                                                        NOT PRECEDENTIAL


                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ____________

                                No. 10-3284
                               ____________


               ROBERT A. LEWICKI; JOSEPH A. LEWICKI,
                                   Appellants

                                     v.

WASHINGTON COUNTY, PENNSYLVANIA; WASHINGTON COUNTY TAX
     CLAIM BUREAU; TREASURER OF WASHINGTON COUNTY;
     P.S. HYSONG; THE COMMONWEALTH OF PENNSYLVANIA
                         ___________

               On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                       (D.C. Civil No. 2-10-cv-00547)
                District Judge: Honorable Arthur J. Schwab
                                ___________

                 Submitted Under Third Circuit LAR 34.1(a)
                              May 12, 2011

     Before:   SMITH, CHAGARES, and VANASKIE, Circuit Judges

                           (Filed: June 21, 2011)
                                ___________

                        OPINION OF THE COURT
                             ___________
VANASKIE, Circuit Judge.

        This is an appeal from a July 8, 2010, decision by the United States District Court

for the Western District of Pennsylvania denying Appellants’ Motion for

Reconsideration. Appellants sought reconsideration of the District Court’s June 1, 2010,

dismissal of their case on statute of limitations grounds. Although the District Court

erred in denying the motion for reconsideration because it improperly computed the

deadline for filing such a motion, we will nonetheless affirm the District Court’s

judgment because this action is clearly barred by the statute of limitations.

                                              I.

        As we write only for the parties, who are familiar with the facts and procedural

history of the case, we will set forth only those facts necessary to our analysis.

Appellants, Robert A. Lewicki (“Robert”) and Joseph W. Lewicki, Jr. (“Joseph”), are two

brothers who owned property in Washington County, Pennsylvania, which came to them

from their parents. The property became subject to numerous bills for back taxes, and, in

July 2000, Washington County sent notices of a tax sale by certified mail to the Lewickis

at the address of the property. Robert Lewicki signed the notice on behalf of both

brothers. Because the taxes were not paid, the property was posted, the sale was

advertised in three local newspapers, and the property was sold to P. S. Hysong on

September 19, 2000. Although a post-sale notice, requesting filing of any objections,

was mailed to the Lewickis at the property address, the Lewickis took no action to

redeem the property. The property was conveyed by deed to Hysong on January 29,

2001.

                                              2
       When Hysong filed an action to quiet title in March of 2001, Appellants responded

that they were unaware of the tax sale until March 11, 2001, when the recordation of the

deed was published. They asserted that the premises had not been properly posted and

that they did not receive notice of the sale or their right to object, arguing that Robert was

of diminished mental capacity and that notice should have been mailed to Joseph’s

residence.

       The Washington County Court of Common Pleas found the tax sale valid. The

court found that the property had been subject to back taxes beginning in 1993, and that

Joseph made partial payments over the years to prevent it from going into a tax sale. In

March, 2000, the Tax Bureau sent “courtesy letters” to both brothers reminding them to

pay their 1999 taxes. At around the same time, Joseph visited the Tax Bureau to pay

taxes on other properties, and was orally informed that the subject property was

scheduled to be sold for unpaid taxes on September 19, 2000. Joseph then went home

and discussed the matter with his brother, and Robert assured Joseph that he would pay

the taxes. The court found that the notices were properly sent to the property address,

that the property was properly posted, that Robert understood the consequences of failing

to pay the taxes, that the brothers deliberately refused to accept personal service at home,

and that Joseph, in fact, had actual notice of the sale because of his encounter at the Tax

Bureau.

       Appellants then appealed to the Commonwealth Court, but their appeal was

quashed for failure to preserve any issues for appellate review by not filing post-trial

motions. The Commonwealth Court denied their application for rehearing en banc, and

                                              3
the Pennsylvania Supreme Court denied their petition for allowance of appeal on

December 28, 2007.

