Southersby Dev. Corp. v. Borough of Jefferson Hills

852 F.Supp.2d 616

SOUTHERSBY DEVELOPMENT CORPORATION, Plaintiff,

v.BOROUGH OF JEFFERSON HILLS; William L. McVicker, in his individual and official capacity, Defendants.

Civil Action No. 09–208.

United States District Court, W.D. Pennsylvania.

Feb. 14, 2012.

Paul R. Robinson, Meyer, Darragh, Buckler, Bebenek & Eck, Edward G. Brandenstein, Meyer, Darragh, Buckler, Bebenek & Eck, PLLC, Pittsburgh, PA, Carmee G. Murphy, Sewickley, PA, for Plaintiff.

Philip J. Sbrolla, Carolyn Batz McGee, Mark R. Hamilton, Cipriani & Werner, P.C., Jeffrey D. Truitt, Suzanne B. Merrick, Pittsburgh, PA, for Defendants.

OPINION

KELLY, United States Magistrate Judge.

Plaintiff, Southersby Development Corporation (“Southersby”), a real estate developer, filed this action against the Borough of Jefferson Hills (“the Borough”) and William L. McVicker (“McVicker”) (collectively “Defendants”), a former Borough employee, pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging that Defendants violated its right to equal protection under the Fourteenth Amendment and its right to free speech under the First Amendment relative to the development of a residential property known as Patriot Pointe. Pending before the Court is a Motion for Summary Judgment submitted by Defendant McVicker and a Motion for Partial Summary Judgment submitted by the Borough. ECF Nos. 96, 101. For the reasons that follow, both Motions will be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Southersby purchased property within the Borough in order to develop a residential community known as Patriot Pointe—Phases I, II and ILL ECF No. 60, ¶¶ 6, 7. In the spring of 2009, when the time came to proceed with Phase III of the project, the working relationship between Southersby and the Borough began to deteriorate. In particular, tension arose when the Borough delayed in returning the Phase III Developer's Agreement (“the Agreement”). Although Southersby requested a draft of the Agreement from the Borough on May 21, 2009, it did not receive it until June 27, 2009. Id. at ¶¶ 10–11. Southersby, however, objected to what it has described as “unreasonable and unlawful” provisions in the Agreement, including the Borough requiring Southersby to waive its right to a jury trial. Id. at ¶ 11. The Borough subsequently agreed to remove the offending provisions, but did not execute the Agreement until August 24, 2009. Id. at ¶ 12. The delay in executing the Agreement, coupled with the Borough's denial of Southersby's application for preliminary approval of Phase III–B, prevented Southersby from proceeding with the project to its financial detriment. Id. at ¶¶ 14–15.

Southersby also contends that the Defendants have selectively applied Borough ordinances and road specifications; imposed unreasonably stringent inspection and testing specifications; and imposed fees not required of other developers. It also claims unfair and arbitrary treatment by Defendants in connection with an access road, a sign permit, and a grouting plan. Id. at ¶¶ 22, 23, 28. Defendant McVicker, individually, is alleged to have interfered with homebuilders' permits and to have lodged frivolous complaints with the Allegheny County Conservation District (“ACCD”). Id. at ¶ 23. As well, Southersby alleges that McVicker and “other agents of Jefferson Hills” had personal or business relationships with other land developers and Borough residents who opposed or stood to benefit from blocking Phase in development. Id. at 25. Through these relationships, Defendants are said to have engaged in corruption and self-dealing. Id. at 26.

Southersby initiated this action on September 12, 2008, by filing a Praecipe for Writ of Summons in the Court of Common Pleas of Allegheny County, Pennsylvania. Southersby filed its Complaint on January 22, 2009, and on February 19, 2010, Defendants removed the case to this Court pursuant to 28 U.S.C. § 1446. In response to a Motion to Dismiss filed by Defendants, in which they sought dismissal of Southersby's substantive due process claim brought at Count II of the Complaint, Southersby filed an Amended Complaint on August 20, 2009. Finding that Southersby had failed to cure the deficiencies as to that claim, the Court granted Defendants' renewed Motion to Dismiss in an Order dated April 20, 2010, 2010 WL 1576465. ECF No. 32. Southersby subsequently filed a Second Amended Complaint on February 11, 2011, in which it brings claims against the Borough and McVicker under the equal protection clause of the Fourteenth Amendment (Count I); claims against the Borough for retaliation and restraint of speech under the First Amendment (Counts II and III, respectively); and a claim for Breach of Contract against the Borough (Count IV). ECF No. 60. Defendants filed Answers to the Second Amended Complaint on February 24, 2011. ECF Nos. 62, 63.

