                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2001

Omnipoint Comm. Enterprises v. Zoning Hearing
Board Easttown
Precedential or Non-Precedential:

Docket 99-1932




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Recommended Citation
"Omnipoint Comm. Enterprises v. Zoning Hearing Board Easttown" (2001). 2001 Decisions. Paper 91.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/91


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Filed April 25, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 99-1932 and 99-1990

OMNIPOINT COMMUNICATIONS ENTERPRISES, L.P .
Appellant in No. 99-1990

v.

ZONING HEARING BOARD OF EASTTOWN TOWNSHIP;
TOWNSHIP OF EASTON
Appellants in No. 99-1932

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 99-cv-02080)
District Judge: Honorable Marvin Katz

Argued November 7, 2000

BEFORE: ROTH, RENDELL and STAPLETON,
Circuit Judges

(Opinion Filed April 25, 2001)

       John S. Halsted
       Andrew D.H. Rau (Argued)
       Gawthrop, Greenwood & Halsted
       119 North High Street
       West Chester, PA 19381
        and
       Paola T. Kaczynski (Argued)
       Holsten & Associates
       One Olive Street
       Media, PA 19063
        Attorneys for Appellants/Cross
       Appellees
       James C. Dalton
       Riley, Riper, Hollin & Colagreco
       240 Daylesford Plaza
       P.O. Box 568
       Paoli, PA 19301
        and
       Christopher H. Schubert (Argued)
       Riley, Riper, Hollin & Colagrego
       717 Constitution Drive
       Exton, PA 19341
        Attorneys for Appellee/Cross
       Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The Zoning Hearing Board ("ZHB") of Easttown Township
("Township") appeals the District Court's order directing it
to allow Omnipoint Communications Enterprises, L.P .
("Omnipoint") to erect a telecommunications tower at a
designated site within the Township. The ZHB contends
that the District Court erred in finding that the ZHB's
decision denying Omnipoint's application was not
supported by substantial evidence as requir ed by the
Telecommunications Act of 1996 ("TCA"), 47 U.S.C.
S 332(c)(7)(B)(iii). Omnipoint argues that the District Court
was correct on that score and cross-appeals the District
Court's decision denying it damages and attor neys' fees
under the Civil Rights Act, 42 U.S.C. S 1983. We conclude
that the District Court erred in its analysis of the relevant
state law. Accordingly, we will reverse its order and remand
for proceedings consistent with this opinion.

I.

Omnipoint, a wireless Personal Communications Service
("PCS") provider, entered into a lease with the Or Shalom
Synagogue ("Synagogue"), located in Easttown T ownship, to
erect and operate a communications tower on a portion of
its property. The proposed white fibr eglass tower was to be

                               2
approximately 110 feet tall, with a diameter of 24 inches at
its base and tapering to 16 inches at the top. Omnipoint
planned to enclose the base of the tower in a 30-foot by 30-
foot structure and surround it with an eight-foot tall chain-
link fence topped with barbed wire. To r educe the aesthetic
impact of the tower, Omnipoint suggested using it as a
flagpole, though it conceded that the tower would be taller
and wider than a normal flagpole.

Because the Synagogue property was located in a district
zoned AA-residential and the Township's zoning ordinance
imposed a height limitation of 35 feet in such ar eas,
Omnipoint submitted an application to the ZHB for a use
variance in order to erect its tower . See 53 P.S. S 10910.2.
In the alternative, Omnipoint also submitted a challenge to
the validity of the ordinance under the Pennsylvania
Constitution and the TCA. See 53 P.S.S 10916.1.
Omnipoint alleged that the ordinance was invalid under the
Pennsylvania Constitution because it excluded wir eless
facilities and under the TCA because it had the ef fect of
prohibiting wireless service.

The ZHB held public hearings on three separate dates
over the course of several months to discuss Omnipoint's
application. At these hearings, Omnipoint contended that
the tower was necessary to fill a "gap" in its service in the
southern portion of the Township and of fered the testimony
of several expert witnesses in support of its application. The
Township, on the other hand, called only one witness, its
Manager, who testified that the challenged ordinance was
not exclusionary because it had been interpr eted to permit
special exceptions for cellular facilities in certain areas of
the Township, such as the B-business districts.1 Numerous
Township residents also attended the hearings and
expressed their opposition to the siting of the tower, largely
on the basis that it would be an eyesore in the residential
community in which it was to be situated.

