Herr v. Pequea Township

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

12-11-2001

Herr v. Pequea Twp

Precedential or Non-Precedential:

Docket 00-2473

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http://digitalcommons.law.villanova.edu/thirdcircuit_2001/287

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Filed December 11, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-2473

E. MARVIN HERR, INDIVIDUALLY AND T/A MILLWOOD

PARK ASSOCIATES

v.

PEQUEA TOWNSHIP; VIRGINIA K. BRADY, INDIVIDUALLY

AND IN HER OFFICIAL CAPACITY; BRUCE G. GROFF,

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;

MARTIN P. HUGHES, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY

E. Marvin Herr, Appellant

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 99-cv-00199)

District Judge: Honorable Franklin S. VanAntwerpen

Argued May 14, 2001

BEFORE: SCIRICA, GARTH and STAPLETON,

Circuit Judges

(Opinion Filed: December 11, 2001)

Edward M. Posner (Argued)

Jeffrey P. Wallack

Drinker, Biddle & Reath

18th and Cherry Streets

One Logan Square

Philadelphia, PA 19103

Attorneys for Appellant

Kevin J. O'Brien (Argued)

Marks, O'Neil, O'Brien & Courtney

1880 JFK Boulevard, Suite 1200

Philadelphia, PA 19103

Attorney for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

E. Marvin Herr, a land developer, appeals the grant of

summary judgment to Pequea Township ("Township") and

its three supervisors, Virginia Brady, Bruce Groff, and

Martin Hughes (collectively, "defendants"), in this civil

rights action. Herr alleges that his right to substantive due

process was violated by an eleven year campaign of the

Township and its officers to delay and obstruct his

development of an industrial park.

The defendants adopted a land use plan and a sewer

facilities plan based in part on their view that industrial

development within the Township should be restricted.

Over the next eleven years, Herr, who wished to construct

an industrial park and who had applied to the Lancaster

County Planning Commission ("LCPC") for approval of a

subdivision plan prior to the effective date of these plans,

sought the necessary authorization for his development

from the LCPC, the Department of Environmental Review

("DER"), the Environmental Hearing Board ("EHB"), the

Zoning Hearing Board ("ZHB"), and the courts. The

Township participated in the proceedings before each of

these bodies. While it acknowledged that Herr's project was

grandfathered under the prior land use plan if he

completed it within five years, the Township insisted that

he had no vested right to municipal sewer services under

the prior sewer facilities plan and argued that the

Township's new plan should be enforced. After Herr

secured an order from the DER directing the Township to

amend its sewer facilities plan so as to provide municipal

sewer service to his property and obtained a land use

permit from the LCPC, the Township took the position in

further proceedings that not all conditions of the LCPC's

2

approval had been fulfilled and that the five year

grandfathering had expired before completion of the project.

Ultimately, Herr secured the necessary authority to go

forward with his industrial park.

Herr claims that the defendants' conduct with respect to

his proposed development was motivated throughout by a

strong desire to preserve agricultural land and restrain

development in the Township. In support of this claim, he

has tendered evidence tending to show that the individual

defendants had run for office on "anti-development"

platforms and that their adoption of a new zoning

ordinance and sewer facilities plan was intended to make it

more difficult for developers to secure approvals of their

projects. Herr stresses, for example, that the new zoning

ordinance reduced the land zoned industrial by 68 percent.

While Herr points to the defendants' adoption of the new

zoning ordinance and sewer plan as evidence of their"anti-

development bias," we do not understand him to contend

that the defendants' actions with respect to those plans

violated his right to substantive due process. Decisions on

whether to adopt or amend zoning ordinances and

municipal services plans are legislative ones that must

survive due process review unless "the governmental body

could have had no legitimate reason for its decisions." Pace

Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023,

1034 (3d Cir. 1987). The desire to limit development is such

a legitimate reason. Id.

Rather, Herr claims that the defendants conspired to

prevent him from securing the necessary approvals from

other government agencies, or to delay the receipt of those

approvals until his project would no longer be

grandfathered under the prior ordinance. In support of this

contention, he submitted what he regards as a "smoking

gun" letter from Dr. Alan Peterson, the Chairman of the

Pequea Township Environmental Advisory Council, to the

Township's legal counsel dated February 19, 1994. That

letter states in part:

Only Virginia Brady and I in the township know the

following: (Do not state this back to the township in

any manner). The owner must sell the lots, then all

3

land development plans must be approved by 10/94 or

they become nonconforming lots in the Ag. District.

Obviously the longer we can stall (if we can't win this

with the [Department of Environmental Review]), the

better.

App. at 374-75.

According to Herr, the defendants' conspiracy consisted

of (1) resisting before the LCPC, the DER, the Board, and

the courts Herr's efforts to secure the right to proceed; (2)

instructing its own personnel to carefully scrutinize Herr's

proposal in order to identify any possible problems; and (3)

communicating with the LCPC, the DER, the State Fish

Commission, the State Game Commission, and other

governmental agencies voicing various concerns about the

proposed project.

Herr relies on a line of our cases which hold that a

township or other agency acting under color of state law

denies a landowner substantive due process if it denies or

delays action on his permit application for reasons

unrelated to the merits of the application. See Woodwind

Estates, Ltd. v. Gretkowski, 205 F.3d 118, 124-25 (3d Cir.

2000) (holding that delay of permitting process because of

community resistance to proposed low income housing

project provided jury with a basis from which it could

reasonably find that decision maker acted in bad faith or

due to an improper motive violating developer's substantive

due process rights); DeBlasio v. Zoning Bd. of Adjustment,

53 F.3d 592, 601-02 (3d Cir. 1995) (holding that denial of

permit based on decision maker's personal financial

interest, if proven, establishes a violation of the right to be

free from arbitrary and capricious government action);

Blanche Rd. Corp. v. Bensalem Township, 57 F.3d 253,

267-68 (3d Cir. 1995) (holding that conspiracy to delay

permits for industrial park for political reasons unrelated to

the merits of an application is sufficient to establish a

substantive due process violation); Parkway Garage, Inc. v.

City of Philadelphia, 5 F.3d 685, 696-97 (3d Cir. 1993)

(holding that the jury could reasonably infer improper

motive when lease was allegedly terminated based upon

decision maker's economic interest); Bello v. Walker, 840

F.2d 1124, 1129-30 (3d Cir. 1988) (holding that a

4

municipal corporation's denial of a building permit for

partisan political or personal reasons unrelated to the

merits of the case, if proven, establishes a substantive due

process violation). Herr correctly points out that, while the

ultimate issue before the LCPC and the other governmental

bodies was whether to permit a new industrial park,

resolution of that issue properly turned on whether his

development met the criteria established by law. The

defendants' opposition, according to Herr, was motivated by

a determination to stop his development without regard to

whether it met those criteria.

Unlike the defendants in the cases cited by Herr,

however, the Township and its supervisors were not

authorized to issue permits for Herr's industrial park. The

LCPC alone had that authority. Herr's claim is thus not

that the defendants subverted a decision making process

by taking irrelevant considerations into account. It is rather

that the defendants contested issues before the bodies

authorized to resolve various permitting issues because

they wished to defeat or delay the approval of Herr's project

by those bodies. This claim is materially different from the

claims asserted in Bello and its progeny.

We conclude that there is evidence from which a trier of

fact could conclude that the Township's challenged conduct

was motivated by a desire to stop Herr's development. At

the same time, we conclude that there is no evidence from

which a trier of fact could conclude that the Township took

frivolous positions or otherwise unreasonably delayed the

proceedings before the various state bodies. We hold that

where a township participates in proceedings before other

governmental agencies authorized to resolve issues like

those here presented, the township and its supervisors are

not subject to liability for delay occasioned by those

proceedings solely because their participation was

motivated by a desire to delay or prevent the project for

which approval is sought.1

_________________________________________________________________

1. The dissent correctly notes that the Township and its supervisors have

asked us to affirm the judgment of the District Court on the ground that

the evidence presents no material dispute of fact as to whether they had

an improper motive. If Bello and its progeny were the controlling

5

I.

Herr sought to develop approximately 45 acres of land

that he owns in Pequea Township, Lancaster County,

Pennsylvania. By October 9, 1989, he learned of a proposed

land use plan under which the zoning of his land would be

changed so as to permit only agricultural use. On

December 5, 1989, Herr submitted to the LCPC a

subdivision plan to construct an industrial park on this

property ("Millwood Industrial Park" or "Millwood"). At the

time he submitted this plan, his property was zoned

industrial, and the existing sewage facilities plan ("the 1971

sewage facilities plan") was a county-wide plan providing

public sewers pursuant to the Pennsylvania Sewage

Facilities Act ("Act 537"). The LCPC considered and rejected

the industrial park plan twice, and Herr resubmitted it

twice. Ultimately, the LCPC granted preliminary conditional

approval on October 9, 1990, and preliminary

unconditional approval on February 25, 1991.

