1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-1998

Sameric Corp of DE v. Cty of Philadelphia

Precedential or Non-Precedential:

Docket 97-1615

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Recommended Citation

"Sameric Corp of DE v. Cty of Philadelphia" (1998). 1998 Decisions. Paper 74.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/74
Filed April 10, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1615 

SAMERIC CORPORATION OF DELAWARE, INC., 

 Appellant 

v. 

CITY OF PHILADELPHIA; PHILADELPHIA HISTORICAL 

COMMISSION, an Agency of the City of Philadelphia; 

EDWARD A. MONTGOMERY, JR.; RICHARD TYLER, 

Ph.D.; CHRIS CASHMAN; DAVID BROWNLEE, Ph.D.; 

DAVID HOLLENBERG; BARBARA KAPLAN; JOAN 

FERRERA; and DAVID WISMER, Individually and in Their 

Official Capacities as Members of the Philadelphia 

Historical Commission. 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 95-07057) 

Argued March 9, 1998 

BEFORE: GREENBERG, SCIRICA, and ALDISERT, 

Circuit Judges. 

(Filed: April 10, 1998) 
 Richard A. Sprague 

 Geoffrey C. Jarvis (argued) 

 Charles J. Hardy 

 David S. Lubin 

 Sprague & Sprague 

 The Wellington Building, Suite 400 

 135 South 19th Street 

 Philadelphia, PA 19103 

 Attorneys for Appellant 

 Michael F. Eichert 

 (argued) 

 Chief Deputy City Solicitor 

 City of Philadelphia Law Department 

 1600 Arch Street, 8th Floor 

 Philadelphia, PA 19103 

 Robert C. Heim 

 Arthur Newbold 

 Diane S. Danoff 

 Aline Fairweather 

 4000 Bell Atlantic Tower 

 1717 Arch Street 

 Philadelphia, PA 19103 

 Attorneys for Appellees 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

Sameric Corporation of Delaware ("Sameric") appeals

from the district court's order of July 14, 1997, granting 

summary judgment to the City of Philadelphia (the "City") 

and various individual defendants. Sameric filed this action 

in November 1995 alleging that the City violated its federal 

and state constitutional rights by improperly designating 

Sameric's theater as an historic building and subsequently 

 2 
denying Sameric a permit to demolish the theater. 

Sameric's complaint alleged that, as a result of the 

defendants' unlawful designation of the theater and

subsequent denial of the demolition permit, its business 

was injured and it was forced to sell its properties, 

including the theater, at substantially less than fair market 

value. 

The district court had subject matter jurisdiction over 

these claims pursuant to 28 U.S.C. SS 1331, 1367. We have 

jurisdiction to review the final order of the district court 

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

II. FACTS AND PROCEDURAL HISTORY 

A. Philadelphia's Historic Preservation Ordinance 

The Philadelphia Historical Commission ("Historical

Commission") is an instrumentality of the City which 

administers Philadelphia's Historic Preservation Ordinance 

(the "ordinance"). The Historical Commission's primary 

obligation is to "[d]esignate as historic those buildings, 

structures, sites and objects which the Commission 

determines, pursuant to the criteria set forth in Subsection 

(5) of [Section 14-2007], are significant to the City." Phila. 

Code S 14-2007(4)(a). The ordinance permits the Historical 

Commission to designate a building1 as historic where at 

least one of ten enumerated criteria is met. 

When a building is proposed for historic designation, the 

Historical Commission prepares a nomination form, which 

begins the process by which the Historical Commission 

considers buildings for designation. The nomination form 

details information regarding the building's historic, 

architectural, and cultural features. The Designation 

Committee of the Historical Commission (the "Designation 

Committee") is responsible for selecting which nominated 

_________________________________________________________________ 

1. We use the term "building" throughout this opinion because this case 

involves a building. However, our discussion of the designation of a 

building under the ordinance also encompasses the designation of 

structures, objects, complexes of buildings, and districts which, for the 

most part, are treated equally under the ordinance.

 3 
buildings the Historical Commission will consider for 

historic designation. When the Designation Committee 

recommends a building for preservation, it presents its 

report and recommendation to the Historical Commission 

at a hearing on the matter. 

Pursuant to the ordinance, the owner of a building 

designated as historic may not demolish or alter that 

building without a permit from the Department of Licenses 

and Inspections ("Department of Licenses"). See Phila. Code 

S 14-2007(7)(a). If an owner desires such a permit, it 

applies to the Department of Licenses, which then forwards 

the application to the Historical Commission for review. An 

owner may obtain the permit where it is suffering "financial 

hardship" or the building "cannot be used for any purpose 

for which it is or may be reasonably adapted." Phila. Code 

S 14-2007(7)(f). The ordinance requires the Department of 

Licenses to grant the application if the Historical

Commission has no objection but to deny the application if 

the Historical Commission does object. See Phila. Code 

S 14-2007(7)(g). Upon the denial of such a permit, the 

owner may appeal to the Board of License and Inspection 

Review (the "Board of License Review"). See Phila. Code 

S 14-2007(10). 

B. Historic Designation of the Boyd Theater 

Prior to 1988, Sameric owned the Boyd Theater2 on 

Chestnut Street in Philadelphia. The Historical Commission 

began to consider the Boyd Theater as a candidate for 

designation as historic in 1984 or 1985 by reason of 

discussions between members of the Historical Commission 

and the City of Philadelphia Planning Commission. 