At the conclusion of the hearings, the ZHB denied
Omnipoint's application, stating its decision orally at one of
its meetings and issuing a 10-page statement offindings
_________________________________________________________________

1. The ordinance has since been amended to explicitly permit personal
wireless service facilities in selected ar eas of the Township.

                               3
and conclusions on a later date. With r egard to the use
variance request, the ZHB found that local zoning law
places a high burden on the applicant to demonstrate why
a variance is necessary and that Omnipoint had failed to do
so.2 With regar d to the validity challenge under state law,
the ZHB found that the ordinance had been interpreted "to
allow cellular/PCS facilities in certain appr opriate zoning
districts" within the Township and that, in fact, there were
"several cellular or PCS towers or sites operating within the
Township borders" and in contiguous ar eas (A. 30-31). As
a result, the ordinance could not be said to be
exclusionary. The ZHB also observed that the T ownship's
justification for the challenged ordinance--namely,
"preservation of the residential natur e of the AA residential
districts"--falls "within the traditional purposes of zoning
regulation, and enforcement of zoning r egulations is not
negated by the Telecommunications Act of 1996 or [by
Pennsylvania law]" (A. 26, 30). Finally, the ZHB rejected the
challenge under the TCA, concluding that the or dinance did
not effectively prohibit wireless service.

In the District Court, Omnipoint did not challenge the
ZHB's conclusion that it had failed to justify a use variance.3
It did, however, continue to argue that the ordinance was
unconstitutional because it was exclusionary. Omnipoint
further insisted that the ZHB's decision upholding the
validity of the zoning ordinance was violative of the TCA
because it was not supported by substantial evidence, 47
_________________________________________________________________

2. Under Pennsylvania law, one seeking a use variance must show that
the zoning restriction "inflicts unnecessary hardship on the applicant,"
and (1) that there are unique physical cir cumstances or conditions
peculiar to the property that create the hardship, (2) that because of
these circumstances or conditions, ther e is no possibility that the
property can be developed in conformity with the zoning ordinance, (3)
that the applicant did not create the unnecessary hardship, (4) that the
variance, if granted, would not alter the essential character of the area,
and (5) that the variance, if granted, would r epresent the least
modification possible to the regulation at issue. 53 P.S. S 10910.2.

3. It is undisputed that there are no"unique physical circumstances or
conditions peculiar to the property [such that] there is no possibility
[of]
the property [being] developed in confor mity with the zoning ordinance."
53 P.S. S 10910.2.

                                4
U.S.C. S 332(c)(7)(B)(iii), and because it had the effect of
prohibiting wireless service. 47 U.S.C.S 332(c)(7)(B)(i)(II).
Finally, Omnipoint sought damages and attorneys' fees
under the Civil Rights Act, 42 U.S.C. S 1983.

The District Court granted summary judgment in favor of
Omnipoint and ordered the ZHB to grant Omnipoint's
application. It found that the ZHB's decision was"based
solely on the negative aesthetic impact of the tower" and
"did not make any findings that the tower would affect the
health, safety, or general welfare of the T ownship in any
manner other than that of aesthetics." Omnipoint
Communications Enterprises, L.P. v. Zoning Hearing Board of
Easttown Township, 72 F. Supp. 2d 512, 516 (E.D. Pa.
2000). The Court further concluded as a matter of
Pennsylvania law that aesthetic concerns alone were "not
sufficient to uphold the validity of the or dinance." Id. Since
the Court found there was no evidence other than of
negative aesthetic impact to support the ordinance, it held
that the ZHB's decision violated the substantial evidence
requirement of the TCA.4

Having found the ordinance unconstitutional on this
ground, the District Court deemed it unnecessary to
address whether Omnipoint had shown the or dinance to be
impermissibly exclusionary under Pennsylvania law or
_________________________________________________________________