After Herr's subdivision plan was filed but several

months before the LCPC approvals, Pequea Township, on

August 22, 1990, adopted a new Township map to conform

with Lancaster County's comprehensive plan. On the new

map, the land where Herr's proposed industrial park was to

be situated was rezoned from industrial to agricultural.

Under Pennsylvania law, Herr was allowed five years from

the date of the preliminary approval to complete his non-

conforming development.2 Following adoption of the new

zoning, the Township began to revise its sewage facilities

_________________________________________________________________

authority here and motive were the legally relevant issue, we would find

ourselves hard pressed to uphold the District Court's judgment.

However, "when the judgment of a district court is [legally] correct, it

may be affirmed for reasons not given by the Court and not advanced to

it." Video International Production, Inc. v. Warner-Amex Cable

Communications, Inc., 858 F.2d 1075, 1085 (5th Cir. 1988) (quoting Laird

v. Shell Oil Co., 770 F.2d 508, 511 (5th Cir. 1985)); Elliott Coal Mining

Co.

v. Director, 17 F.3d 616, 628 n. 16 (3d Cir. 1994).

2. Under Pennsylvania law, once a development proposal is submitted,

the zoning regulations in place are not subject to change (with respect to

that proposal) for five years after the preliminary proposal is approved.

See 53 Pa. C.S.A. S 10508(4)(i).

6

plan to comport with its new land planning scheme. On

June 3, 1992, the Township repealed prior sewage plans

and adopted a new sewage plan. The new plan provided for

the extension of public sewers into areas of the Township

designated for development but not into areas designated

for agricultural use. Accordingly, the permitted sewage

disposal for the area in which Millwood was situated was

changed from public sewers to on-lot disposal systems. As

required, the Township submitted its sewage facilities plan

to the DER for approval under Act 537.

On July 30, 1992, Herr requested that the Township

amend its sewage facilities plan so as to provide for

municipal sewer service to Millwood. A little over a month

later, on September 2, 1992, that request was denied.3 Herr

then filed a "private request" with the DER under 35 Pa.

Cons. Stat. Ann. S 750.5 seeking an order requiring the

Township to amend its sewage plan as it had been

requested to do.4 At the time of Herr's private request, the

_________________________________________________________________

3. Section 71.53 of the DER regulations, as then in effect, provided:

(f) A municipality may refuse to adopt a proposed revision to

their

official plan for new land development for reasons, including, but

not limited to:

(1) The plan is not technically or administratively able to be

implemented.

(2) Present and future sewage disposal needs of the area,

remaining acreage or delineated lots are not adequately addressed.

(3) The plan is not consistent with municipal land use plans and

ordinances, subdivision ordinances or other ordinances or plans for

controlling land use or development.

(4) The plan is not consistent with the comprehensive sewage

program of the municipality as contained in the official plan.

(5) The plan does not meet the consistency requirements of

S 71.21(a)(5)(i)-(iii).

25 Pa. Code S 71.53(f) (1989).

4. Section 750.5(b), as then in effect, provided:

Any person who is a resident or property owner in a municipality

may request the department to order the municipality to revise its

7

Department was still reviewing the plan that the Township

had submitted.

On September 28, 1993, the LCPC gave conditional final

approval to a final plan for Millwood that had been

submitted on August 3, 1992 ("the August 1992 plan"). The

approval was conditioned on Herr's satisfaction of over forty

conditions including his securing approval for his proposed

sewage disposal. On February 8, 1994, the DER granted

Herr's private request and issued an order directing the

Township to revise its 1992 sewage plan.

Several years of litigation ensued. On March 25, 1994,

the EHB reversed the decision of the DER. In response to

this decision, the DER denied Herr's private request on

April 4, 1994. Then Herr appealed, first to the EHB and

next to the Commonwealth Court. On May 31, 1996, the

Commonwealth Court reversed the EHB's decision, found in

favor of Herr, and remanded the case for further

proceedings. On remand, the EHB ultimately granted

summary judgment on the sewage disposal issue. The

Township and the DER both filed a petition for

reconsideration with the Board, which denied the petition,

and then a petition for review with the Commonwealth

Court, which, on July 10, 1998, affirmed the Board's

decision. Pequea Township v. Herr, 716 A.2d 678, 681 (Pa.

Commonw. Ct. 1998).

Throughout the "sewer litigation," the Township

maintained that the law specifying the sewer requirements

applicable to the Millwood site was the 1992 sewer plan. In

support of this view, it took the position that (1) the 1992

plan became effective without DER approval on October 20,

_________________________________________________________________

official plan where said person can show that the official plan is

inadequate to meet the resident's or property owner's sewage

disposal needs. Such request may only be made after a prior

demand upon and refusal by the municipality to so revise its

official

plan. The request to the department shall contain a description of

the area of the municipality in question and an enumeration of all

reasons advanced by said person to show the official plan's

inadequacy. Such person shall give notice to the municipality of

the

request to the department.

8

1992, pursuant to 25 Pa. Code S 71.32(c) (1989),5 and the

DER accordingly lacked authority for its original order; and

(2) the statute grandfathering for five years developments

pending approval at the time of a zoning change did not

apply to sewer plans and, accordingly, Herr had no vested

right to public sewer service. The Board agreed with the

Township that the 1992 plan became effective on October

20, 1992. The Commonwealth Court did not reach the

merits of that issue but did agree with the Township that

the grandfathering provision for zoning ordinances did not

give Herr a right to public sewer services under the 1971

plan. Pequea Township v. Herr, 716 A.2d 678, 684 (Pa.

Commonw. Ct. 1998). The Court nevertheless decided in

Herr's favor on the ground that, even if a landowner's

proposal is inconsistent with the applicable municipal

sewer plan, the DER is authorized to require its adoption

upon a showing that the provisions of the municipal plan

are "inadequate" to meet the needs of the landowner. The

Commonwealth Court wrote at some length on each of the

six contentions raised by the DER and the Township.

On November 29, 1998, once all the sewage issues were

settled, the LCPC determined that Herr met all of the

remaining conditions for approval and permitted

recordation of the final land development plan. The

Township then appealed this decision to the Court of

Common Pleas, arguing (1) that Herr failed to meet three of

the other conditions imposed by the LCPC when it

conditionally approved the August 1992 plan; and (2) that

Herr's vested rights to application of the pre-existing zoning

ordinance had expired because five years had elapsed since

the approval of his preliminary development plan and no

valid extension had been granted by the LCPC.

Meanwhile, after recordation, Herr began construction of

_________________________________________________________________

5. This section provides:

Upon the Department's failure to act on a complete official plan or

revision within 120 days of its submission, the official plan or

official plan revision will be considered approved, unless the

Department informs the municipality prior to the end of 120 days

that additional time is necessary to complete its review. The

additional time may not exceed 60 days.

9

his industrial park. During construction, Herr erected a

sign advertising the sale of lots and began excavation. A

Township zoning officer issued Herr an enforcement notice

because he believed that Herr had violated the Township's

1992 zoning ordinance for excavation without a zoning

permit and advertising the sale of the premises without a

zoning permit. Herr appealed the enforcement notice to the

Zoning Hearing Board ("ZHB"), arguing that the Township's

1980 zoning ordinance applied rather than the 1992 zoning

ordinance. The ZHB held that, even if Herr's substantive

rights were determined by the earlier zoning ordinance, he

must comply with the procedural requirements of the new

ordinance, including its permit requirements. Herr appealed

to the Court of Common Pleas.

The appeals to the Court of Common Pleas were

consolidated. On December 29, 1999, the Court decided in

favor of Herr and against the Township. With regard to the

issues raised by the Township, the Court held that the

LCPC did not abuse its discretion in granting Herr an

extension and allowing recordation of his plan. With regard

to the issue raised by Herr, the Court found that the 1992

zoning ordinance requiring a permit for excavation and

advertising was inapplicable because it was substantive

rather than procedural in nature and thus adversely and

improperly affected Herr's substantive rights. The Township

appealed the Court of Common Pleas decision to the

Commonwealth Court, which affirmed on January 10,

2001.

II.

We agree with the District Court that Herr had a property

interest in Millwood which was entitled to protection under

"the substantive due process element of the Fourteenth

Amendment." Herr v. Pequea Township, No. 99-cv-199, at

17 (E.D. Pa. filed July 31, 2000). See Blanche Road, 57

F.3d at 268 n.15; DeBlasio, 53 F.3d at 601. We thus turn

to the issue of whether Herr was deprived of that property

interest in violation of substantive due process.

III.

With possible exceptions hereafter addressed in section

IV, the injuries for which Herr seeks redress arise from the

10

delay occasioned by the proceedings before the LCPC, the

DER, the EHB, the ZHB and the courts of Pennsylvania.