As a result, a staff employee of the Historical Commission 

prepared a nomination form for the Boyd Theater in 

January 1986. The nomination form detailed the Boyd

Theater's notable features and included photographs and 

citations to publications concerning the theater. The 

completed nomination form was forwarded to the 

Designation Committee, which held a meeting to consider 

_________________________________________________________________ 

2. The theater was also known as the Sameric Theater. 

 4 
the nomination. The Designation Committee decided 

unanimously to recommend to the Historical Commission 

that the Boyd Theater be designated as historic. 

Following this vote, the Historical Commission sent

Sameric a letter on March 28, 1986, indicating the 

Commission's intent to consider designating the theater. 

The letter notified Sameric that a hearing was scheduled for 

April 30, 1986, to consider the matter. At Sameric's 

request, the Commission postponed this hearing six times. 

On January 27, 1987, Sameric attempted to prevent the 

Historical Commission from considering the proposed

designation by filing an action in equity in the Court of 

Common Pleas of Philadelphia County seeking a temporary 

restraining order against the Historical Commission. The 

Court of Common Pleas stayed the Historical Commission's 

consideration of the proposed designation for 30 days. On 

January 30, 1987, the Historical Commission removed the 

suit to the United States District Court for the Eastern 

District of Pennsylvania on the grounds that some of the 

claims arose under the Constitution. The district court then 

granted the Commission's motion to dismiss Sameric's 

complaint.3 See Sameric Corp. of Chestnut St., Inc. v. 

Philadelphia Historical Comm'n, Civ. A. No. 87-553, 1987 

WL 7636, at *2 (E.D. Pa. Mar. 5, 1987). 

Following the district court's dismissal of the complaint, 

the Historical Commission held a hearing on March 25, 

1987, to consider the proposed designation of the Boyd 

Theater as historic. At the hearing, Commissioner David 

Brownlee, a member of the Designation Committee, 

presented the committee's recommendation and report. 

Although, during the hearing, Sameric's counsel repeatedly 

asked the Historical Commission to postpone the vote so 

_________________________________________________________________ 

3. The district court held that Sameric was not entitled to a preliminary 

injunction to prevent the Historical Commission from considering the 

designation of the theater because Sameric was not subject to an 

immediate threat. According to the court, the convening of a hearing did 

not in itself pose a threat to Sameric. Further, the court found that the 

potential designation would not harm Sameric, as only the subsequent 

denial of a permit required by virtue of the designation would pose a 

threat to Sameric. 

 5 
that Sameric could present evidence, the Historical

Committee voted to designate the Boyd Theater as historic, 

with only Commissioner John Street dissenting. 

Later that day, Sameric requested the Court of Common 

Pleas to vacate the Historical Commission's decision and 

reschedule the hearing because the Commission did not 

properly notify Sameric of the hearing and because Sameric 

was not prepared to present certain evidence at the

hearing. The court granted Sameric's request and ordered 

the Historical Commission to reconvene to hear the matter 

again. See Sameric Corp. of Chestnut St. v. City of

Philadelphia, Civ. A. No. 4525 (Ct. C.P. Phila. County Mar. 

25, 1987). 

The Commission held the second hearing on April 2, 

1987. At this hearing, Commissioner Brownlee again 

presented the Designation Committee's recommendation for 

designation and described the theater as a superb example 

of art deco. The Commissioner then presented a slide show 

detailing particular features of the theater, both interior 

and exterior. The Designation Committee's report 

emphasized that the building was an authentic example of 

art deco and that the building was "almost completely 

intact both on the interior and exterior." App. 54-55. 

The president of Sameric, Merton Shapiro, then testified 

that many of the features which the Designation Committee 

emphasized, such as the ticket booth, entrancewayfloor, 

glass doors to the main lobby, mirrors, and the lobby 

ceiling, were not original. Shapiro presented slides of the 

building which illustrated the original appearance of the 

theater, both exterior and interior, and narrated the 

presentation, pointing out all the changes that he and 

others had made to the appearance of the theater. App. 

163-69. Upon the completion of Shapiro's presentation, 

Richard Tyler, the Executive Director of the Historical 

Commission, acknowledged that Shapiro's presentation 

showed that there had been substantial changes to the 

appearance of the theater. Tyler also urged the Commission 

members to consider this evidence. App. 192. 

The Historical Commission also heard testimony on 

behalf of Sameric from a partner of an architecturalfirm 

 6 
regarding the authenticity of the Boyd Theater's art deco 

style. App. 183-87. According to the architect, the theater 

was not an architecturally notable building in either its 

original or present form. App. 184. In addition, the 

architect testified that of the 18 criteria enumerated in a 

scholarly treatise which identify the art deco style, the 

remaining portion of the Boyd Theater's original facade 

included only five. App. 184. 

At the close of the evidence, the Historical Commission 

again voted to designate the Boyd Theater as historic, with 

only Commissioner Street again voting against the 

designation. 

