                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2002

Theodorou v. Measel
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3466




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"Theodorou v. Measel" (2002). 2002 Decisions. Paper 769.
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                                                                         NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                       __________

                                           No. 01-3466
                                           __________

                                    GEORGE THEODOROU

                                                   v.

                          GALE E. MEASEL, JR.; JOHN DICOLA, JR.;
                           DANIEL J. VOGLER; PHILLIP CARLO;
                               NESHANNOCK TOWNSHIP

                                       Neshannock Township,
                                                     Appellant
                                          __________

                ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                                 D.C. Civil No. 00-cv-00046
                     District Judge: The Honorable Donetta W. Ambrose
                                        __________

                            Submitted Under Third Circuit LAR 34.1(a)
                                       November 20, 2002
                                         __________

           Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN,* District Judge

                               (Opinion Filed: November 25, 2002)




   *
   The Honorable Harold A. Ackerman, United States District Judge for the District of
New Jersey, sitting by designation.
                                             ____________

                                               OPINION
                                             ____________


BARRY, Circuit Judge

        George Theodorou sued appellant Neshannock Township and several of its officials

acting in their official capacity under 42 U.S.C. § 1983, alleging a deprivation of property

without due process and an unlawful taking without just compensation in violation of the

Fifth and Fourteenth Amendments, and a continuing trespass under Pennsylvania law.

Following trial, the jury found in Theodorou’s favor and awarded him $100,000. The

Township brought this timely appeal, arguing only that Theodorou’s federal claims were not

ripe.1 We have jurisdiction under 28 U.S.C. § 1291 and will affirm.

                                                    I.

        Because we write only for the parties, we will presume a familiarity with the record

and mention only those aspects of the factual and procedural history that are necessary to

reach a decision.

        Theodorou alleged in his complaint, and testified at trial, that the Township entered

his land on July 7, 1989 and, over the course of three days, replaced a deteriorating




   1
     Under Federal Rule of Appellate Procedure 28(a)(3) and (5) and Third Circuit Local
Appellate Rule 28.1(a), “appellants are required to set forth the issues raised on appeal and
to present an argument in support of those issues in their opening brief.” Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). In its opening brief, the Township challenges
only the ripeness of Theodorou’s taking and procedural due process claims.

                                                    2
underground drainage pipe with a larger pipe and covered it up with a manhole cover. He

also alleged, and presented evidence, that the Township acted in furtherance of the private

property interests of his neighbors, one of whom was the Township Secretary and all of

whom were relatives of the Chairman of the Board of Supervisors of the Township, Gale

Measel. As noted above, he claimed that the Township’s actions violated his property rights

under the Fifth and Fourteenth Amendments and constituted a continuing trespass on his

property under Pennsylvania law.

        The Township moved for a directed verdict at the close of its case at trial, arguing

for the first time that, based on the Township Code and ordinances, the Township had the

right to enter on Theodorou’s property to remedy actions he had taken, thus offsetting any

possible Constitutional deprivation. The District Court denied the motion, albeit indicating

uncertainty as to the belatedly raised issue, leaving it to the jury to decide whether there

was a Constitutional violation. Parenthetically, even at that point in the trial everyone,

including the Court, remained confused as to what the cause of action was. As the Court

had observed at the very outset of trial, in what was clearly an understatement, “You all sure

didn’t do a real good job of setting this out for me.”

        The following morning, immediately prior to the District Court instructing the jury,

the word “jurisdiction” was first mentioned by the Township when it argued, again for the

first time, that there was no constitutional violation because Theodorou had adequate post-

deprivation remedies against the Township and because nothing was “taken” from him but,

rather, a benefit had been provided him. The Court observed that “You picked a fine time to

                                                      3
tell me” of this possible jurisdictional problem, and decided to finish the trial and sort it

out later after research and reflection if the verdict made it necessary to do so.

        The jury returned a verdict in Theodorou’s favor as to both his federal and state

claims and awarded him $20,000 for property damage and $80,000 for emotional distress,

embarrassment, humiliation and impairment of reputation. The Township moved for

judgment as a matter of law on numerous grounds, including, as relevant here, that

Theodorou had not pursued the state post-deprivation remedies that were available to him

under Pennsylvania’s Eminent Domain Code. The District Court denied the Township’s

motion in a one-line order, and the Township appealed, raising, as we noted, only the issue

of ripeness.

                                                      II.

        We exercise plenary review over a ripeness challenge. Sameric Corp. v. City of

Philadelphia, 142 F.3d 582, 597 (3d Cir. 1998). Ripeness is directly relevant to whether a

district court has subject matter jurisdiction and is an independent predicate for judicial

review. 15 JAMES WM. MOORE ET AL ., MOORE’S FEDERAL PRACTICE, § 101.70[1], [2] (3d

ed. 2002). Since ripeness is a prerequisite to federal suit, a plaintiff who brings a federal

takings claim must allege facts showing that the claim is ripe. See FED. R. CIV. P. 8(a)(1).