On October 3, 2011, following the resolution of an elongated discovery dispute, Defendant McVicker filed a Motion for Summary Judgment, ECF No. 96, and the Borough filed a Partial Motion for Summary Judgment. ECF No. 101. These motions are now ripe for review.

II. STANDARD OF REVIEW

Summary judgment is warranted only where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See Conoshenti v. Public Service Electric & Gas Company, 364 F.3d 135, 140 (3d Cir.2004). When the moving party has met this burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). The mere existence of some evidence favoring the non-moving party, however, will not defeat the motion. There must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See McGreevy v. Stroup, 413 F.3d 359, 363–64 (3d Cir.2005). In evaluating the evidence at the summary judgment stage, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Matreale v. New Jersey Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir.2007).

III. DISCUSSIONA. The Borough's Motion for Partial Summary Judgment

1. Statute of Limitations

The Borough initially argues that it is entitled to summary judgment in its favor on “several” of Southersby's equal protection claims because they are barred by the applicable statute of limitations. Noting that Southersby has identified sixteen instances of alleged “unequal and discriminatory treatment” in the Second Amended Complaint, the Borough argues that, to the extent the violations identified in paragraphs 23 a, b, c, d, e, h, i and j, are premised on conduct that occurred prior to September 12, 2006, they are untimely.

It is well established that the statute of limitations for Section 1983 claims is governed by the applicable state's statute of limitations for personal-injury claims. Gilarno v. The Borough of Freedom, 2010 WL 3522112 at *4 (W.D.Pa. Sept. 8, 2010). See Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Pennsylvania, a personal injury claim must be filed within two years. 42 Pa.C.S. § 5524(2) (2004). Thus, Southersby's Section 1983 claims are subject to a two year statute of limitations. Gilarno, 2010 WL 3522112 at *4.

Although the applicable statute of limitations period is governed by state law, federal law dictates when a Section 1983 cause of action accrues. Wallace, 549 U.S. at 388, 127 S.Ct. 1091. Generally, a cause of action accrues and the statute of limitations begins to run “when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (1998). That is, “a Section 1983 claim accrues at the time when the injury is sustained” or “ ‘when the plaintiff has a complete and present cause of action.’ ” Koehnke v. City of McKeesport, 350 Fed.Appx. 720, 723 (3d Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 2404, 176 L.Ed.2d 924 (2010), quoting Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (internal quotations and citations omitted). Moreover, “ ‘[t]he cause of action accrues even though the full extent of the injury is not then known or predictable.’ ” Wallace, 549 U.S. at 391, 127 S.Ct. 1091, quoting 1C. Corman, Limitations of Actions § 7.4.1, at 526–27 (1991).

As previously discussed, Southersby initiated this action in the Court of Common Pleas of Allegheny County, Pennsylvania on September 12, 2008. Thus, any claims that accrued prior to September 11, 2006, including many of the claims raised in paragraphs 23 a, b, c, d, e, h, i and j of the Second Amended Complaint, are barred by the two year statute of limitations.

a. The Discovery Rule

Southersby does not dispute that the Section 1983 claims set forth in paragraphs 23 a, b, c, d, e, h, i and j of the Second Amended Complaint accrued prior to September of 2006, but nevertheless argues that the running of the limitations period should be tolled under the discovery rule. See William A. Graham Co. v. Haughey, 646 F.3d 138, 150 (3d Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 456, 181 L.Ed.2d 295 (2011) (“we do not think the discovery rule should be read to alter the date on which a cause of action accrues .... the discovery rule must instead ... operate to toll the running of the limitations period after a cause of action has accrued ...”). Under the discovery rule, “ ‘where the existence of the injury is not known to the...