C. The State Court Proceedings 

Following the designation of the Boyd Theater as historic, 

on April 24, 1987, Sameric filed a complaint in equity in 

the Court of Common Pleas in Philadelphia County against 

the City challenging the designation of the theater. The 

parties agreed that Sameric's suit should be construed as 

an appeal from the decision of a local agency pursuant to 

2 Pa. Cons. Stat. Ann. S 752 (West 1995). See Sameric Corp. 

of Chestnut St., Inc. v. City of Philadelphia, 558 A.2d 155, 

156 n.1. (Pa. Cmmw. Ct. 1989). The Court of Common 

Pleas dismissed the action, and the Commonwealth Court 

affirmed, holding that the evidence regarding the exterior 

was sufficient to support the designation and that the 

designation of the interior was within the authority of the 

ordinance. See id. at 156-57. 

On appeal, the Supreme Court of Pennsylvania originally 

held that the historic designation of the Boyd Theater 

amounted to a taking without just compensation in 

violation of Article I, Section 10, of the Pennsylvania 

Constitution. See United Artists Theater Circuit, Inc. v. City 

of Philadelphia, 595 A.2d 6 (Pa. 1991).4 Thus, the court did 

not decide whether the designation was proper under the 

ordinance. One justice filed a concurring opinion stating 

_________________________________________________________________ 

4. Because Sameric sold its assets to United Artists in April 1988, the 

appellant was changed from Sameric to United Artists while the case was 

on appeal to the Supreme Court of Pennsylvania. 

 7 
that the designation was improper under the ordinance 

because it was based on the interior of the building; thus, 

he found it unnecessary and imprudent to reach the state 

constitutional issue. See id. at 28 (Cappy, J., concurring). 

The Supreme Court of Pennsylvania later granted 

rehearing and reconsidered the appeal. On rehearing, the 

court held that designating a privately owned building as 

historic did not automatically constitute an 

unconstitutional taking. See United Artists' Theater Circuit, 

Inc. v. City of Philadelphia, 635 A.2d 612, 620 (Pa. 1993) 

(hereinafter "United Artists' II"). However, the court also 

found that the ordinance does not permit designation based 

upon a building's interior, and therefore, the Historical 

Commission improperly designated the Boyd Theater to the 

extent the designation was based upon its interior. See id. 

at 622. Because the court found it impossible to separate 

the evidence so as to decide whether there was sufficient 

evidence based only on the exterior of the theater to 

support its designation, the court vacated the Historical 

Commission's designation of the Boyd Theater. See id. 

Insofar as we are aware, the Commission has not 

redesignated the building as historic. While the court in 

United Artists' II did not in its opinion remand the case to 

the Common Pleas Court, according to Sameric it is seeking 

damages in the Common Pleas Court attributable to the 

designation of the Boyd Theater as historic. 

D. Sameric's Application for a Demolition Permit 

On April 8, 1987, six days after the Historical 

Commission designated the Boyd Theater as historic,

Sameric filed an application for a demolition permit for the 

theater, which was transferred immediately to the Historical 

Commission for review. On April 9, 1987, the Architectural 

Review Committee of the Historical Commission held a brief 

hearing on Sameric's application. The Historical 

Commission then postponed consideration of the 

application until August 26, 1987. At a series of meetings, 

the Historical Commission considered evidence and, on 

December 2, 1987, it voted to deny Sameric's application 

for a demolition permit. On February 2, 1988, the Historical 

 8 
Commission issued its Findings of Fact and Decision. 

Pursuant to the ordinance, the Department of Licenses 

denied the permit based upon the Historical Commission's 

objection to it. See Phila. Code S 14-2007(7)(g). 

On December 15, 1987, Sameric appealed the denial of 

its application for a demolition permit to the Board of 

License Review. In April 1988, Sameric sold all of its 

theaters, including the Boyd, to United Artists Theater 

Circuit, Inc. Under the terms of the sale, Sameric retained 

its claims for damages resulting from the historic 

designation of the theater. After selling the property, 

Sameric abandoned its appeal of the denial of the permit. 

Thus, the Board of License Review never concluded its 

hearings or rendered a decision on Sameric's appeal. 

E. The District Court Proceedings 

In November 1995, Sameric instituted this suit in the 

United States District Court for the Eastern District of 

Pennsylvania against the City, the Historical Commission, 

and various individual defendants who were the Executive 

Director and Commissioners of the Historical Commission, 

in their individual and official capacities. Consequently, in 

the course of this opinion, depending upon our context, our 

references to the City may include all of the defendants. 

Sameric's complaint asserted claims pursuant to 42 U.S.C. 

S 1983 for violations of its federal substantive and 

procedural due process rights as well as a civil conspiracy 

claim against all defendants. In addition, Sameric alleged 

that the defendants violated various rights secured under 

the Pennsylvania Constitution. 

As a result of these alleged violations, Sameric asserts 

that its business was injured and that its property was 

reduced in value. In particular, Sameric alleges that 

beginning in late 1986, after the commencement of the 

designation proceedings, it was unable to obtainfinancing 

because the proposed designation of the theater would 

reduce the value of the property significantly. Thus, 

beginning in 1987, Sameric no longer could afford to obtain 

quality films for its theaters. Sameric contends that 

ultimately it was forced to sell its entire holdings because 

 9 
of its financial difficulties, and because of the historic 

designation it received substantially less than fair market 

value for the theater. 