When recovery is sought against a participant in

adjudicatory proceedings before state agencies and state

courts based on its participation in those proceedings,

fundamental interests are implicated that were not

implicated in the situations before us in Bello and its

progeny. Both the Constitution and the common law

provide protection for those who petition the government.

"[T]he [First Amendment] right to petition extends to all

departments of government" including administrative

agencies and the courts. California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508, 510 (1972). It is made

applicable to the states by the Fourteenth Amendment.

Hague v. Committee for Indus. Org., 307 U.S. 496 (1939).

The protection it affords thus applies both to petitioning

state agencies and to petitioning state courts. Moreover,

this protection extends not only to petitioning for

affirmative relief but also to petitioning in opposition to

applications for relief by others. Armstrong Surgical Center,

Inc. v. Armstrong County Mem. Hosp., 185 F.3d 154 (3d Cir.

1999) (holding that the First Amendment right to petition

provides protection for opposition to a competitor's

application to the State Department of Health for a

Certificate of Necessity for a medical facility).

While the right to petition conferred by the First and

Fourteenth Amendments does not provide an absolute

immunity from liability for actions based on petitioning

activity, see California Motor Transport, 404 U.S. at 513-14,

the Supreme Court has held that such liability cannot be

imposed in the absence of a finding that the position taken

lacked any reasonable basis. In Professional Real Estate

Investors, Inc. v. Columbia Pictures Indus., Inc. , 508 U.S. 49

(1993), Columbia Pictures sued Professional Real Estate

Investors ("PRE") for copyright infringement. PRE filed a

counterclaim under the Sherman Act and various state

laws charging that the copyright infringement suit was a

part of a conspiracy to monopolize and restrain trade.

When Columbia Pictures moved for summary judgment

based on its constitutionally protected right to petition, PRE

argued that the copyright suit had been instituted in bad

11

faith, i.e., it was brought to restrain trade and without an

"honest . . . beli[ef] that the infringement claim was

meritorious." Id. at 54. The Supreme Court acknowledged

that petitioning immunity did not extend to liability based

on the institution or maintenance of "sham" litigation but

held that litigation could be regarded as a "sham" only if it

is "objectively baseless."

We now outline a two-part definition of "sham"

litigation. First, the lawsuit must be objectively

baseless in the sense that no reasonable litigant could

realistically expect success on the merits. If an

objective litigant could conclude that the suit is

reasonably calculated to elicit a favorable outcome, the

suit is immunized . . . , and an antitrust claim

premised on the sham exception must fail. Only if

challenged litigation is objectively meritless may a

court examine the litigant's subjective motivation.

Under this second part of our definition of sham, the

court should focus on whether the baseless lawsuit

conceals "an attempt to interfere directly with the

business relationships of a competitor," through the

"use [of] the governmental process-- as opposed to the

outcome of that process -- as an anticompetitive

weapon," Omni, 499 U.S., at 380 (emphasis in original).

Professional Real Estate Investors, 508 U.S. at 60-61

(citations omitted).

The petitioning immunity that the Court upheld in PRE

was immunity from antitrust liability. The Court pointed

out, however, that the principles being relied upon were not

limited to antitrust liability and noted that the same

principles had been applied by it to liability under the

National Labor Relations Act. See Bell Johnson's

Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (holding

that for a civil suit to be enjoined, there must be both an

improper motive on the part of the plaintiff and a lack of a

reasonable basis for the suit). Moreover, the Supreme Court

in PRE stressed that its holding was consistent with the

protection traditionally afforded petitioning activity under

the common law:

[T]he Court of Appeals correctly held that sham

litigation must constitute the pursuit of claims so

12

baseless that no reasonable litigant could realistically

expect to secure favorable relief.

The existence of probable cause to institute legal

proceedings precludes a finding that an antitrust

defendant has engaged in sham litigation. The notion

of probable cause, as understood and applied in the

common-law tort of wrongful civil proceedings, requires

the plaintiff to prove that the defendant lacked

probable cause to institute an unsuccessful civil

lawsuit and that the defendant pressed the action for

an improper, malicious purpose. Probable cause to

institute civil proceedings requires no more than a

"reasonabl[e] belie[f] that there is a chance that [a]

claim may be held valid upon adjudication." Because

the absence of probable cause is an essential element

of the tort, the existence of probable cause is an

absolute defense. Just as evidence of anticompetitive

intent cannot affect the objective prong of [the] sham

exception, a showing of malice alone will neither entitle

the wrongful civil proceedings plaintiff to prevail nor

permit the factfinder to infer the absence of probable

cause.

Professional Real Estate Investors, 408 U.S. at 62-63

(footnote and citations omitted).

The law applied in PRE is generally referred to in the case

law as the Noerr-Pennington doctrine.6 Since PRE, the

courts of appeals have frequently held that the restrictions

on liability there recognized are applicable to liability under

state tort laws, e.g., State of Missouri v. National

Organization of Women, 620 F.2d 1301, 1318-19 (8th Cir.

1980), and to liability under the Civil Rights Act, e.g.,

Video Intern Productions, Inc. v. Warner-Amex Cable

Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988)

(". . . we hold that any behavior by a private party that is

protected from anti-trust liability by the Noerr-Pennington

doctrine is also outside to scope of S 1983 liability");

Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614-15

_________________________________________________________________

6. From the seminal cases of Eastern Railroad Presidents Conference v.

Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers

v. Pennington, 381 U.S. 657 (1965).

13

(8th Cir. 1980) (same); Stern v. United States Gypsum, Inc.,

547 F.2d 1329, 1342-46 (7th Cir. 1977).

We reached a similar conclusion in Brownsville Golden

Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 159-60 (3d

Cir. 1988). There, two private individuals and a public

official were charged with having conspired to mount a

campaign to get the Commonwealth of Pennsylvania to

revoke the license of the plaintiff nursing home. This

conspiracy was alleged to have violated state tort law. In

support of its case, the plaintiff submitted a "smoking gun"

letter written by a member of the official's staff arguably

reflecting an agreement to work together to secure

termination of the license. We made the following

observations that are instructive here:

In a somewhat analogous situation, it has been held

that persons who were successful in persuading the

Forest Service to reduce or abandon its timber sales

program to protect the wilderness quality of an area

could not be liable under state tort law for interference

with an advantageous relationship. Sierra Club v. Butz,

349 F. Supp. 934 (N.D. Cal. 1972). Judge Zirpoli based

the decision on the First Amendment right to seek to

influence government action.

Two lines of cases support the Sierra Club decision

and that which we uphold here: the defamation cases,

e.g., New York Times v. Sullivan, 376 U.S. 254, 84 S.

Ct. 710, 11 L.Ed. 2d 686 (1964), emphasizing the

constitutional importance of communication on

matters of public interest; and the Noerr-Pennington

cases teaching that the collusive use by competitors of

legislative, administrative or judicial process does not,

without more, give rise to an anti-trust violation, see,

e.g., Eastern R.R. Conference v. Noerr Motor Freight,

365 U.S. 127, 81 S. Ct. 523, L.Ed. 2d 464 (1961);

California Motor Transport Co. v. Trucking Unlimited ,

404 U.S. 508, 93 S. Ct. 609, 30 L.Ed 2d 642 (1972).

The rule that liability cannot be imposed for damage

caused by inducing legislative, administrative, or

judicial action is applicable here. The conduct on

which this suit is based is protected by the firmly

14

rooted principle, endemic to a democratic government,

that enactment of and adherence to law is the

responsibility of all.

Brownsville, 839 F.2d at 159-60 (footnote omitted).

Also helpful is our decision in McArdle v. Tronetti, 961

F.2d 1083 (3d Cir. 1992). There, a state employee, a prison

counselor, allegedly prosecuted in bad faith a civil

proceeding to have the plaintiff involuntarily committed to

a mental health treatment facility. The plaintiff instituted

his suit under the Civil Rights Act, 42 U.S.C. S 1983,

claiming a violation of his right to substantive due process.

We held that this claim was analogous to "a common law

tort of malicious use of civil process by a state actor" and

that "claims of malicious prosecution brought under

Section 1983 `must include the elements of the common

law tort as it has developed.' " Id. at 1088 (quoting Rose v.

Bartle, 871 F.2d 331, 349 (3d Cir. 1989)). We cited to

section 674 of the Restatement (Second) of Torts as

evidencing those elements. That section provides:

One who takes an active part in the initiation,

continuation or procurement of civil proceedings

against another is subject to liability to the other for

wrongful civil proceedings if

(a) he acts without probable cause, and primarily for

a purpose other than that of securing the proper

adjudication of the claim in which the proceedings are

based, and

(b) except when they are ex parte, the proceedings

have terminated in favor of the person against whom

they are brought.

"In determining probable cause for initiation of civil

proceedings, all that is necessary is that the claimant

reasonably believe that there is a sound chance that his

claim may be held legally valid upon adjudication."