4. The Court also expressed the view that the "general concerns voiced
by the Township residents" would not constitute "substantial evidence"
under the TCA even if a restriction on land use could be supported by
aesthetic considerations alone under Pennsylvania law. However, as we
demonstrate in the text, infra, Slip. Op. at 6-7, the validity of the
ordinance under the Pennsylvania Constitution is not an issue that
turns on adjudicative facts that requir e substantial record support under
the TCA. The Township's zoning ordinance limiting the district to
residential uses and imposing a 35 foot height restriction represents a
legislative judgment about land use planning. If there are legislative
facts
that the decision makers could have viewed as supporting their
judgment, record evidence is not r equired under the TCA. See APT
Pittsburgh Ltd. v. Penn Township, Butler County, 196 F.3d 469, 475 (3d
Cir. 1999). As we also point out, infra , Slip Op. at 10-11, this is not a
case like Omnipoint Corp. v. Zoning Hearing Boar d of Pine Grove
Township, 181 F.3d 403 (3d Cir. 1999), where we were called upon to
review a zoning board's denial of an application for a special exception."

                               5
whether the ZHB's decision was in violation of subsection
332(c)(7)(B)(i)(II) of the TCA because it had the ef fect of
prohibiting wireless services. See id. at 516-17. With regard
to Omnipoint's civil rights claims based on the TCA
violation, the Court found that the TCA's remedial scheme
is "sufficiently comprehensive to infer Congressional intent
to foreclose a S 1983 remedy." Id. at 517 (quoting Omnipoint
v. Newtown Township, No. 98-5171, 1999 WL 269936, at
*7-10 (E.D. Pa. Apr. 29, 1999)). The Court also concluded
that Omnipoint's claim for section 1983 relief under a
substantive due process analysis failed because it found no
evidence of an improper motive and because the ZHB's
decision was neither arbitrary nor capricious. Id.

II.

Subsection 332(c)(7)(B)(iii) of the TCA requir es that "[a]ny
decision by a State or local government or instrumentality
thereof to deny a request to place, construct, or modify
personal wireless service facilities shall be in writing and
supported by substantial evidence contained in a written
record." Substantial evidence is a legal term of art. It "does
not mean a large or considerable amount of evidence, `but
rather such evidence as a reasonable mind might accept as
adequate to support a conclusion.' " Pier ce v. Underwood,
487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). A court r eviewing
under the substantial evidence standard "is not to weigh
the evidence contained in that record or substitute its own
conclusions for those of the fact finder," but rather is to
"determine whether there is substantial evidence in the
record as a whole to support the challenged decision."
AT&T Wireless v. Zoning Boar d of Adjustment of the Borough
of Ho-Ho-Kus, 197 F.3d 64, 71 (3d Cir . 1999).

The District Court in this case correctly observed that
"[s]ection 332(c)(7)(B)(iii) is not intended to supplant the
substantive standards to be applied under state or local
law." Easttown, 72 F. Supp. 2d at 515; see also Omnipoint
Communications Enterprises, L.P. v. Zoning Hearing Board of
Pine Grove Township, 181 F.3d 403, 408 (3d Cir. 1999); APT
Pittsburgh Ltd. v. Penn Township, Butler County, 196 F.3d
469, 475 (3d Cir. 1999). Accordingly, the first step for the

                               6
court in a case in which the provider of wir eless services is
relying on state or local law is to identify the relevant issues
under that law. If those issues requirefindings of
adjudicative fact, the local authority's resolution of those
factual issues must be supported by substantial evidence.
Otherwise, any conclusion based on those findings violates
subsection 332(c)(7)(B)(iii) and cannot stand.

Thus, as we pointed out in Penn Township :

       [i]t . . . seems apparent that subsection 332(c)(7)(B)(iii)
       is intended to provide procedural pr otections with
       respect to the determination of factual issues made by
       a state or local authority in the course of applying state
       and local zoning law. . . . By contrast, it also seems
       apparent that subsection 332(c)(7)(B)(iii) is not
       intended to apply to decisions that are not to be made
       solely on the basis of the factual recor d before the
       agency and that are not to be the subject of deferential
       substantial evidence review.

       . . .