The district court dismissed Sameric's procedural due 

process claim in February 1996, but Sameric does not 

appeal from this dismissal.5 At the close of discovery, on 

July 14, 1997, the district court granted the defendants' 

motion for summary judgment on the remainder of 

Sameric's claims. First, in an order from which Sameric 

does not appeal, the district court dismissed all claims 

against the Historical Commission because Sameric 

conceded that it was not a proper defendant. See Sameric 

Corp. of Del., Inc. v. City of Philadelphia, Civ. A. No. 95- 

7057, 1997 WL 399374, at *3 n.5 (E.D. Pa. July 14, 1997). 

Second, the district court found that, as a matter of law, 

the City was within its authority to designate the Boyd 

based on its future cultural value if converted to live 

performance space. The district court's subsequent 

holdings were based upon this finding. In particular, the 

district court held that (1) Sameric did not raise a genuine 

issue of material fact as to whether the defendants acted 

arbitrarily or with an improper motive in designating the 

Boyd Theater as historic; (2) the claims based upon the 

City's subsequent denial of Sameric's application for a 

demolition permit were not ripe; and (3) the individual 

defendants were entitled to immunity with respect to both 

the federal claims and those arising under the Pennsylvania 

Constitution. Sameric filed a timely notice of appeal from 

this order. 

_________________________________________________________________ 

5. The district court dismissed Sameric's procedural due process claims 

for failure to state a claim. See Sameric Corp. of Del., Inc. v. City of 

Philadelphia, Civ. A. No. 95-7957, 1996 WL 47973, at *4 (E.D. Pa. Feb. 

2, 1996). The district court held that Pennsylvania provided a judicial 

mechanism permitting Sameric to challenge the designation of the Boyd 

Theater. See id. In particular, the district court noted that the parties 

agreed that the state court action should be treated as an appeal of the 

designation. See id. 

 10 
III. DISCUSSION 

A. Substantive Due Process 

Sameric's complaint asserts a 42 U.S.C. S 1983 claim 

that the Historical Commission's designation of the Boyd 

Theater as historic and its subsequent denial of the 

demolition permit violated Sameric's substantive due 

process rights. According to Sameric, the defendants, in 

taking these actions, were motivated by the ultra vires 

purpose of obtaining a venue for live performances and, 

notwithstanding this purpose, they acted without factual 

support thus rendering their actions arbitrary and 

irrational. The district court granted defendants' motion for 

summary judgment, holding that it was proper under the 

ordinance to designate the theater based upon its potential 

as a performance space and that Sameric therefore failed to 

establish that there was a genuine issue of material fact 

that the defendants acted either with an improper motive or 

without a rational basis.6 

We exercise plenary review of the district court's grant of 

summary judgment. See City of Erie v. Guaranty Nat'l Ins. 

Co., 109 F.3d 156, 159 (3d Cir. 1997). We will affirm the 

summary judgment if, after a plenary review of the record, 

we find that there is no genuine issue of material fact for 

trial and the moving party is entitled to judgment as a 

_________________________________________________________________ 

6. In the alternative, the district court held that the individual 

defendants were entitled to qualified immunity from the federal claims 

because they were following their own reasonable interpretation of the 

ordinance. Given our conclusion that Sameric has not established a 

violation of a constitutional right, we need not consider the immunity 

issue. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793 

(1991) (stating that in considering whether a defendant is entitled to 

qualified immunity, a court first should consider whether the plaintiff 

has alleged a violation of a constitutional right).

We note, however, that, in the context of land-use decisions, this court 

has recognized the importance of broadly granting immunity to members 

of local boards to allow them to make decisions without the threat of 

being sued by every disgruntled applicant. See Bass v. Attardi, 868 F.2d 

45, 50 & n.11 (3d Cir. 1989) (citing Anastasio v. Planning Bd. of Twp. of 

W. Orange, 507 A.2d 1194, 1208 (N.J. Super. Ct. App. Div. 1986)). 

 11 
matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 

(1986); Petruzzi's IGA Supermarkets, Inc. v. DarlingDelaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). An issue 

is "genuine" if the evidence permits a reasonable jury to 

return a verdict for the non-moving party, accepting its 

evidence as true and drawing all justifiable inferences from 

the evidence in its favor. See Anderson, 477 U.S. at 248, 

255, 106 S.Ct. at 2510, 2513. 

Section 1983 is not a source of substantive rights, but 

provides a remedy against state officials for violations of 

constitutional rights. See City of Oklahoma City v. Tuttle, 

471 U.S. 808, 816, 105 S.Ct. 2427, 2432 (1985) (plurality 

opinion); Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 

S.Ct. 2689, 2694-95 n.3 (1979). The initial inquiry in a 

section 1983 suit is (1) whether the conduct complained of 

was committed by a person acting under color of state law7 

and (2) whether the conduct deprived the complainant of 

rights secured under the Constitution or federal law. See 

West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 

(1988); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d 

Cir. 1995). 

To establish a substantive due process claim, a plaintiff 

must prove that it was deprived of a protected property 

interest by arbitrary or capricious government action. See 

Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 

(3d Cir. 1993). Because the defendants conceded in the 

district court that Sameric had a property interest sufficient 

to invoke the protections of substantive due process, the 

only issue on this point is whether the City 

unconstitutionally deprived Sameric of that interest. A 

substantive due process violation is established if "the 

government's actions were not rationally related to a 

legitimate government interest" or " `were in fact motivated 

_________________________________________________________________ 

7. There is no dispute that the defendants herein are "persons" acting 

under color of state law. The City is subject to section 1983 liability 

for 

injuries caused by its official policies and customs, see Monell v. 

Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38 

(1978), and actions by the Historical Commission, one of its agencies, 

constitute such official policies, see Pembaur v. City of Cincinnati, 475 

U.S. 469, 480, 106 S.Ct. 1292, 1298 (1986). 

 12 
by bias, bad faith or improper motive.' " Parkway Garage, 

Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d Cir. 1993) 

(quoting Midnight Sessions, Ltd. v. City of Philadelphia, 945 

F.2d 667, 683 (3d Cir. 1991)); see also Independent Enters., 

Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 

1179 (3d Cir. 1997) (government's deliberate and arbitrary 

abuse of authority violates substantive due process); Bello 

v. Walker, 840 F.2d 1124, 1129-30 (3d Cir. 1988) (same). 

The former inquiry is a question of law for the court 

whereas, if there is a genuine dispute of fact, the latter is 

a question for resolution by the jury. See Parkway Garage, 

5 F.3d at 692. 

1. Designation of the Boyd Theater 

a. Improper Motive 

Sameric alleges that the City designated the Boyd Theater 

based on its desire to procure live performance space, a 

consideration not within its authority under the ordinance, 

which thus was an improper motive. However, because the 

district court construed the ordinance to permit historic 

designation based on that consideration, the district court 

found that Sameric failed to establish a genuine issue as to 

whether the City acted with an improper motive. Sameric 

contends that the district court erred in its interpretation of 

the ordinance and therefore concludes that the district 

court erred in granting summary judgment because it

based its determination upon an erroneous interpretation of 

the ordinance. Although we agree that the district court 

erred in its interpretation of the ordinance and its analysis 

of the allegedly improper purpose thereby is flawed, we will 

affirm the grant of summary judgment for the following 

reasons. 

Our disposition of this issue involves three inquiries: (1) 

whether the consideration of the potential uses and future 

cultural value of a building is improper under the 

ordinance; and, if so, (2) whether Sameric presented 

evidence which creates an issue of fact as to whether the 

Commission was motivated by such considerations; and (3) 

whether the Commission acted with an "improper purpose" 

 13 
under substantive due process principles in considering 

criteria unauthorized under state law. We will discuss these 

inquiries in turn. 

Under the ordinance, a building may be designated as 

historic if it: 

 (a) Has significant character, interest or value as part 

 of the development, heritage or cultural characteristics 

 of the City, Commonwealth or Nation or is associated 

 with the life a person significant in the past; or 

 (b) Is associated with an event of importance to the 

 history of the City, Commonwealth or Nation; or, 

 (c) Reflects the environment in an era characterized by 

 a distinctive architectural style; or, 

 (d) Embodies distinguishing characteristics of an 

 architectural style or engineering specimen; or, 

 (e) Is the work of a designer, architect, landscape 

 architect or designer, or engineer whose work has 

 significantly influenced the historical, architectural, 

 economic, social, or cultural development of the City, 

 Commonwealth or Nation; or, 

 (f) Contains elements of design, detail, materials or 

 craftsmanship which represent a significant 

 innovation; or, 

 (g) Is part of or related to a square, park or other 

 distinctive area which should be preserved according to 

 an historic, cultural or architectural motif; or, 

 (h) Owing to its unique location or singular physical 

 characteristic, represents an established and familiar 

 visual feature of the neighborhood, community or City; 

 or, 

 (i) Has yielded, or may be likely to yield, information 

 important in pre-history or history; or, 

 (j) Exemplifies the cultural, political, economic, social 

 or historical heritage of the community. 

Phila. Code S 14-2007(5). In addition, the ordinance 

announces the following purposes: 

 14 
 (.1) preserve buildings, structures, sites and objects 

 which are important to the education, culture, 

 traditions and economic values of the City; . . . 

 (.5) strengthen the economy of the City by enhancing 

 the City's attractiveness to tourists and by stabilizing 

 and improving property values; 

Phila. Code S 14-2007(1)(b). 

Relying on the first enumerated criterion and thefirst 

and fifth stated purposes, the district court found that the 

ordinance is "broad enough to protect the possible cultural 

and economic gains which could accrue from preserving a 

theater of this size." Sameric Corp. of Del., Inc. v. City of 

Philadelphia, 1997 WL 399374, at *4. Thus, the court found 

that to the extent the Commission based its decision upon 

economic and cultural interests, it acted permissibly under 

the ordinance and noted that the ordinance was "not so 

narrow that it precludes historic designation based on 

either the size of the theater or its suitability as a 

performance venue." Id. 

We agree with the district court to the extent that it 

found that the ordinance permits consideration of cultural 

and economic factors. The plain language of the ordinance 

clearly refers to such considerations, see Phila. Code S 14- 

2007(1)(b)(.1) & (.5), and the ordinance declares a broad 

public policy to preserve the "historic, architectural, 

cultural, [and] aesthetic" merit of buildings. See Phila. Code 

S 14-2007(1)(a). In addition, the ordinance requires that the 

Historical Commission be composed of individuals with 

diverse expertise, emphasizing the concern for the culture, 

economy, and development of the City.8 See Phila. Code 

S 14-2007(3). We, however, cannot agree that the ordinance 

permits designation based upon the potential value of the 

theater if converted to a live performance venue. 