Restatement (Second) of Torts, S 675, cmt. (e) (1976).7

_________________________________________________________________

7. Contrary to the suggestion of the dissent, we do not read Albright v.

Oliver, 510 U.S. 266 (1994), a case dealing with an alleged malicious

prosecution that implicated the Fourth Amendment, as overruling

15

Herr's S 1983 claim against the defendants in this case is

analogous to the common law tort of malicious use of civil

process by a state actor. Accordingly, liability cannot be

imposed under the teaching of McArdle unless all elements

of the common law tort are satisfied. This includes the

requirement that the defendants resisted Herr's efforts to

secure approval "without probable cause and primarily for

a purpose other than securing the proper adjudication" of

Herr's claim. Nor, of course, can liability be imposed in a

manner inconsistent with the Constitution.

As Justice Souter points out in his concurring opinion in

PRE, there may be a conceptual difference between the

Constitutional "probable cause" requirement as articulated

in PRE and the term "probable cause" as employed by the

Restatement and the common law. PRE, 508 U.S. at 66-67

(Souter, J., concurring). PRE's "probable cause" is wholly

objective -- liability may be imposed only if"no reasonable

litigant could realistically expect to secure favorable relief."

PRE, 508 U.S. at 62. The common law's "probable cause"

may have a subjective component -- the defendant must

"reasonably believe that there is a sound chance that his

claim may be held legally valid." Restatement (Second) of

Torts S 675, cmt. (e). In most situations, this will be a

distinction without a difference. If a person has undertaken

to participate in civil proceedings and the circumstances

are such that he could have a reasonable expectation that

he may succeed, it will be the rare case indeed in which he

does not actually have that expectation. In any event, we

need not determine in this case whether there are cases in

which the distinction would make a difference. It does not

here.

The record in this case will not support a conclusion that

the defendants' resistance to Herr's application was

frivolous in the sense that no reasonable litigant could

_________________________________________________________________

McArdle, a case dealing with an alleged malicious use of civil process

that did not implicate the Fourth Amendment. Also, contrary to the

suggestion of the dissent, we believe McArdle stands for the proposition

that the principles we endorsed in Brownsville are applicable to an

alleged constitutional tort based on substantive due process.

16

realistically expect to prevail. Nor will it support an

inference that the defendants had no belief that they had a

"sound chance" of prevailing. As the District Court pointed

out, they took no appeal from the LCPC's original

conditional approval in 1992 and thus did not contest that

Herr was entitled for five years to the benefits of the prior

zoning ordinance. Moreover, their basic position in the

sewer litigation that Herr had no vested rights to municipal

sewer services under the 1971 sewage facilities plan was

ultimately sustained by the Commonwealth Court. Thus,

what Herr characterizes as a bad faith "end run" around

the grandfathering provision of the zoning law was, in

reality, a winning argument. Even Herr's "smoking gun"

letter, to the extent it can be taken as reflecting the

defendants' views, evidences that the Township expected

that it might well prevail before the DER and that the

possibility of the five year period expiring was regarded as

only an additional, incidental benefit of the defendants'

resistance before the state agency and the courts.

While Herr characterizes the defendants' resistance in

conclusory terms as frivolous, he has not identified any

specific issue and articulated why it was not a litigable one.

Our search of the record has not identified such an issue,

and we find no suggestion in the opinions of the decision-

making agencies that any of them regarded the Township's

positions as frivolous. Both the 1998 opinion of the

Commonwealth Court in the sewer litigation and the 1999

opinion of the Court of Common Pleas in the ensuing

litigation analyze the issues presented with care and some

detail. If either court had viewed one or more of those

issues as frivolous, we are confident that some evidence of

that view would have found its way into the opinions.8

_________________________________________________________________

8. We fail to perceive any similarity between this case and Grant v. City

of Pittsburgh, 98 F.3d 116 (3d Cir. 1996). There we were asked to decide

"whether, in applying Harlow's objective test for qualified immunity, a

Court may `consider' evidence of a defendant's state of mind when

motivation is an essential element of the civil rights claim." Id. at 123.

Our answer was in the affirmative. That answer is not helpful here,

however. Because the positions taken by the Township have not been

shown to be "objectively baseless" or asserted without "probable cause,"

the motive behind taking those positions is not legally relevant to the

propriety of the summary judgment entered against Herr.

17

IV.

To the extent the rule of decision here is grounded in the

common law, it makes no difference whether we are

analyzing the liability of the Township or the liability of the

supervisors in their individual capacities. The elements of

Herr's claim would be the same in either event, and if Herr

has not come forward with evidence that satisfies each

essential element of the analogous state tort, summary

judgment is appropriate. To the extent the rule of decision

here is an immunity rooted in the First Amendment, the

analysis of the Township's liability involves an additional

issue. It is clear that public officials sued in their individual

capacity are entitled to the immunity provided under the

Noerr-Pennington doctrine. See Brownsville Golden Age

Nursing Home, 839 F.2d at 159-60. We have found no case

addressing the issue of whether a municipal corporation is

entitled to such immunity.9 We predict, however, that the

Supreme Court would hold that it is.

In situations of this kind, a township and its supervisors

represent their constituents and facilitate their

participation in the governmental process. Indeed, if

municipal governments are discouraged from utilizing

municipal funds to finance participation in proceedings

before other governmental agencies, their citizens are likely

to be left without a voice in important matters pending

before those agencies. Moreover, municipal governments

are among those most likely to be in possession of

information relevant to the kinds of decisions that had to

_________________________________________________________________

9. The dissent cites one case, Video International Production, Inc. v.

Warner-Amex Cable Communications, Inc., 858 F.2d 1073 (5th Cir. 1988),

as standing for the proposition that petitioning immunity cannot apply

to a public entity. In that case, however, the plaintiff did not seek to

impose liability on the defendant city based on petitioning activity. The

complaint was based on the city's own zoning enforcement decisions

and, as the Court noted, "it is impossible for the government to petition

itself." Id. at 1086. Video International did not involve a situation,

like the

one before us, in which the plaintiff seeks to impose liability on a

municipality for petitioning a distinct public entity authorized by state

law to resolve land planning issues. Video International would be of help

here only if Herr were suing a public entity which had denied it a permit

for reasons unrelated to the merits of the permit application.

18

be made here and are among those most likely to be aware

of the decision makers' need for information. A rule which

would discourage municipalities from expressing concerns

and taking a position before other governmental agencies

would "deprive the government of a valuable source of

information." Noerr, 365 U.S. at 139. Granting petitioning

immunity to townships would thus serve the purposes of

the right to petition clause. While the Supreme Court has

held that townships are not entitled to the across-the-

board, common law, qualified immunity enjoyed by public

officials who exercise discretionary functions, Owen v. City

of Independence, 445 U.S. 622, 649-50 (1980), the rationale

of that decision is inapposite here. Petitioning immunity is

a limited immunity based on a specific provision of the

Constitution itself and extending it to townships would not

only be consistent with, but would further, the purposes of

the right to petition clause.

We therefore hold that neither the Township nor its

supervisors may be held liable based on the delays

occasioned by the proceedings before the LCPC and other

public bodies in the absence of a showing, not made upon

this record, that they lacked "probable cause" for the

positions they took.

V.

In addition to the claims predicated on the delays

occasioned by the proceedings before the LCPC and other

public bodies, Herr's brief makes the following allegations:

As in Blanche Road, there is substantial evidence

that defendants tried to delay or stop Mr. Herr's

development through "extra scrutiny" of Mr. Herr's

plans -- both improper reviews and never-ending

searches for "problems" with or additional conditions

for the plans. Additional "problems" or conditions, the

Township supposed, might cause the LCPC to

disapprove the project or Mr. Herr to abandon it. For

example, there is evidence that defendants caused the

Township zoning officer to give special attention to

reviews of plans for Millwood Industrial Park. Similarly,

there is evidence that the Township conducted

19

numerous, time-consuming reviews to find "every

possible violation" in Mr. Herr's plans (Blanche Road,

57 F.3d at 260) and, thereafter, reported all such

reviews to the LCPC in the hope that the LCPC would

disapprove the plans.

Finally, there is evidence of the Township's and the

Supervisors' efforts to foster unfounded opposition to

Millwood Industrial Park from public agencies and

private parties alike. The Township repeatedly sent out

letters attempting to "engender any concerns" or

otherwise "get Mr. Herr on something else" (Blanche

Road, 57 F.3d at 258) as a means to "slow down and

shut down" (Id. at 260) the project.

Appellant's Br. at 31-32.