       A decision on the "exclusivity" of a zoning or dinance
       under the Pennsylvania Constitution is a legal issue
       that is not subject to deferential judicial r eview. See
       Borough of Edgewood v. Lamanti's Pizzaria, 556 A.2d
       22 (Pa. Commw. Ct. 1989). While such decisions may
       involve some consideration of legislative facts, the
       evidence to be considered is not limited to the facts of
       the particular applicant's case and is not necessarily
       limited to the record compiled by the local authority.

Id. at 474-75.

As we have noted, Omnipoint did rely on state law before
the ZHB. It insisted that the ordinance barring it from
erecting its tower was invalid under the Pennsylvania
Constitution because it excluded wireless service towers.
The law applicable to this kind of claim is well settled.
Zoning ordinances in Pennsylvania enjoy a pr esumption of
constitutionality and validity, and the party challenging one
bears the "heavy burden" of proving otherwise. See Penn
Township, 196 F.3d at 475 (quoting Benham v. Board of
Supervisors of Middletown Township, 349 A.2d 484, 487

                               7
(Pa. Commw. Ct. 1975)); see also Schubach v. Silver, 336
A.2d 328, 335 (Pa. 1975); Beaver Gasoline Co. v. Zoning
Hearing Board of the Borough of Osbor ne, 285 A.2d 501,
503-04 (Pa. 1971) ("the validity of a zoning or dinance is
presumed and . . . the burden of establishing its invalidity
is upon the party who seeks to have it declar ed invalid").

In order to overcome this presumption of
constitutionality, the challenger must demonstrate that "the
ordinance totally excludes an otherwise legitimate use."
Ferrell v. Worchester Township Board of Supervisors, 481
A.2d 986, 989 (Pa. Commw. Ct. 1984). "Unless the
challenger demonstrates that the ordinance in question
completely or effectively excludes a legitimate use, . . . the
challenger has failed to carry its burden . . .." Ficco v.
Board of Supervisors of Hempfield Township, 677 A.2d 897,
899 (Pa. Commw. Ct. 1996) (citing BAC, Inc. v. Board of
Supervisors of Millcreek Township, 633 A.2d 144 (Pa.
1993)); Overstreet v. Zoning Hearing Boar d of Schuylkill
Township, 618 A.2d 1108 (Pa. Commw. Ct. 1992). To prove
total or effective exclusion of a permitted use, the
challenger can show that the ordinance is either de jure or
de facto exclusionary:

       De jure exclusion exists where an or dinance, on its
       face, totally bans a legitimate use. De facto exclusion
       exists where an ordinance permits a use on its face,
       but when applied acts to prohibit the use thr oughout
       the municipality.

Penn Township, 196 F.3d at 475 (internal quotations and
citations omitted).

If the challenger is able to establish that the or dinance
excludes the use in question, the burden then shifts to the
state or locality "to demonstrate that the zoning ordinance
`[b]ears a substantial relationship to public health, safety,
and welfare.' " Id. (quoting Borough of Edgewood v.
Lamanti's Pizzeria, 556 A.2d 22, 24 (Pa. Commw. Ct.
1989)); 53 P.S. S 10916.1(a)(5)(i)-(v); see also Fernley v.
Board of Supervisors of Schuylkill Township, 502 A.2d 585,
587 (Pa. 1985) ("Where the challenger pr oves a total
prohibition of a legitimate use, the bur den shifts to the
municipality to establish that the prohibition promotes

                               8
public health, safety, morals and general welfar e.") (citing
Beaver Gasoline, 285 A.2d at 503); Ellick v. Board of
Supervisors, 333 A.2d 239, 243-44 (Pa. Commw. Ct. 1975).

The District Court did not apply these state authorities.
As we have noted, it expressed no view with r egard to the
ZHB's conclusion that Omnipoint had failed to show that
the ordinance was exclusionary. Rather, it held that the
ordinance restricting the AA-residential district to
residential and related uses and to structures no higher
than 35 feet was unconstitutional because zoning"based
solely on aesthetic reasons [is] not a legitimate exercise of
a locality's power to protect the general welfare." Easttown,
72 F. Supp. 2d at 515.