_________________________________________________________________ 

8. The ordinance requires that the Historical Commission be composed, 

inter alia, of the Director of Commerce, the Chairman of the City 

Planning Commission, a real estate developer, a representative from a 

community development corporation, and a representative from a 

community organization. 

 15 
Under Pennsylvania law, " `the power and authority to be 

exercised by administrative commissions must be conferred 

by legislative language clear and unmistakable. A doubtful 

power does not exist.' " United Artists' II, 635 A.2d at 622 

(quoting Pennsylvania Human Relations Comm'n v. St. Joe 

Minerals Corp., 382 A.2d 731, 735-36 (Pa.1978)). Because 

we find that the plain language of the ordinance does not 

confer clear and unmistakable authority to designate a 

building based upon its potential, future cultural value, we 

hold that the Historical Commission does not possess such 

authority. 

The enumerated purpose of the statute which relates

most directly to the culture of the City, see Phila. Code 

S 14-2007(1)(b)(.1), speaks in terms of the present

importance of the building to the City's culture. More 

importantly, the criteria enumerated in the ordinance 

conspicuously and consistently refer to the value of a 

building in the present tense. In particular, thefirst 

enumerated criterion for historic designation, upon which 

the City primarily relies, allows designation where the 

building "has significant . . . value as part of the 

development . . . of the City." Phila. Code S 14-2007(5)(a). 

The City argues that this criterion encompasses a 

designation where, as here, the Historical Commission finds 

that a building, if converted to a use for which it is 

suitable, would further a plan for the development of the 

City. 

We disagree. While the "development" of the City 

necessarily refers to the future of the community, the 

ordinance only refers to the present value of a building, 

which is on its face limited to a consideration of the present 

condition of a building. The ordinance clearly permits the 

Historical Commission to consider the future in only one 

instance, which is not applicable here -- the possibility that 

a building will yield important information. See Phila. Code 

S 14-2007(5)(i). Thus, the ordinance does not clearly permit 

the Historical Commission to consider potential uses of a 

building in evaluating its value. 

In addition, our interpretation follows the lead of the 

Pennsylvania Supreme Court's interpretation of this

ordinance. To our knowledge, the state court proceedings in 

 16 
this dispute, culminating in a decision by that court, have 

generated the only published judicial interpretation of this 

ordinance. It is axiomatic that the highest court of a state 

is the final arbiter of that state's law. See West v. American 

Tel. & Tel. Co., 311 U.S. 223, 236, 61 S.Ct. 179, 183 

(1940). Thus, although the Pennsylvania Supreme Court 

has not addressed the precise issue which we now 

consider, we give great weight to its interpretation of this 

ordinance in United Artists' II. We find that the district 

court's interpretation is inconsistent with the Pennsylvania 

Supreme Court's interpretation of the ordinance, namely 

that the Historical Commission has no authority to 

designate a building on the basis of its interior. 

In United Artists' II, the court held that "[t]he Historical 

Commission is not explicitly authorized by statute to 

designate the interior of the building as historically or 

aesthetically significant." United Artists' II, 635 A.2d at 622. 

The court began its analysis by noting the "clear and 

unmistakable" language standard in Pennsylvania 

administrative law. See id. The court then turned to the 

language of the ordinance and found that the only reference 

to the interior of the building in Phila. Code S 14-2007 is in 

the subsection which imposes upon the owner of a historic 

building the duty of care. See id. Because the language in 

that section concerns the interior only for the express 

purpose of supporting the exterior, the court found that it 

was beyond the Historical Commission's authority to

designate a building based upon its interior.9 See id. 

We find that, if the ordinance does not permit historic 

designation based upon an historic or aesthetic feature of 

the interior of a building, it necessarily does not permit 

designation based upon the cultural value or potential uses 

of the interior. This conclusion, in addition to our own 

_________________________________________________________________ 

9. Section 14-2007(8)(c) provides that 

 [t]he exterior of every historic building, structure and object and 

of 

 every building, structure and object located within an historic 

 district shall be kept in good repair as shall the interior 

portions of 

 such buildings, structures and objects, neglect of which may cause 

 or tend to cause the exterior to deteriorate, decay, become damaged 

 or otherwise fall into a state of disrepair.

 17 
interpretation of the plain language of the ordinance, leads 

us to the determination that the district court erred in its 

interpretation of the ordinance. This determination, 

however, does not end our inquiry. We also must consider 

whether Sameric established a genuine issue as to whether 

the Historical Commission was motivated by such a 

consideration, and, if such an issue exists, whether, as a 

matter of law, that motivation would constitute an 

"improper motive" under substantive due process 

jurisprudence. 

Citing primarily the testimony of one of the 

Commissioners, Barbara Kaplan, Sameric contends that it 

has produced evidence which creates a genuine issue of 

fact regarding the motivation of the Historical Commission 

in voting to designate the Boyd Theater. In her comments 

at the designation hearing and her deposition testimony, 

Commissioner Kaplan expressed her interest in the theater 

as cultural space, admitted that she considered potential 

uses of the theater, and stated that she was aware of the 

community's need for live performance space. 