While these charges are cast in a somewhat different

form and are obviously intended to bring these aspects of

Herr's case within the teachings of Blanche Road , we

conclude that they, too, are barred by the protection

afforded for petitioning activity. To the extent these claims

are based on communications to the LCPC and other

responsible state agencies, a straightforward application of

the principles already discussed leads to the conclusion

that there can be no S 1983 liability. Calling concerns about

a proposed development to the attention of the responsible

state agencies lies at the core of privileged activity, and this

is true without regard to the number of concerns expressed

so long as there is some rational basis for those concerns.

In making these charges, Herr has identified no problem

communicated to a state agency that has been shown to

have no rational basis.

In Blanche Road, we held that the defendants might have

exposed themselves to S 1983 liability "by ordering that

Blanche Road's applications be reviewed with greater

scrutiny in order to slow down the development." 57 F.3d

at 269. We so held, however, in the context of a situation

in which the defendants comprised the permitting authority

and their alleged conduct "improperly interfered with the

process by which the township issued permits . . . for

reasons unrelated to the merits of the application for

permits." Blanche Road, 57 F.3d at 267-68.

20

Here, the charge is that the defendants instructed

Township employees to apply "extra scrutiny" in their

review of Herr's proposal in order to identify problems

relevant to Herr's application before the LCPC and other

state agencies. We conclude that this essential precursor to

the Township's actual communications with the state

agencies also comes within the law's protection for

petitioning activity and that this is true regardless of how

thorough the employees were instructed to be in identifying

problems with the jurisdiction of the petitioned agencies.

VI.

The judgment of the District Court will be affirmed.

21

GARTH, Circuit Judge, dissenting:

I must dissent from the majority's opinion, because I

would hold that there exists a genuine issue of material fact

as to whether Pequea Township's actions violated Herr's

substantive due process rights and, therefore, I would

remand for trial. I part company from the majority, which

holds that the 1st Amendment right to petition permits the

Township to use litigation and the judicial process in order

to prevent Herr from developing his property. For the

following reasons, in my opinion, the majority has erred:

1. Many of the actions taken by Pequea Township,

which deliberately delayed and obstructed Herr in the

development of his property, were actions which arose from

other than Court proceedings and the judicial process, and

thus may not be considered within the rubric of the

Township's right to petition under the 1st Amendment. In

short -- Herr's evidence in support of this substantive due

process claim is not simply limited to the Township's

litigious behavior.

2. Pequea itself has rejected any claim or theory

dependent upon the right to petition. In short -- Pequea

has declined to rely on any such theory even after it was

encouraged to do so.

3. Even if a right to petition were relevant in this case

(as the majority believes it to be), it cannot defeat or

overcome an individual's substantive due process right

where the Township of Pequea has engaged in arbitrary and

capricious developmental conduct. In short -- the improper

motives of the Township cannot be immunized by resorting

to a right to petition theory and the majority has cited

to no authority which would support such aberrant

jurisprudence.

a. In an effort to bolster its conclusion that Herr's

action is barred by Pequea Township's right to petition

-- a theory to which not even Pequea itself has

subscribed -- the majority claims that the Noerr-

Pennington doctrine supports its thesis.1 But Noerr-

_________________________________________________________________

1. Named after two Supreme Court cases, Eastern Railroad Presidents

Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United

Mine Workers v. Pennington, 381 U.S. 657 (1965), Noerr-Pennington

immunity protects private parties from antitrust liability flowing from

valid petitioning activity to the government.

22

Pennington immunity applies to private, not

governmental, entities, and as I have pointed out and

will amplify later in this dissent, Herr's charges

encompass more than just petitioning activity. In short

-- Noerr-Pennington immunity may not be looked to in

an effort to resolve this controversy.

4. Of even greater significance, the majority has ignored,

and has not even referred to, a Third Circuit opinion

relevant here. Grant v. Pittsburgh, 98 F.3d 116 (3d Cir.

1996) holds, albeit in a qualified immunity context, that

claims of substantive due process violations of the kind

alleged by Herr require careful examination by the courts of

the motive and intent of the relevant government entity

involved. In short -- the majority's opinion would ignore

Grant's teachings, and would preclude Herr's evidence of

improper motive and intent on the basis of a right to

petition. That preclusion is not recognized in our

jurisprudence.

I.

It should be recalled that Herr is a landowner with

property in Pequea Township. He submitted a plan for an

industrial park to the Lancaster County Planning

Commission ("LCPC"), which granted preliminary and final

approval to his plan. According to the relevant Pequea

Township ordinances, Herr's industrial park was to be

provided with public sewer service. It was only after Herr

received approval from the LCPC that the Township

modified its ordinances and engaged in multiple court and

other actions which the record reveals were designed to

prevent the development of Herr's property in accordance

with the industrial nature of the zoning approval. It did so

because the Township desired the property to be used for

agricultural purposes rather than the zoned industrial

purposes.

Herr, whose legal position to develop an industrial

property was eventually upheld by the courts of

Pennsylvania,2 faced roadblocks at every step of his

_________________________________________________________________

2. The majority provides that the Township's"basic position in the sewer

litigation that Herr had no vested rights to municipal sewer services

23

attempts at industrial development for over eleven years. It

was not just a case of litigating his rights (which he was

forced to do), but it was a case where the Township, which

had a very deliberate and intentional motive to prevent Herr

from developing his property, obstructed Herr at every turn

of the road.

Both parties tried this case to summary judgment on the

issue that Herr's substantive due process rights had been

violated. Counsel for both parties rejected the majority's

suggestion that McArdle v. Tronetti, 961 F.2d 1083 (3d cir.

1992), had anything to do with Herr's predicament. McArdle

is a classic malicious abuse of prosecution case, whose

viability is in substantial doubt after the Supreme Court

decision in Albright v. Oliver, 510 U.S. 266 (1994).

Moreover, neither counsel relied on any aspect of Pequea

Township's 1st Amendment right to petition or the Noerr-

Pennington doctrine. Rather, both parties in this case

approached the issue on appeal in a straight-forward

manner -- the one asserting and the other denying a

substantive due process violation.

The plaintiff, Herr, contended that Pequea Township was

motivated by a desire to retain his property as agricultural

property. Herr, who had purchased the property and was

"grandfathered" into the zoning of the property as industrial

(so long as he developed the property within five years),

claimed that Pequea Township's acts were taken in bad

faith and with an improper motive, thus preventing him

from developing his property. Pequea, on the other hand,

_________________________________________________________________

under the 1971 sewage facilities plan was ultimately sustained by the

Commonwealth Court," and therefore was a "winning argument." Maj.

op. at 17. This reading by the majority, however, does not tell the whole

story. In fact, the Commonwealth Court -- while disagreeing with the

Environmental Hearing Board and ruling that the protection offered to a

developer's approved plan under S 508 of the Pennsylvania Municipalities

Planning Code did not apply to sewage facility plans-- nevertheless

found the Board's error to be harmless and ruled in favor of Herr. See

Pequea Township v. Herr, 716 A.2d 678, 684-85 (Pa. Commw. Ct. 1998).

Indeed, the Commonwealth Court agreed that "Herr had established that

[Pequea Township's] 1992 sewage plan was inadequate to meet Herr's

sewage disposal needs," and upheld Herr's right to municipal sewage

services from Pequea. Id. at 685.

24

argued that motive was not an issue, and that if it had

been, their motives were proper.

I suggest that this is the issue that must be resolved, not

the issues manufactured by the majority on which they

have decided to resolve this controversy.

II.

We have held that "non-legislative state action," which is

the type of state action at issue here, "may . . . give rise to

a substantive due process claim upon allegations that the

government deliberately and arbitrarily abused its power."

Nicholas v. Pennsylvania State University, 227 F.3d 133,

139 (3d Cir. 2000) (internal quotation marks omitted). A

substantive due process claim arising out of non-legislative

state action has two elements: 1) "we must look, as a

threshold matter, to whether the property interest being

deprived is `fundamental' under the Constitution," Nicholas,

227 F.3d at 142; and 2) the plaintiff "also must

demonstrate that [he] was the victim of `a governmental

action [that] was arbitrary, irrational, or tainted by

improper motive.' " Woodwind Estates, Ltd. v. Gretowski,

205 F.3d 118, 124 (3d Cir. 2000). Grant v. City of

Pittsburgh, 93 F.3d 116, 124-25 (3d Cir. 1996) adds that a

court is to consider evidence of a defendant's state of mind

[here, Pequea's] when motivation is an essential element [as

it is here] of the plaintiff 's [Herr's] civil rights claim.

A.

There can be no doubt that the property interest at issue

here is "fundamental." "Indeed," as we held in DeBlasio v.

Zoning Board of Adjustment for the Township of West

Amwell, "one would be hard-pressed to find a property

interest more worthy of substantive due process protection

than ownership." 53 F.3d 592, 601 (3d Cir. 1995).

Accordingly, I believe, and the majority agrees as well, see

maj. op at 10, that the District Court properly held that

Herr's interest in developing his property was an interest

worthy of due process protection.

25

B.