         In April, 2010, Appellants filed an action in the U.S. District Court for the

Western District of Pennsylvania, alleging that the tax sale violated their constitutional

rights and was actionable under 42 U.S.C. § 1983. After issuing an Order to Show Cause

Why Complaint Should Not Be Dismissed, to which Appellants timely responded, the

District Court dismissed the action on June 1, 2010, finding that Appellants’ claim was

time-barred. Appellants filed a “Motion for Reconsideration Pursuant to F.R.C.P. 59 and

60” on June 28, 2010. The District Court found that Appellants’ motion exceeded the

ten-day window for the filing of such motions under Fed. R. Civ. P. 59(e), and treated it

as a Rule 60 motion. The District Court further concluded that Appellants’ motion did

not warrant relief under Rule 60. This appeal followed.

                                               II.

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

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s dismissal of a complaint. Atkinson v. Lafayette Coll., 460 F.3d 447, 451 (3d Cir.

2006).

         Appellants first argue that the District Court erred because it incorrectly computed

the timeline for the filing of their Rule 59(e) motion for reconsideration. We agree. Rule

59 of the Federal Rules of Civil Procedure, as amended, provides that motions for a new

trial or to alter or amend a judgment must be filed “no later than 28 days after the entry of



                                               4
judgment.” Fed. R. Civ. P. 59(b), (e). The District Court applied the ten-day period of

limitation which was in effect before December 1, 2009, and this was error.

       The error was harmless, however, because, as the District Court correctly noted,

the action was clearly barred by the statute of limitations. Claims brought pursuant to 42

U.S.C. § 1983 are governed by the general or residual statute of limitations for personal

injury actions applicable in the state where the complained-of conduct occurred. Owens

v. Okure, 488 U.S. 235, 250 (1989). Accordingly, we apply Pennsylvania’s general

statute of limitations for personal injury, which is two years. 42 Pa. Cons. Stat. § 5524.

See McGovern v. City of Phila., 554 F.3d 114, 115 n.2 (3d Cir. 2009) (noting that § 1983

claims in Pennsylvania are governed by two-year statute of limitations); Sameric Corp. of

Del., Inc. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) (finding same).

       Pennsylvania recognizes the “discovery rule,” which provides that “where the

existence of the injury is not known to the complaining party and such knowledge cannot

reasonably be ascertained within the prescribed statutory period, the limitations period

does not begin to run until the discovery of the injury is reasonably possible.” Baselice v.

Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270, 276 (Pa. Super. Ct.

2005), appeal denied, 891 A.2d 729 (Pa. 2005). Here, Appellants admit that they

discovered that their property was sold in “late March or early April 2001 when they

were served with a copy of the Quiet Title Action.” (Appellants’ Br. at 19.)




                                             5
Accordingly, the statute of limitations on their § 1983 claim expired no later than late

March or early April of 2003. 1

       Appellants argue that the statute of limitations should not be applied in this case

because newly discovered, fraudulently concealed evidence exists which should toll the

running of the statute. Equitable tolling of the statute of limitations is appropriate when a

plaintiff has been induced “to relax vigilance or deviate from the right of inquiry” by

reason of the defendant’s fraud or concealment of material facts. See Urland v. Merrell-

Dow Pharms., Inc., 822 F.2d 1268, 1271 (3d Cir. 1987); Wood v. Carpenter, 101 U.S.

135, 143 (1879); Bailey v. Glover, 88 U.S. (21 Wall.) 342 (1874).