We have held that evidence regarding the intentions of 

single member of a zoning board can create a genuine issue 

of fact as to the board's motive. See DeBlasio v. Zoning Bd. 

of Adjustment for the Twp. of W. Amwell, 53 F.3d 592, 602 

(3d Cir. 1995) (evidence that one member of the zoning 

board acted for personal reasons was sufficient to create a 

genuine issue as to whether the board's decision was 

influenced by that member's personal interest, and thus 

acted with an improper motive). Thus, given the evidence of 

Commissioner Kaplan's motivation, we assume without

deciding that this evidence creates a genuine issue of fact 

regarding whether the Historical Commission was 

motivated by the Boyd Theater's potential use and cultural 

value as performance space. 

However, only issues of material fact preclude entry of 

summary judgment. As the Supreme Court has stated, 

"[o]nly disputes over facts that might affect the outcome of 

the suit under the governing law will properly preclude the 

entry of summary judgment. Factual disputes that are 

irrelevant or unnecessary will not be counted." Anderson, 

477 U.S. at 248, 106 S.Ct. at 2510. Because this motive is 

 18 
not improper under substantive due process law, this issue 

of fact is not material, and summary judgment was proper. 

On this issue, at the outset we note that Sameric has not 

established, or for that matter even alleged, that the 

Historical Commission's decision to designate the building 

was motivated by personal gain, individuous discriminatory 

intent, or partisan political considerations, the presence of 

which we have found establish substantive due process 

claims based upon improper motive. See, e.g., DeBlasio, 53 

F.3d at 601 (personal financial interest); Parkway Garage, 

5 F.3d at 697 n.6 (economic motivation); Bello, 840 F.2d at 

1129 (partisan political or personal reasons); see also Grant 

v. City of Pittsburgh, 98 F.3d 116, 119 (3d Cir. 1996) 

(alleging that the defendants were motivated by partisan 

politics in designating an area as historic as they intended 

to thwart plaintiffs' development project so that the mayor 

would not receive credit for the resulting economic

benefits). 

Rather, Sameric proffers that the City's improper motive 

was its ultra vires reliance on procuring live performance 

space for the community. As discussed above, we find that 

the City did exceed its authority to the extent that it based 

its decision upon such a motivation. This error, however, is 

only one of law, and such an error is not sufficient in itself 

to establish a substantive due process claim. See Snowden 

v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402 (1944); 

Midnight Sessions, 945 F.2d at 684 (stating that federal 

courts are not in the business of granting federal"remedies 

for mere violations of state law"); Archie v. City of Racine, 

847 F.2d 1211, 1216-18 (7th Cir. 1988) (en banc) (holding 

that a violation of state law does not amount to a violation 

of due process). 

We recognize that, to prove a substantive due process 

claim, a plaintiff need not establish in every case that the 

defendants sought to advance personal interests. See 

Parkway Garage, 5 F.3d at 697 n.6. We find, however, that 

Parkway Garage does not lend Sameric support beyond

that point. In Parkway Garage, the plaintiff alleged that the 

City violated its substantive due process rights by

prematurely and unjustifiably terminating its lease and 

closing the garage that the plaintiff managed on the 

 19 
property. See id. at 689-91. While the City contended that 

its actions were in furtherance of the public safety to avoid 

the imminent collapse of the plaintiff's parking garage, the 

plaintiff presented evidence that this alleged motivation was 

a pretext. See id. at 693-94. Rather, according to the 

plaintiff, the City was motivated economically because the 

property was more valuable to the City without the 

encumbrance of the plaintiff's lease. Thus, we held that if 

the plaintiff proved that the defendants where driven by the 

economic benefit to the City, such a motivation would 

establish an improper motive sufficient to sustain a 

substantive due process claim. See id. at 699. 

There is no allegation here that the City sought to

advance its direct economic position in designating the 

theater. Thus, this case differs fundamentally from

Parkway Garage in which the City owned property involved 

in the case. Taken in the light most favorable to Sameric, 

the evidence supports an inference that the Historical 

Commission considered the potential uses of the Boyd 

Theater, which the Commission believed could fill a void in 

the community. There is not sufficient evidence, however, 

that the City was in a position to realize the type of direct 

economic gain alleged in Parkway Garage. Thus, we find 

that Sameric has not produced evidence of an "improper 

motive."10 

b. Arbitrary and Irrational Government Action 

As an independent basis for its substantive due process 

claim, Sameric also alleges that the City acted arbitrarily 

and irrationally in designating the Boyd Theater. Relying 

again on its interpretation of the ordinance, the district 

court concluded that because a designation as historic may 

be based upon its "significant interest or value to the 

_________________________________________________________________ 

10. Our conclusion that summary judgment was appropriate in this case 

is not at odds with the notion that the determination of whether 

defendants were motivated by bias, personal interest, or other improper 

motive is, if there is a genuine dispute of fact, a question of fact for 

the 

jury. See Parkway Garage, 5 F.3d at 692, 697 n.6. Here, we conclude 

that the particular motive which Sameric alleged is not improper as a 

matter of law. 

 20 
development of the City," Sameric Corp. of Del., Inc. v. City 

of Philadelphia, 1997 WL 399374, at *5, Sameric did not 

present evidence which creates a genuine issue of fact that 

the defendants lacked a rational basis for designating the 

Boyd Theater as historic. Sameric contends that because 

the district court based its holding on a misinterpretation of 

state law, we should reverse the grant of summary 

judgment. Again, although we agree that the district court 

erred in its interpretation of the ordinance, we find that 

Sameric has not produced sufficient evidence from which a 

jury could find arbitrary and irrational government

conduct. 