Because Herr has alleged a violation of a fundamental

property interest, it must be determined whether Herr has

suffered from "a governmental action [that] was arbitrary,

irrational, or tainted by improper motive." Bello v. Walker,

840 F.2d 1124, 1129 (3d Cir.1988). We have made clear

that, "[i]n disputed factual situations, the determination of

the existence of improper motive or bad faith is properly

made by the jury as the finder of fact." Woodwind Estates,

Ltd. v. Gretowski, 205 F.3d 118, 124 (3d Cir. 2000). We

also observed in Woodwind that "we have not hesitated to

vacate a grant of summary judgment or a judgment as a

matter of law where the evidence at least plausibly showed

that the government took actions against the developer for

indefensible reasons unrelated to the merits of the zoning

dispute." 205 F.3d at 124. In this context, "the intentional

blocking or delaying of the issuance of permits for reasons

unrelated to the merits of the permit application violates

principles of substantive due process and is actionable

under S [1]983." Woodwind, 205 F.3d at 124-25.

Looking at the facts in the light most favorable to Herr,

because it was Pequea Township, the defendant, which had

moved for summary judgment, I believe that a rational jury

could and would certainly find that the Township

intentionally blocked or delayed Herr's development of his

property "for reasons unrelated to the merits" of his

development plan. Indeed, the evidence suggests that the

Township used every effort -- including access to the courts

-- to hinder development of Herr's land.

There is extensive evidence from which a jury could find

that the Township acted arbitrarily, irrationally, or with

improper motive. Alan S. Peterson ("Peterson"), Chairman of

the Pequea Township Environmental Advisory Council, sent

numerous letters in 1990 to such places as the Nature

Conservancy, the Pennsylvania Historical and Museum

Commission, the Pennsylvania Game Commission, and the

Pennsylvania Fish Commission, asking them to review

Herr's proposal "for possible endangered species or other

environmental rarities," "for possible historical or

archaeological significance," and "for . . . species of special

concern." (App. 612a-615a.) Peterson also sent another

26

round of letters in early 1992 to the Lancaster Water

Authority, the Pennsylvania Power & Light Company, the

Suburban Lancaster Sewer Authority, and Department of

Transportation, among others, informing them about

concerns related to Herr's proposal. (App. 616a-622a.)

Additionally, Virginia K. Brady ("Brady"), a member of the

Township Board of Supervisors and a defendant in this

action, sent similar letters in October 1993 to the

Department of Transportation, the Bureau of Dams and

Waterways, the Department of the Army, and the Lancaster

City Engineer in October 1993. (App. 638a-641a.)

Peterson sent a letter to Eugene Dice, an attorney,

stating:

Only Virginia Brady and I in the township know the

following: (Do not state this back to the township in

any manner). The owner must sell the lots, then all the

land development plans must be approved by 10/94 or

they become nonconforming lots in the Ag. District.

Obviously the longer we can stall (if we can't win this

with DER), the better. . . . We want this defeated after

our four year struggle!

(App. 374a-375a (emphasis added).)

Brady stated at her deposition: "Development is not bad.

However, to put -- and this is a personal opinion-- to put

development on prime agricultural soils is not right, and

that is a personal belief I have had for many, many, many

years." (App. 216a.). Additionally, Brady was quoted in a

1997 newspaper article, regarding the "battle" between Herr

and Pequea Township over his development plan, as

stating: "We already have an industrial park," and "I am

opposed to paving over any prime agricultural land." (App.

585a-586a.) Bruce Groff, another member of the Board of

Supervisors and a defendant in this action, was quoted as

saying that "support [for rural preservation] is desperately

needed to deter recent and future horrendous proposals

being prepared by developers." (App. 379a.)

Herr received a letter in April 1999 from Robert G.

Sneath, whose company had been a potential buyer of

space at Herr's proposed industrial park, in which Mr.

27

Sneath requested that Herr release him from the agreement

of sale, explaining:

My Associate, Glenn Warfel, talked to the zoning officer

about our plans. His name is Wes Brocknoe. . . Glenn

was informed that your plans were under litigation and

the land was still zoned agricultural by Pequea

Township. The zoning officer was not at liberty to talk

about it. With timing important to us, this was not

encouraging.

(App. 210a.) Mr. Sneath also stated, "Quite frankly,

everything I have heard about dealing with Pequea

Township is negative. I have no desire to invest my money

in a township with a negative attitude. It looks like this

development could take forever to be approved by the

township." (App. 210a.)

In light of this evidence, it is clear to me that the issue

of whether the Township had an improper motive must be

sent to the jury. Indeed, it is inconceivable to me how the

District Court could have held otherwise. The District Court

analyzed the evidence without regard to the fact that the

issue of improper motive was before the court on a

summary judgment motion, in which the court was required

to draw all reasonable inferences in Herr's favor. Instead,

the District Court several times drew inferences in Pequea

Township's favor in direct contravention of the summary

judgment standard.

For instance, the District Court drew the following

conclusions from the evidence: 1) "the reasonable inference

to be drawn is that Defendants wished to zone [another

land parcel which was permitted to remain industrial]

consistently with its current use, rather than carry out the

pointless exercise of changing the zoning to agricultural but

grandfathering the preexisting industrial use"; 2) "there is

no evidence before us that Defendants knew they could not

stop development of Millwood Park, yet acted merely to

delay and harass Plaintiff "; 3) "the mere fact that Dr.

Peterson claims that Virginia Brady was aware of the time

limit imposed by [the grandfather clause under which

Herr's land was zoned industrial] does not imply an

improper motive on her part"; 4) there was "no basis for an

28

inference that Defendants pursued the sewer litigation for

any purpose other than a genuine desire not to have

Millwood Park come about in the form proposed by

Plaintiff "; and 5) "[t]here is no basis to determine what the

true motives [of the Township] were." (App. 21a-25a.)

Additionally, I should note that a motive on the part of

the Township to prevent industrialization of land, i.e., "not

to have Millwood Park come about in the form proposed by

Plaintiff," (App. 25a), is not related to the merits of the

zoning dispute between Herr and the Township. Herr had

already submitted his plan to a separate governmental

entity (the LCPC), which approved Herr's plan before the

Township could pass legislation which would prevent the

proposed development. The fact that the Township properly

enacted new zoning and sewage ordinances with the goal of

reducing development does not mean that its actions to

attempt to defeat a development plan that had legitimately

escaped its regulation were proper. Indeed, in my view, the

Township's motive in enacting new ordinances and plans

relating to land use is irrelevant, and the District Court

erred in considering it.

III.

The majority holds that the Township's litigation-related

actions are protected by the 1st Amendment right to

petition and that, therefore, they cannot form the basis of

Herr's substantive due process claim. Holding that Herr

could not prove any injury without these actions, the

majority affirms the District Court's summary judgment

dismissal of Herr's substantive due process claim. I cannot

agree with this holding because the right to petition does

not bar substantive due process liability for litigation

arbitrarily and irrationally initiated by a governmental

entity.

A. Pequea's Actions Other and Apart from Litigation

As an initial matter, Herr's evidence in support of his

substantive due process claim is not simply limited to the

Township's litigious behavior. Herr presents evidence of a

litany of conduct by the Township above and beyond its

29

litigation activity over a span of eleven years-- all of which

was purportedly designed to delay and block the industrial

development of Herr's land.

This evidence includes: (1) proof of the Township's

campaign since 1990 to find problems with, or raise

unfounded concerns about, Millwood Industrial Park with

the hope that the problems raised would lead to delays

leading past the five-year grandfather period; (2) proof of

the Township's "extra scruntiny" of Herr's applications in

an effort to delay the development past the five-year period;

(3) proof of the Township's denial of Herr's applications for

public sewer service motivated by reasons unrelated to

water-quality issue but rather by Pequea's desire to hold up

Herr's development; and (4) proof that the Township's

issuance of an enforcement notice was part of a campaign

to delay development. This conduct has nothing to do with

litigation or petitioning activity before the LCPC or state

courts, and therefore -- even assuming the majority's right

to petition is correct -- it would not be immunized by the

1st Amendment.

B. Counsel's Rejection of Pequea's Petitioning Right

Next, Pequea Township itself has rejected any claim or

theory dependent upon the right to petition, declining to

rely on any such theory even after it was encouraged to do

so. Not only was this theory never raised, entertained or

discussed by the very party to whose benefit it would

redound, but when asked for supplemental memoranda

pertaining to that issue, both Herr and Pequea declined to

embrace or rely on such a theory. They did so because both

parties recognized that this case was a garden variety

substantive due process proceeding.

Likewise, the majority's reliance upon McArdle v. Tronetti,

961 F.2d 1083 (3d Cir. 1992) -- which it urged upon the

parties -- is inapposite. There, we analyzed the plaintiff 's

S 1983 claim as a malicious use of civil process claim in

violation of his 14th Amendment rights. Referring to Lee v.