       Appellants argue that tolling is appropriate in light of the discovery of two

material pieces of evidence. The first piece of evidence is a certified mailing from the

Washington County Tax Claim Bureau to Appellants at the property address, which was

returned on June 18, 2000, after two unsuccessful attempts to deliver it had been made. 2

Appellants claim that this evidence demonstrates that, as early as June 2000, Appellees

were aware that Joseph was not living on the farm property and therefore had an

affirmative duty to notify him by other means. The second piece of evidence is a Notice

of Proposed Termination of a Condemnation Proceeding, which was mailed to Appellants

at their respective home addresses on December 7, 2009. They argue that this

1
  Appellants assert, without citation to any controlling authority, that their action should
be governed by the Pennsylvania six-year statute of limitations set forth in 42 Pa. Cons.
Stat. § 5527. Even if that were the case, this action would still be untimely by
approximately three years.
2
  Robert discovered this letter on the floor of the courtroom during a hearing in February,
2006, and, allegedly because of his diminished mental capacity, placed it in his pocket.
He did not reveal its existence until August, 2009.
                                              6
Condemnation Proceeding was completely unknown to them but, upon research, they

discovered that it had been initiated as early as 1993 and that a docket search revealed

that Washington County was aware of their respective home addresses as of that date.

       Contrary to the Lewickis’ assertion, this evidence does not support an inference

that Appellees engaged in any “trick or contrivance,” Wood, 101 U.S. at 143, to mislead

Appellants. “Concealment by mere silence is not enough.” Id. These pieces of

evidence, moreover, do not change the fact that Joseph received actual notice of the tax

sale as early as March, 2000. Accordingly, we find that it would be inappropriate to toll

the running of the statute of limitations in this case.

       Moreover, the arguments advanced by Appellants in their Motion for

Reconsideration are unavailing. Appellants sought reconsideration of the District Court’s

dismissal of their complaint, arguing that the Order dismissing the complaint was void.

They stated four reasons why the judgment was void: (1) because they were denied their

right to due process when they were denied notice of the tax sale, (2) because Appellees

concealed crucial evidence, (3) because notice of the tax sale was constitutionally

defective, and (4) because the Pennsylvania tax redemption system is constitutionally

defective. The first three arguments fail in light of the Common Pleas Court’s ruling,

which found that “there is no dispute that the Defendants knew of the tax sale, understood

its consequences, mailed notice was received by at least one of the two property owners,

and the notice was properly published, this constitutes actual notice of the tax sale, and




                                               7
this notice validates the tax sale to the [Appellants]. 3 (A. 168-177.) Appellants’ fourth

argument, that Pennsylvania’s tax redemption scheme is unconstitutional, does not

support a finding that the District Court’s judgment dismissing the case on statute of

limitations grounds is somehow “void.” To hold otherwise would be to acknowledge that

the effect of the statute of limitations is nullified whenever any constitutional attack, no

matter how untimely, is brought. This is clearly not so. See, e.g., Torres v. McLaughlin,

163 F.3d 169, 173 (3d Cir. 1998) (finding claims challenging the constitutionality of an

arrest barred by statute of limitations); Smith v. City of Pittsburgh, 764 F.2d 188, 195 (3d

Cir. 1985) (discussing statute of limitations for claim of unconstitutional termination of

employment). Accordingly, we do not find that the District Court’s Order is void.

Reconsideration on this ground was therefore inappropriate.

       “We may affirm the District Court on any ground supported by the record.”

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Although the District Court

erroneously denied Appellants’ motion for reconsideration based on an improper

calculation of the relevant filing period, after a careful review, we find that Appellants

did not present any ground on which to grant the motion. Furthermore, we agree with the

District Court that this action is barred by the statute of limitations. 4


3
  Appellants cite to United States v. One Toshiba Color Television, 213 F.3d 147 (3d Cir.
2000), where we held that when notice of a forfeiture proceeding is constitutionally
inadequate, the doctrine of laches cannot be used to bar an action for recovery. Here,
however, there was actual notice, rendering One Toshiba Color Television
distinguishable on its facts.
4
  Thus, we need not consider the merits of Appellants’ claims that the Pennsylvania tax
redemption laws are unconstitutional, nor whether res judicata and collateral estoppel act
to bar Appellants’ claims because they were previously litigated in state court.
                                                8
                                    III.

For the foregoing reasons, we will affirm the judgment of the District Court.




                                     9
