                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                         NOT PRECEDENTIAL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
