakonick, Michael DeLucca, or Carmella DeLucca.
2
the Borough, citing its building code, issued a “stop work” order halting the renovations.
The Soppicks contend that the order was issued in retaliation for their public accusations
of misconduct by the Mayor. To prove the illicit nature of the “stop work” order, the
Soppicks requested to view their permit file but their requests were denied. On June 8,
1999, the Borough Council conducted a hearing and upheld the “stop work” order.
Since that time, the Soppicks have been unable to complete renovations and
allegedly have been subject to additional Borough retaliation. In particular, the Soppicks
contend that the Borough failed to properly investigate a series of claims where the family
fell victim, including, inter alia, a claim that the Soppicks’ daughter was raped.
II.
On February 13, 2003, the Soppicks filed suit in the United States District Court
for the Eastern District of Pennsylvania asserting § 1983 claims for violations of the
Soppicks’ right to equal protection and due process. The complaint also asserted state
law claims for: impairment of contractual obligations, breach of implied contract, breach
of quasi-contract, tortious interference with existing and prospective contractual relations,
fraudulent and negligent misrepresentation, estoppel, civil conspiracy, and pendant state
claims (defined as failure to properly investigate a series of incidents involving the
Soppicks as victims).
After appellees moved to dismiss the complaint for failure to state a claim, the
3
Soppicks filed an amended complaint asserting largely the same claims. Count VI2
asserted § 1983 equal protection violations based on: the April 23, 1999, “stop work”
order, appellees’ failure to properly investigate co-plaintiff JoAnna Soppick’s complaint
of being raped on August 6, 2000, and the filing of charges against Mr. Soppick in 1999
for “falsification of documents.”
Count VII asserted § 1983 due process violations based on: the Borough’s May
23, 1999, failure to produce documents regarding the Soppicks’ permit, the Borough
Council’s June 8, 1999, affirmance of the “stop work” order, and the Borough’s alleged
interference with the issuing of permits. The remaining counts, except Count VIII,3 were
state law claims.
On March 9, 2004, the District Court dismissed the Soppicks’ § 1983 claims for
being time-barred and for failure to state a claim. In addition, the Court rejected
supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c)(3).
The Soppicks moved for reconsideration of the District Court’s order to dismiss on the
ground that the Court incorrectly determined the accrual date for each of their § 1983
claims. The District Court denied the Soppicks’ motion to reconsider. While the motion
2
Counts I through V did not include any claims, but merely set forth the
factual background of the case. Therefore, the first claim is numbered “Count VI.”
3
Count VIII asserted § 1983 violations of the right to be free from state laws impairing
contractual relations. However, we do not address Count VIII because it was not raised
on appeal.
4
for reconsideration was pending, the Soppicks timely appealed the District Court’s
dismissal of their complaint. We exercise plenary review of a dismissal order pursuant to
Federal Rule of Civil Procedure 12(b)(6). Angstadt v. Midd-West Sch. Dist., 377 F.3d
338, 342 (3d Cir. 2004).
III.
The parties agree that a two-year limitations period applies to the Soppicks’
§ 1983 claims. The parties disagree, however, as to when the two-year limitations period
began to run on each claim. The Soppicks aver that the statute of limitations period did
not begin to run on these claims until June 9, 2004, when the Zoning Hearing Board of
West Conshohocken sustained the “stop work” order. We disagree. Under federal law,
which governs the accrual of § 1983 claims, a § 1983 cause of action begins to accrue
when the plaintiff knows, or has reason to know, of the injury on which the action is
based. Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998).
The Soppicks knew, or had reason to know, that the injury stemming from the
“stop work” order occurred on the date it was received – April 23, 1999. See Sameric
Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 559-600 (3d Cir. 1998) (cause of action
based upon improper denial of a demolition permit accrued when the permit application
was denied, despite the pendency of state court proceedings challenging the designation
upon which the denial was premised). Therefore, the statute of limitations for the “stop
work” claim expired two years later on April 23, 2001, well before the Soppicks’ filed
5
their complaint on February 13, 2003.
The Soppicks knew, or had reason to know, that the injury stemming from the
Borough’s failure to investigate occurred on or around August 6, 2000, when the
Borough’s failure to investigate became apparent. Therefore, the statute of limitations for
the failure-to-investigate claim expired, at the latest, by the end of 2002. This was well
before the Soppicks filed their complaint on February 13, 2003.
Lastly, the Soppicks knew, or had reason to know, that the injury stemming from
the filing of unlawful charges against Mr. Soppick occurred when the charges were filed
in 1999. Therefore, the statute of limitations expired on their claim after 2001. Again,
this was well before the Soppicks filed their complaint on February 13, 2003.
In addition to the equal protection violations, the Soppicks allege three different
due process violations: the Borough’s M ay 23, 1999, failure to produce documents
regarding the Soppicks’ permit, the Borough Council’s June 8, 1999, affirmance of the
“stop work” order, and the Borough’s interference with the issuing of building permits.