        Theodorou alleged that the Township violated his constitutional rights by taking and

depriving him of his property in the purely private interests of Township decision-makers.

The jury rendered a general verdict that the Township violated Theodorou’s rights under the

Fifth Amendment. Although neither the parties nor the District Court were careful to parse

                                                       4
the separate Fifth Amendments claims at issue, the Fifth Amendment forbids at least two

distinct assaults on private property rights: deprivations of property without due process,

and takings of property without just compensation. A taking, in turn, may be either for

public use, which is forbidden unless just compensation is paid, or for private use, which is

unlawful regardless of the compensation paid.

        The Supreme Court has yet to decide whether a claim that the state used a public

purpose as a front to hide its true private purpose in infringing private property rights is

properly brought as a takings claim or a substantive due process claim. 2 See Coniston

Corp. v. Village of Hoffman Estates, 844 F.2d 461, 464 (7th Cir. 1988) (discussing

objections to moving “private use” takings cases to substantive due process clause). We,

however, have generally treated claims that a state actor was motivated by an improper

private purpose under the “substantive due process” heading. See, e.g., Woodwind Estates,

Ltd. v. Gretkowski, 205 F.3d 118, 124 (3d Cir. 2000) (observing that in order to establish

substantive due process violation under § 1983, plaintiff must show that government’s

actions were “arbitrary, irrational, or tainted by improper motive”); Parkway Garage, Inc. v.

The City of Philadelphia, 5 F.3d 685 (3d Cir. 1993) (noting that whether “the government’s

actions in a particular case were in fact motivated by bias, bad faith or improper motive... is


   2
      In order to show that the Township’s action served a private rather than a public use,
Theodorou had to show that its action was not “rationally related to a conceivable public
purpose.” See National R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 422
(1992); Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984). Because almost any
public action can be justified as rational, successful claims of a taking for private use are
rare.

                                                      5
a question of fact for the jury to decide”).

        Theodorou specifically argued to the jury, and argues to us on appeal, that the

Township interfered with his property for a wholly private, non-public purpose. He has

expressly and consistently rejected the position that the Township took his property for a

“public use.” Therefore, we will consider only the Township’s ripeness challenge to

Theodorou’s private use takings claim and due process claim.

        In the takings context, ripeness has two components: a final decision by the state

actor and denial of just compensation through all available state procedures. Williamson

County Reg’l Planning Comm’n v. Hamilton Bank , 473 U.S. 172, 193-97. A physical

taking is by definition a final decision for the purpose of satisfying Williamson’s first

requirement. See McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir. 1997). The

second requirement ordinarily requires a plaintiff to seek compensation from the state

before proceeding to federal court if adequate state procedures are available.3 See

Williamson County, 473 U.S. at 195.

        State takings of private property for private use are not permitted, however, with or

without just compensation. See Montgomery v. Carter County, 226 F.3d 758, 770 (6th Cir.

2000); Samaad v. City of Dallas, 940 F.2d 925, 936-37 (5th Cir. 1991); but see Forseth v.


   3    The Pennsylvania Eminent Domain Code, 26 P.S. § 1-101 et seq., provides that a
condemnee is entitled to just compensation for the taking, injury or destruction of his
property. 26 P.S. § 1-601. It further provides for a procedure in state court by which a
property owner may pursue this remedy. Id. § 1-502. Therefore, Theodorou may well have
been able to obtain relief under Pennsylvania law for any damage to his property resulting
from the Township’s actions.

                                                       6
Village of Sussex, 199 F.3d 363, 369-70 (7th Cir. 2000). Therefore, Theodorou need not

seek compensation for an alleged physical taking for private use through a state procedure

in order to ripen this claim. Therefore, assuming such a “private purpose” claim can

properly be brought under the takings clause, this claim is ripe.

        The District Court also instructed the jury to consider whether the Township

violated Theodorou’s right not to be deprived of his property without due process. Since

the deprivation of private property without due process is likewise a constitutional violation

even if compensation is paid, these claims are also ripe.4

                                                    III.

        For the reasons set forth above, Theodorou’s § 1983 claim alleging a deprivation of

his property without due process and a taking of his property without just compensation in

violation of the Fifth Amendment is ripe. No other issues having been raised on appeal, the

District Court’s order of August 7, 2001, which order denied the Township’s post-trial

motion, will be affirmed.




TO THE CLERK OF THE COURT:

        Kindly file the foregoing Opinion.




   4
     We will not speculate as to the success of a Fourteenth Amendment equal protection
claim based on interference with private property, see Village of Willowbrook v. Olech,
528 U.S. 562 (2000), since Theodorou never articulated such a theory of liability and the
District Court treated his § 1983 claim as proceeding via only the Fifth Amendment takings
and due process clauses.

                                                     7
/s/ Maryanne Trump Barry
Circuit Judge