Mihalich, 847 F.2d 66 (3d Cir. 1988), and its progeny, we

reasoned that "a claim of malicious use of process may

state a S 1983 claim if it includes the elements of that

30

common law tort as it has developed." McArdle , 961 F.2d at

1088. Accordingly, we required that such a claim requires

proof that (1) the defendant "acted in a grossly negligent

manner or without probable clause and primarily for a

purpose other than that of securing the proper . . .

adjudication of the claim in which the proceedings are

based; and (2) the proceedings have terminated in favor of

the person against whom they are brought." Id.

Setting aside the issue of McArdle's questionable viability

after the Supreme Court decision in Albright v. Oliver, 510

U.S. 266 (1994),3 the majority, by claiming that "Herr's

S 1983 claim against the defendants in this case is

analogous to the common law tort of malicious use of civil

process by a state actor," see maj. op. at 16, again directly

contradicts the repeated and equivocal positions of both

Herr's and the Township's counsel that Herr's claims were

not malicious use of process claims. Indeed, in a

Supplemental Letter Brief dated June 1, 2000 (ordered by

this Court), the Township specifically conceded that:

the McArdle principles do not apply to the instant

appeal. . . . Because the issues regarding abuse of

process have not been raised by [Herr] in the instant

appeal and because [Herr] has not produced evidence

to allow a finding of abuse of process, [the Township]

argues that McArdle has no relevance to the instant

appeal. . . . [T]he principles of McArdle have no

determinative effect on this Honorable Court's ability to

decide that there is insufficient evidence of record to

support a reasonable jury finding of a substantive due

process violation.

Similarly, Herr agrees that his claims are not malicious use

of process claims. While I acknowledge that we should

recognize the correct jurisprudence even if counsel declines

_________________________________________________________________

3. The Supreme Court's holding in Albright -- which suggested that a

malicious prosecution claim must be anchored in explicit constitutional

text, such as the Fourth Amendment, rather than generalized notions of

due process -- has cast doubt on the viability of Lee v. Mihalich and its

progeny, including McArdle. See,e.g., Gallo v. City of Philadelphia,161

F.3d 217, 222 (3d Cir. 1998) ("[Albright] has created great uncertainty in

the law" of malicious prosecution under S 1983 and Bivens).

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to do so, we should not, as the majority has done here,

devise our own theory of liability (or immunity) after

counsel has deliberately rejected that theory, particularly

since it is flawed and lacks support in our jurisprudence.

Indeed, I think it is inappropriate and improvident to

substitute a panel's theory for counsel's, particularly when

it is obvious from our own jurisprudence that the issue of

improper motive in a substantive due process case is one

for the jury and not for the judge. See Woodwind , 205 F.3d

at 124; Grant, 93 F.3d at 124-25.

Nevertheless, even if McArdle were applicable, Herr's

claims (as discussed previously) encompass more than just

abuse of process. Rather, his claims are based upon

specific evidence showing that the Township blocked and

delayed the industrial development of his land at every

possible turn. The use of the court system is just one,

albeit important, evidentiary example of the Township's

tactics. Accordingly, the holding in McArdle -- even if

applicable -- is too circumspect to be of value as to Herr's

claims of substantive due process.

C. A Right to Petition Cannot Trump Illegal Municipal

Actions and Cannot Defeat a Legitimate Substantive Due

Process Claim

Even if a right to petition were relevant in this case, it

cannot defeat or overcome an individual's substantive due

process right where evidence has been presented that the

Township of Pequea has engaged in arbitrary and

capricious behavior. The improper motives of the Township

cannot be immunized by resorting to a right to petition and

the majority has cited to no authority which would support

such aberrant jurisdiction.

Though it is true that the First Amendment encompasses

a right to petition, this right is "not absolute." San Filippo

v. Bongiovanni, 30 F.3d 424, 435 (3d Cir. 1994).

Additionally, the doctrine of substantive due process does

not require that the actions taken by the government be

illegal to constitute a due process violation. Instead,

substantive due process "protects individual liberty against

`certain government actions regardless of the fairness of the

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procedures used to implement them.' " Collins v. Harker

Heights, 503 U.S. at 125 (quoting Daniels v. Williams, 474

U.S. 327, 331 (1986)) (emphasis added). Indeed, courts

have repeatedly explained that substantive due process

protects against "the arbitrary exercise of the powers of

government." Bello v. Walker, 840 F.3d 1124, 1128 (3d Cir.

1988) (internal quotation marks omitted). Implicit in this

statement is that the actions that form the basis of

substantive due process claims are actions that are within

the government's power but nevertheless may be

constitutional violations in a particular case because of the

government's motive in exercising that power.

Accordingly, because of this clear indication in

substantive due process jurisprudence that it is not the

government's legal authority to exercise its power but its

motive that is relevant in analyzing a substantive due

process claim, I cannot agree with the majority's holding

that the Township did not violate Herr's substantive due

process rights simply because its actions were protected by

the right to petition.

By immunizing motive and intent whenever there is

petitioning activity on the part of the government, the

majority effectively renders the 14th Amendment powerless,

turning it into mere surplusage any time improper litigious

activity by a municipality is asserted. This "would

essentially insulate government officials from liability for the

very harm our substantive due process precedents have

sought to redress: using government authority to take

actions that, because of the improper motives of public

officials, have no rational relationship to a legitimate

government purpose." Grant, 98 F.3d at 125 (emphasis

added).

In this way, the right to petition -- which, by the

majority's reasoning, virtually always defeats any evidence

of a substantive due process violation -- would insulate the

Township from the very arbitrary and capricious

governmental conduct that is meant to be protected by the

14th Amendment. By this reasoning, the right to petition

would also immunize a municipality of liability under the

Equal Protection Clause -- also a 14th Amendment claim

-- notwithstanding evidence that a particular municipality

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had pursued delay litigation tactics because of an

individual's race or religious beliefs, just so long as it could

articulate some non-frivolous justification to support its

lawsuit. Such a result is clearly contrary to our

constitutional jurisprudence.

D. Noerr-Pennington is Not Applicable and Not Relevant

to Government Misconduct

In an effort to bolster its conclusion that Herr's due

process claim is barred by the Township's right to petition,

the majority claims that the Noerr-Pennington doctrine

supports its thesis. In our most recent exposition of the

doctrine, we have described Noerr-Pennington immunity as

follows:

Under the Noerr-Pennington doctrine, private parties

may be immunized against liability stemming from

antitrust injuries flowing from valid petitioning. This

includes two distinct types of actions. A petitioner may

be immune from the antitrust injuries which result

from the petitioning itself. Also . . . parties are immune

from liability arising from the antitrust injuries caused

by government action which results from petitioning.

A.D. Bedell Wholesale Company, Inc. v. Philip Morris Inc.,

263 F.3d 239, 251 (3d Cir. 2001) (citations omitted).

"Rooted in the First Amendment and fears about the threat

of liability chilling political speech," the Noerr-Pennington

doctrine generally insulates a private entity which petitions

the government for redress from antitrust liability"even if

there is an improper purpose or motive" behind the

petitioning activity. Id. at 250 (emphasis added). We have

also noted that "the immunity reaches not only to

petitioning the legislative and executive branches of

government, but `the right to petition extends to all

departments of the Government,' including the judiciary."

Id. (quoting California Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508, 510 (1972)).

The Noerr-Pennington doctrine, and the rationale behind

it, however, is not applicable here. First, in this case, it

seeks to immunize too much. Because Herr's charges

include more than appropriate petitioning activity on

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Pequea's part (see Section III.A., supra ), the application of

Noerr-Pennington here cannot insulate or immunize Pequea

from Herr's claims.

Second, and more importantly, however, Noerr-Pennington

immunity applies to private parties -- not governmental

entities -- seeking redress from the government. See Video

International Production, Inc. v. Warner-Amex Cable

Communications, Inc., 858 F.2d 1075, 1082-84, 86

(applying Noerr-Pennington protection to private cable

operator against antitrust, tort and S 1983 co-conspirator

liability, but noting as to municipal liability that"Noerr-

Pennington protection does not apply to the government");

see also Professional Real Estate Investors, Inc. v. Columbia

Pictures Ind., Inc., 508 U.S. 49 (1993) (protecting private

movie companies against antitrust liability); Bill Johnson's

Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (extending

1st Amendment protection to private employer who filed

lawsuit against former employee allegedly in violation of the

National Labor Relations Act); California Motor Transport

Co. v. Trucking Unlimited, 404 U.S. 508 (1972) (refusing to

apply 1st Amendment protections to private trucking

company because it fell within "sham" exception); Gorman

Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980)

(immunizing private defendants against S 1983 liability on

the basis of Noerr-Pennington protection, but holding public

officials immune on grounds other than Noerr-Pennington

immunity); State of Missouri v. National Organization for

Women, 620 F.2d 1301 (8th Cir. 1980) (protecting private

women's organization against antitrust liability); Stern v.