Applying the accrual standard articulated in DeSimone, 159 F.3d at 126, the
Soppicks knew, or had reason to know, of the basis for their failure-to-produce claim on
May 23, 1999, the date their document request was denied. Thus, the statute of
limitations expired two years later on M ay 23, 2001, well before the Soppicks filed their
complaint on February 13, 2003.
The Soppicks knew, or had reason to know, of their injury from the affirmance of
6
the “stop work” order on June 8, 1999, the date the Borough upheld the “stop work”
order. See Sameric Corp of Del., 142 F.3d at 559-600. Therefore, the statute of
limitations expired two years later on June 8, 2001, well before the Soppicks filed their
complaint on February 13, 2003.
Finally, the Soppicks knew, or had reason to know, of their injury stemming from
the Borough’s interference with permits on June 8, 1999, the date the “stop work” order
was upheld by the Borough Council. The statute of limitations thus expired two years
later on June 8, 2001, again, well before the Soppicks filed their complaint.
Because the Soppicks’ complaint was filed on February 13, 2003, considerably
beyond the two-year statute of limitations for each § 1983 claim, the complaint is time-
barred unless the limitations period is tolled by either the “continuing violation” doctrine
or by the pendency of related state court litigation. However, neither is available.
“The continuing violations doctrine is an ‘equitable exception to the timely filing
requirement.’” Cowell v. Palmer Township, 263 F.3d 286, 292 (3d Cir. 2001) (quoting
West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). Where a defendant’s conduct
is part of a continuing practice, an action is deemed timely provided the last act
evidencing the continuing practice falls within the limitations period. Id. To establish a
“continuing violation,” the plaintiff must demonstrate that: (1) there was at least one
violation during the statutory period; and (2) that the defendant’s actions were “more than
the occurrence of isolated or sporadic acts of intentional discrimination.” West, 45 F.3d
7
at 754-55.
The Soppicks attempt to revive their time-barred claims by arguing that the
Borough’s conduct, including the “stop work” order, failure-to-investigate, filing of
charges against Mr. Soppick for “falsification of documents,” failure-to-produce,
improper affirmance of the “stop work” order, and interference with permits, was an
“ongoing pattern of misconduct” that comprised a “continuing violation.” However, the
Soppicks are unable to establish the first requirement of a “continuing violation” – that
any of the alleged violations occurred within the two-year limitations period. The
complaint in this action was filed on February 13, 2003. Thus, any violation of § 1983
occurring before February 13, 2001, is outside the limitations period and time-barred. As
noted, each act occurred before February 13, 2001. Therefore, each claim is time-barred.4
Having determined that the Borough’s acts fail to comprise a “continuing
violation,” the final inquiry is whether the Soppicks’ pending state court litigation tolls
the statute of limitations. It does not. Under Pennsylvania concepts of tolling, which
govern here, see Vernau v. Vic's Market, Inc., 896 F.2d 43, 45 (3d Cir.1990) (“state
tolling principles are generally to be used by a federal court when it is applying a state
4
Given the Soppicks’ inability to establish any constitutional violation during the
statutory period, we need not reach the second requirement of the “continuing violation”
doctrine – that appellees’ conduct is “more than the occurrence of isolated or sporadic
acts.” West, 45 F.3d at 755; see Do Little Corp. v. Bristol, No. Civ.A.01-2344, 2002 WL
32345947, *6 (E.D. Pa. June 19, 2002).
8
limitations period”), the commencement of a related suit in state court does not toll the
running of a Pennsylvania statute of limitations against a federal cause of action.
Ammlung v. City of Chester, 494 F.2d 811, 816 (3d Cir. 1974) (citing Falsetti v. Local
Union No. 2026, United Mine Workers of Am., 355 F.2d 658, 662 (3d Cir. 1966) (the
running of a state statute of limitations against an action in federal court is not tolled by
commencement of unsuccessful suit in state court)). Therefore, although the Soppicks
diligently objected to the “stop work” order through the Borough Council, the pendency
of any related state court litigation does not toll the statute of limitations. Cf. Ellis v.
Dyson, 421 U.S. 426, 432-33 (1975) (it is not necessary to exhaust state law judicial
remedies before bringing an action under § 1983).
Moreover, the issuance of the “stop work” order gave rise to an independent cause
of action that should have been pursued as such. See Sameric Corp. of Del., 142 F.3d at
599-600 (holding that the “continuing violations” doctrine could not be applied to revive
a time-barred claim involving a permit denial because the denial of the permit gave rise to
an independent cause of action and should have been pursued accordingly). Because the
“stop work” claim was not independently pursued before April 23, 2001, it expired with
the running of the two-year statute of limitations.
Having established that neither the “continuing violation” doctrine nor pending
state court litigation tolls the statute of limitations, there is nothing to relieve the Soppicks
of the bar generated by the statute of limitations. As such, their complaint is time-barred.
9
IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
Costs taxed against the appellants.
10