                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2003

Do Little Corp v. Bristol
Precedential or Non-Precedential: Non-Precedential

Docket 02-2971




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Recommended Citation
"Do Little Corp v. Bristol" (2003). 2003 Decisions. Paper 620.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/620


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                                               NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                       No. 02-2971 & 02-3008
                            ___________

        DO LITTLE CORPORATION; JOSEPH W . DIEGIDIO, JR.,
      INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF
 DO LITTLE CORPORATION; JOSEPH W. DIEGIDIO, SR., INDIVIDUALLY
     AND IN HIS CAPACITY AS OWNER OF DIEGIDIO BUILDERS,

                            Appellants


                                v.

       TOWNSHIP OF BRISTOL a/k/a BRISTOL TOWNSHIP; TOWNSHIP
         OF BRISTOL COUNCIL a/k/a BRISTOL TOWNSHIP COUNCIL;
       FRANCIS CLARK; KATHRYN HILL; WILLIAM TUTHILL; MARY
 SOMMERER, INDIVIDUALLY AND IN THEIR RESPRECTIVE INDIVIDUAL
     CAPACITIES AS MEMBERS OF THE BRISTOL TOWNSHIP COUNCIL;
  JOHN ANNUNZIATA; SAM UEL FENTON, INDIVIDUALLY AND IN THEIR
   INDIVIDUAL OFFICIAL CAPACITIES AS MAYORS OF THE TOW NSHIP
      OF BRISTOL (a/k/a BRISTOL TOWNSHIP) AND AS MEMBERS AND
          PRESIDENTS OF THE TOWNSHIP OF BRISTOL COUNCIL
 (a/k/a BRISTOL TOWNSHIP); SUZANNE NEWSOME, INDIVIDUALLY AND
    IN HER CAPACITY AS MANAGING DIRECTOR OF THE TOWNSHIP OF
     BRISTOL (a/k/a BRISTOL TOWNSHIP); J.G. PARK ASSOCIATES, INC.;
NICK MORAN, INDIVIDUALLY, AS PRESIDENT OF J.G. PARK ASSOCIATES
      AND AS THE TOWNSHIP OF BRISTOL (a/k/a BRISTOL TOWNSHIP)
       ENGINEER; WILLIAM MAJOR ASSOCIATES; WILLIAM MAJOR,
  INDIVIDUALLY IN HIS CAPACITY AS PRESIDENT OF WILLIAM MAJOR
      ASSOCIATES, P.C. AND AS TOWNSHIP OF BRISTOL (a/k/a BRISTOL
TOWNSHIP) ENGINEER; THOMAS TIMBY, ESQUIRE; FRANCIS X. DILLION,
    INDIVIDUALLY; TIMBY & DILLON, P.C., AS TOWNSHIP OF BRISTOL
                   (a/k/a BRISTOL TOWNSHIP) SOLICITOR
                                       ___________

                     On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                               (Civil Action No. 01-cv-02344)
                     District Judge: The Honorable Harvey Bartle, III
                                        ___________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     April 11, 2003

      Before: ALITO and FUENTES, Circuit Judges and PISANO*, District Judge
                          (Opinion Filed: April 25, 2003)

                               _______________________

                               OPINION OF THE COURT
                              ________________________
FUENTES, Circuit Judge:

       Appellant Do Little Corporation appeals the District Court’s grant of summary

judgment in favor of appellees Township of Bristol, Township of Bristol Council, Francis

Clark, Kathryn Hill, William Tuthill, Mary Sommerer and Samuel Fenton on its 42 U.S.C.

§ 1983 claims. The issue on appeal is whether the District Court erred in concluding that Do

Little Corp.’s 42 U.S.C. § 1983 claims against Bristol Township, the members of the Bristol

Township Council and various other defendants are time barred by the statute of limitations.

Because we agree with the District Court that Do Little Corp.’s action was not timely filed,

we will affirm.

_____________________________

* The Honorable Joel A. Pisano, United States District Judge for the District of New Jersey,
sitting by designation. 1.

                                            -2-
                           I. Facts and Procedural Background

        The factual allegations underlying this case are well known to the parties, and

therefore, they are not detailed here, except to the extent that they directly bear upon the

analysis. As pertinent to this appeal, on May 11, 2001, Do Little Corp. brought suit under 42

U.S.C. § 1983 alleging that the Township’s decision to rebid a parcel of land known as

“Runway Road,” which the Township had previously voted to sell to Do Little Corp.,

violated its rights under the Fifth and Fourteenth Amendments. Defendants moved for

summary judgment on the basis that Do Little Corp.’s claims were barred by the applicable

two-year statute of limitations. Defendants asserted that any violations of § 1983 which

occurred before May 11, 1999 were time barred and that plaintiff failed to allege any

violation of its constitutional rights within the statutory period. Do Little Corp. asserted, in

response, that its action was timely by virtue of the discovery rule and the continuing

violations doctrine. The District Court concluded that plaintiff’s § 1983 claims were time

barred and granted summary judgment in favor of the defendants. Do Little Corp. timely

appealed.

                         II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331.              We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       The standard of review applicable to an order granting summary judgment is plenary.



                                              -3-
See Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). We apply the same test employed

by a District Court under Federal Rule of Civil Procedure 56(c). See Kelley v. TYK

Refractories Co., 860 F.2d 1188, 1192 (3d Cir. 1988). Accordingly, the District Court’s

grant of summary judgment in favor of the defendants was proper only if it appears that

“there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). In evaluating the evidence, we are

required “to view [the] inferences to be drawn from the underlying facts in the light most

favorable to the party opposing the motion.” Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir.

1999) (citation omitted).

                                       III. Discussion

       The District Court reasoned that, as of March 29, 1999, Do Little Corp. had

knowledge of its alleged injury or that such knowledge was then available to Do Little Corp.

through the exercise of reasonable diligence. The Court based this conclusion on a letter

dated March 29, 1999 through which Do Little Corp.’s attorney confirmed for Do Little

Corp. that the Township had decided at its March 16, 1999 public meeting to rebid the

Runway Road property and asked whether he should assert any rights Do Little Corp. had

as a result of the previous bid process. In his letter, Do Little Corp.’s attorney explained that

he could file an action seeking to enjoin the Township from rebidding the property. Do Little

Corp. elected not to submit a bid and did not attempt to enjoin the sale.

       The Court considered the notice advertising the rebidding which appeared in the



                                               -4-
Bucks County Courier Times on June 10, 14, and 17, 1999 and the acceptance of Decker and

Brennan’s bid in July of 1999 to “constitute the delayed, but inevitable, consequence”of the

Council’s vote to re-bid the Runway Road property at its March 16, 1999 public meeting.

Dist. Ct. Op., p. 10. The Court therefore rejected Do Little Corp.’s argument that its action

was timely filed because it was only in July 1999 that Do Little Corp. discovered that the

decision to rebid the property was based on improper motives and was conducted in an

irregular manner. The Court also rejected Do Little Corp.’s argument that its action was

timely under the continuing violations doctrine. The Court reasoned that continual ill effects

from an original violation did not constitute a continuing violation, and merely indicated that

the Township was following through on its vote to rebid the property. We discern no error

in the District Court’s analysis.

                                      IV. Conclusion

       After carefully reviewing the arguments of the parties and applicable law, we affirm

the District Court’s grant of summary judgment in favor of defendants for substantially the

reasons set forth in the District Court’s thorough and well-reasoned opinion.

_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.


                                                    By the Court,

                                                    /s/Julio M. Fuentes
                                                    Circuit Judge

                                              -5-
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