We hold that the District Court's conclusion is contrary
to Pennsylvania law. Residential districts with 35 foot high
restrictions are, of course, a common feature of virtually all
municipal zoning ordinances. See 2 Anderson, American
Law of Zoning (4th ed. 1996) S 39.55 ("The most common
provisions limit buildings in single family r esidential
districts to . . . a height not in excess of 35 feet."). While
such reasonable height restrictions have been justified on
grounds other than aesthetics, see id., we are confident
that the Supreme Court of Pennsylvania would sustain
them as a reasonable means of maintaining the r esidential
character of the neighborhood. Pennsylvania courts have
repeatedly held that aesthetic considerations promote the
general welfare and thus are sufficient to justify the
exercise of a locality's police power to establish zoning
ordinances. See e.g. Appeal of Girsch, 263 A.2d 395, 399
(Pa. 1970) ("Certainly, [a municipality] may protect its
attractive character by requiring apartments to be built in
accordance with (reasonable) set-back, open space, height,
and other light-and-air requirements. . . ."); Best v. Zoning
Board of Adjustment of the City of Pittsbur gh, 141 A.2d 606,
612 (Pa. 1958) ("If the legislature has the power to compel
a property owner to submit to a forced sale for the
purposes of creating an attractive community, it has the
power to regulate his property for such objectives."); Board
of Supervisors of Thampton Township v. Gentsch , 414 A.2d
1102, 1105 (Pa. Commw. Ct. 1980) (stating that "a

                               9
municipality can protect its attractive character by
imposing reasonable height restrictions").5

In arriving at the conclusion that zoning decisions based
on aesthetics are not a legitimate exer cise of a locality's
police power, the District Court erroneously relied on cases
in which Pennsylvania courts have requir ed "extraordinary
justification" to overcome a presumption that restrictions
on residential lot sizes or other attempts to"establish
residential enclaves by excluding population gr owth"
constitute exclusionary zoning and are unduly r estrictive of
property rights. Surrick v. Zoning Boar d of Upper Providence
Township, 382 A.2d 105, 108 (Pa. 1978). See Kirk v. Zoning
Hearing Board of Honey Brook, 713 A.2d 1226, 1229 (Pa.
Commw. Ct. 1998); Berman v. Board of Commissioners,
Township of Lower Merion, 608 A.2d 585 (Pa. Commw. Ct.
1992). It is true that when such restrictions are at issue,
Pennsylvania courts have held that they "may not be
sustained solely on the basis of aesthetics alone." Berman,
608 A.2d at 590 (quoting National Land Investment Co. v.
Easttown Board of Adjustment, 215 A.2d 597, 610 n.29 (Pa.
1965)). But this is not the type of ordinance at issue here,
and thus the Court's reliance on these cases is misplaced.

The District Court also erroneously relied upon our
decision in Pine Grove, 181 F .3d 403, for the proposition
that the aesthetic concerns expressed in this case about
the proposed tower do not meet the evidentiary standard
required by the TCA. See 47 U.S.C.S 332(c)(7)(B)(iii). There,
we held that "a few generalized expressions of concern with
`aesthetics' cannot serve as substantial evidence" to support
the denial of a special exception. Id. at 409 (citing Cellular
Telephone Company v. Town of Oyster Bay , 166 F.3d 490,
_________________________________________________________________

5. We recognize that the issue we her e resolve is not a federal TCA
issue.
As we pointed out in Penn Township, state constitutional law issues of
this kind do not come within the scope of the "substantial evidence"
provision of subsection 332(c)(7)(B)(iii). This means that our
jurisdiction
to resolve it and that of the District Court emanates from 28 U.S.C.
S 1367(a) (conferring supplemental jurisdiction to entertain a state law
claim forming part of the same case or contr oversy). See Omnipoint v.
Warrington Township, 63 F. Supp. 2d 658 (E.D. Pa. 1999) (recognizing
that a federal court may have discretion in some circumstances to
decline to resolve a state claim raised in a similar context).

                               10
496 (2d Cir. 1999) (same showing not sufficient in the
denial of a special permit)); 53 P .S. S 10912.1 (governing
special exceptions). As we have stressed, a r eviewing court
in a case like this must first identify the issue framed by
the state or local law. Here the issue, at least as perceived
by the District Court, was whether the ordinance was
constitutionally inferior because it did not serve the public
health, safety, or welfare. Our decision in Pine Grove is
simply not helpful in resolving that issue. 6

The judgment of the District Court thus rests solely on
an error of law, and we must reverse.