United States Gypsum, Inc., 547 F.2d 1329 (7th Cir. 1977)

(protecting corporation and its officers againstS 1985

liability). To the extent that the majority has cited one case

that could arguably be seen as extending this immunity to

a governmental entity, the protection immunized the party

only against statutory liability, not against a constitutional

deprivation. See Armstrong Surgical Center, Inc. v.

Armstrong County Memorial Hospital, 185 F.3d 154 (3d Cir.

1999).4

_________________________________________________________________

4. In Armstrong, Noerr-Pennington protection was afforded to a hospital

and its staff physicians from antitrust liability under the Sherman Act.

35

Accordingly, the application of the Noerr-Pennington

doctrine cannot resolve, and cannot be analogous to, the

following conflict: whether a governmental entity's

[Pequea's] 1st Amendment right to petition always trumps

an individual citizen's [Herr's] 14th Amendment due

process right to be free from arbitrary and capricious

government activity.5 The majority provides no authority

extending Noerr-Pennington to conduct by government

entities which have been shown to have acted in violation

of constitutional restrictions. Nor do I know of any

authority purporting to extend Noerr-Pennington in such a

way so as to per se defeat an individual's constitutional

rights under the 14th Amendment.

One of the cases cited by the majority, Brownsville

Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3d

Cir. 1988), involved a nursing home operator that filed state

tort claims against two private individuals and a public

official. There, the nursing home alleged that the

defendants improperly scrutinized its operations through a

publicity and letter-writing campaign which ultimately led

to its loss of license. This Court affirmed the district court's

grant of summary judgment against the nursing home

because it failed to "raise a material issue of fact" on its

state law claims of tortious interference with business

relations and civil conspiracy. Id. at 159 (emphasis in

original). Specifically, we agreed with the district court that

_________________________________________________________________

While the caption of that case suggests that the hospital may have been

a county hospital, the issue of whether it was a"municipality" or a

"government entity" was never addressed. Indeed, the opinion itself

appears to have referred to the defendant hospital as a "private party" a

number of times, and explicitly characterized the Noerr-Pennington

immunity as an "immunity for private parties." See, e.g., id. at 159-61,

62 (emphasis added).

5. It is axiomatic that government entities, unlike private citizens, are

limited by the Constitution from certain conduct in ways that individuals

are not (see, e.g., the Due Process Clause and the Equal Protection

Clause). Therefore, providing a private citizen an absolute per se

immunity arising from his or her 1st Amendment right to petition is far

different than providing such an absolute constitutional right to a

governmental entity such as Pequea Township.

36

the plaintiff failed to show that the defendants actions were

"unlawful" or "improper" (as required by those torts) since

the Pennsylvania courts had conclusively determined that

the revocation of the home's license was warranted

"because of its serious violations of nursing home

standards." Id.

Invoking, by analogy, the principles underlying

defamation cases, e.g., New York Times v. Sullivan, 376

U.S. 254 (1964), and Noerr-Pennington cases, we held that

the defendants' actions "in calling [plaintiff 's] violations to

the attention of state and federal authorities and eliciting

public interest cannot serve as the basis of tort liability."

Brownsville, 839 F.2d at 160. This ruling is a far cry from

the situation in this case wherein Herr has presented

credible evidence showing that the Township's motivations

behind its delay tactics and in litigating the "sewer" issue

were prompted by a desire to thwart Herr from his rightful

claim to develop his property as well as a scheme to delay

Herr sufficiently such that his five-year grandfather period

would expire. In addition, unlike the allegations made in

Brownsville, Herr's claims sound in direct constitutional

authority and not in state common law or statutory

liability.

E. Grant v. Pittsburgh

Finally, by disregarding evidence of the Township's

motive and intent, the majority has ignored our holding in

Grant v. Pittsburgh, 98 F.3d 116 (3d Cir. 1996). There,

Grant (a land developer) brought suit against certain city

officials under S 1983 alleging, inter alia, violations of his

substantive due process rights. In particular, Grant claimed

that the nomination by city officials of two buildings for

historic preservation under the Pittsburgh Historic

Structures, District, Sites and Objects Ordinance,

Pittsburg, Pa. Code Title 1007, S 513, effectively prevented

the buildings from being demolished and thereby thwarted

Grant's plans to develop the property on which the

buildings were located. Grant alleged that the nomination

was not motivated by public interest, but rather by partisan

and personal politics having no bearing on the historic

37

preservation of the buildings. The defendants claimed

qualified immunity.

The district court, failing to consider each defendant's

role individually in the alleged conduct, nonetheless denied

the officials' summary judgment motion based upon

qualified immunity. This Court remanded the qualified

immunity issue for reevaluation as to the specific conduct

of each defendant, but specifically noted that "courts are

not barred from examining evidence of a defendant's state

of mind in considering whether a plaintiff has adduced

sufficient evidence to withstand summary judgment on the

issue of qualified immunity, where such state of mind is an

essential element of the constitutional violation itself." Id. at

124 (citations omitted). In particular, our Court specifically

recognized that,

[t]he substantive due process violation alleged in this

case is precisely the sort of claim where clearly

established law makes the conduct legal or illegal

depending upon the intent with which it is performed .

By their very nature, substantive due process claims of

this kind involve the application of otherwise legitimate

government machinery to achieve an illegitimate end.

. . . [W]hen the same officials invoke administrative

processes with an illicit purpose, they are violating

substantive due process guarantees and, at the same

time, `clearly established' law.

Id. at 125 (citations omitted) (emphasis added). Although

decided in the context of qualified immunity, Grant

expressly recognizes and acknowledges that substantive

due process claims often involve the use of legitimate

governmental processes by government officials for

illegitimate ends, and that the proper inquiry focuses not

upon the propriety of the processes utilized, but rather

upon the motives of the officials involved.

Here, the very essence of Herr's substantive due process

allegations depend upon the motives behind the actions

taken by the Township and the individual defendants. As

already discussed (see Section II.B., supra), Herr has

presented particularized and specific evidence which-- if

credited -- could reasonably lead a jury to conclude that

38

the actions by Pequea Township in this case were motivated

by illicit purposes, and thereby violated Herr's substantive

due process rights under the 14th Amendment.

IV.

The District Court noted that "we believe Defendants are

entitled to qualified immunity." (App. 30a.) The Supreme

Court stated in Harlow v. Fitzgerald: "government officials

performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known."

457 U.S. 800, 818 (1982). I would hold that the defendants

here should have known that their actions may have

violated Herr's substantive due process rights and,

therefore, they are not entitled to qualified immunity.

However, because I am satisfied that the issue of"improper

motive" must be returned for jury determination, even

though I believe that the Township has violated Herr's

constitutional right and that the right was clearly

established at the time of the violation, I would hold that

the qualified immunity issue should be addressed not by us

but in the District Court.

Such a holding would be consistent with our holdings in

Blanche Road Corp. v. Bensalem Township and Woodwind,

both of which involved substantive due process challenges

to governmental interference with land development plans.

In Blanche Road, we stated:

In the instant case . . . , when the evidence is viewed

in the light most favorable to plaintiffs, it is clear that

defendants could not have reasonably believed that

their conduct did not violate [plaintiffs']6 rights. If

defendants, for reasons unrelated to an appropriate

governmental purpose, intentionally conspired to

impede the development of the Blanche Road project,

by ordering that Blanche Road's applications be

reviewed with greater scrutiny in order to slow down

_________________________________________________________________

6. The text of the opinion says "defendants' rights," but this is clearly

a

typographical error.

39

the development and by ordering that efforts be taken

to shut down the development, such an arbitrary

abuse of governmental power would clearly exceed the

scope of qualified immunity. Accordingly, the defense of

qualified immunity is not available to defendants in the

instant matter.

57 F.3d 253, 269 (3d Cir. 1995). Similarly, we held in

Woodwind that: "In the instant case . . . , when the

evidence is viewed in the light most favorable to plaintiff, it

is clear that the supervisor defendants could not have

reasonably believed that their conduct did not violate

plaintiff 's rights." 205 F.3d at 125.

I believe that the defendants in this case have even less

claim to qualified immunity than the defendants in Blanche

Road. If the right to be free from state intervention with

land development was clearly established when Blanche

Road was decided (in 1995), it is even more clearly

established now in light of the Third Circuit's decision and

holding in Blanche Road.

V.

I would reverse the District Court's grant of summary

judgment to Pequea Township and remand the case for

trial, because Herr has a fundamental property interest;

there is a genuine issue of material fact as to whether the

Township acted with an improper motive; and the

Township's delay tactics, including its initiation of

litigation, is not protected from substantive due process

analysis by any claimed right to petition. Because the

majority of the panel holds otherwise, I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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