III.

As we have explained, the District Court found it
unnecessary to rule on Omnipoint's claim that the
ordinance was impermissibly exclusionary under
Pennsylvania law or its claim that the ordinance had the
effect of prohibiting the provision of wireless services in
violation of the TCA. Moreover, the r ecord in this case was
developed without the benefit of our decision in Penn
Township which addressed similar challenges under the
Pennsylvania Constitution and the TCA and articulated the
legal principles that must control here. Under these
circumstances, we deem it prudent to remand this matter
to the District Court to give the parties an opportunity to
supplement the record and to secur e the informed
judgment of the District Court.

In Penn Township, as here, a wir eless service provider
claimed that the challenged ordinance was exclusionary
_________________________________________________________________

6. The District Court also cited White Advertising Metro. Inc. v. Zoning
Hearing Board of Susquehanna Township , 453 A.2d 29, 34-35 (Pa.
Commw. Ct. 1982) for the proposition that aesthetic considerations are
not enough to justify a zoning ordinance, but its reliance on that case is
misplaced as well. At issue in White was whether a local zoning authority
could deny a conditional use permit, on the basis of aesthetics alone, to
an applicant who otherwise had met the requir ed "standards and
criteria" for obtaining such a permit. In that situation, the court held
that it is not appropriate for a zoning authority to "grant or deny
permits
. . . solely by the discretionary exercise of its subjective aesthetic
judgment." Id. at 35.

                               11
because a tower in the area of the township in which
towers were permitted would not allow it adequately to fill
an alleged gap in its service in another portion of the
township. We there held:

       Pennsylvania's rule against exclusionary zoning does
       not impose upon a township the duty to assur e that all
       providers, regardless of the systems they have chosen
       to construct, will have a suitable site for a functioning
       tower within the township. To be exclusionary, the
       ordinance must effectively foreclose not only APT's use,
       but all use. Yet, APT provided no evidence to the ZHB
       that other providers could not use any of the 600 acres
       of M District land to build a tower that would
       functionally meet their systems' needs.

Penn Township, 196 F.3d at 477.

In this case, Omnipoint does not contest the ZHB's
finding that other service providers have existing towers
within the Township and in contiguous ar eas that provide
service within its borders. While there is some evidence
concerning the service of those providers, it is safe to say
that the record would be more fully developed had the
parties had the benefit of the teachings of Penn Township.

The same is true with respect to the TCA issue. In Penn
Township we established a two-prong test to determine if
the decision of a local zoning authority has "the effect of
prohibiting the provision of personal wir eless services." 47
U.S.C. S 332(c)(7)(B)(i)(II). It requir es that the service
provider first "show that its facility will fill an existing
significant gap in the ability of remote users to access the
national telephone network." Penn Township, 196 F.3d at
480. If this burden is met, the provider must still prove
"that the manner in which it proposes tofill the significant
gap in service is the least intrusive on the values that the
denial sought to serve." Id. A recor d developed with this test
in mind might well differ materially fr om the record
currently before us, particularly as it r elates to the second
prong of the test.

IV.

Omnipoint's remaining claims are based on the Civil
Rights Act. To the extent Omnipoint claims that the ZHB,

                                  12
acting under color of state law, violated its rights under the
TCA, the issues raised need not be addressed until such a
violation has been established. However, to the extent
Omnipoint claims that the ZHB, acting under color of state
law, violated its right to substantive due pr ocess, summary
judgment was properly entered against Omnipoint. The
summary judgment record reflects only a bona fide
disagreement concerning land use planning issues. It will
not support a conclusion that the ZHB has acted arbitrarily
or capriciously. See e.g. Pace Resources, Inc. v. Shewsbury
T.P., 808 F.2d 1023 (3d Cir. 1987).

V.

The judgment of the District Court will be r eversed and
this matter will be remanded to the District Court for
further proceedings consistent with this opinion.

A True Copy:
Teste:

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

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