We have held that, in the context of a land-use decision, 

"the deliberate and arbitrary abuse of government power 

violates an individual's right to substantive due process." 

Bello, 840 F.2d at 1129 (declining to define the "outer limits 

of the showing necessary to demonstrate" arbitrary and 

irrational governmental action because the plaintiff 

adduced evidence that the decision was based upon 

"partisan political or personal reasons unrelated to the 

merits of the application for the permits"); see also 

DeBlasio, 53 F.3d at 601. Government conduct is arbitrary 

and irrational where it is not rationally related to a 

legitimate government purpose. See Parkway Garage, 5 

F.3d at 692; Midnight Sessions, 945 F.2d at 692; Pace 

Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1035 

(3d Cir. 1987). 

Our review of a locality's land-use decision asks whether 

the locality "could have had a legitimate reason for its 

decision." Pace, 808 F.2d at 1034, 1035 (citing Shelton v. 

City of College Station, 780 F.2d 475, 483 (5th Cir. 1986) 

(en banc) (holding that "federal judicial interference with a 

state zoning board's quasi-legislative decisions, like 

invalidation of legislation for `irrationality' or `arbitrariness,' 

is proper only if the governmental body could have no 

legitimate reason for its decision")). Thus, in Pace, we found 

that summary judgment for the defendant was appropriate 

because the township "could have had rational reasons for" 

its land-use decision relating to the property owner's 

development plan "and because th[e] complaint allege[d] no 

facts suggesting arbitrariness." Id. at 1036. In holding that 

 21 
the plaintiff in Pace did not allege sufficiently a substantive 

due process violation, we also noted that it did"not present 

a case involving actions aimed at this developer for reasons 

unrelated to land use planning." Id. at 1035. 

In Pace, we cited with approval Creative Environments, 

Inc. v. Estabrook, 680 F.2d 822 (1st Cir. 1982), which we 

again find persuasive. In Creative Environments, the 

plaintiff alleged that the town frustrated the plaintiff's 

development plans by "distorting" state law. See id. at 829. 

The court held that the plaintiff did not establish a 

constitutional violation and noted that "[t]his would be true 

even were planning officials to clearly violate . . . the state 

scheme under which they operate." Id. at 833 (footnote 

omitted). According to the court, the case was an average 

dispute between a property owner and the local zoning 

body and every developer's challenge to a land-use decision 

necessarily involves some claim that the board exceeded or 

abused its legal authority. See id.; see also Anastasio v. 

Planning Bd. of Twp. of W. Orange, 507 A.2d 1194, 1206 

(N.J. Super. Ct. App. Div. 1986) ("Accordingly while the 

words `arbitrary and capricious' may sound harsh, they are 

simply the standard of appellate review in particular 

cases."). 

As in Pace, Sameric has not presented a claim that the 

City acted for reasons "unrelated to land use planning." We 

again note that in undertaking this analysis, we consider 

the action without regard for whether it was sanctioned 

legislatively. See Snowden, 321 U.S. at 11, 64 S.Ct. at 402. 

In Snowden, the plaintiff alleged that the state primary 

election board deprived him of due process and equal 

protection because it refused to certify him as a candidate, 

in violation of state law. See id. at 2-5, 64 S.Ct. at 398-99. 

In Snowden, the Court stated that 

 [i]f the action of the Board is official action it is subject 

 to constitutional infirmity to the same but no greater 

 extent than if the action were taken by the state 

 legislature. Its illegality under the state statute can 

 neither add to nor subtract from its constitutional 

 validity. Mere violation of a state statute does not 

 infringe the federal Constitution. And state action, even 

 though illegal under state law, can be no more and no 

 22 
 less constitutional under the Fourteenth Amendment 

 than if it were sanctioned by the state legislature. 

Id. at 11, 64 S.Ct. at 402 (citations omitted). 

Because our substantive due process analysis does not 

depend on the legality vel non of the City's action under 

state law, our inquiry here is essentially the inquiry in 

which we would engage if the City's ordinance had provided 

explicitly for designation based upon the potential use of a 

building and such an ordinance was challenged on 

substantive due process grounds. In short, the proper 

inquiry is whether the City's decision to designate the Boyd 

Theater based upon its potential use and cultural value if 

converted to live performance space is rationally related to 

land-use planning.11 

We find that it is rationally related to the legitimate 

government objective of land-use planning for the City to 

designate buildings that have potential use to the 

community. We recognize that an ordinance conferring 

such authority would grant broad power to a local board, 

and in so holding we make no comment on the wisdom of 

such a rule, but decide only that we see no reason why 

conferring such authority would be constitutionally infirm 

under substantive due process law. 

As suggested above, Sameric's allegations are very similar 

to those that the Court of Appeals for the First Circuit 

found insufficient in Creative Environments. As did the 

plaintiff in that case, Sameric presents a claim in the 

_________________________________________________________________ 

11. The majority of Sameric's brief on this issue is devoted to arguing 

that the City's action in designating the theater was without factual 

basis and therefore amounts to arbitrary and irrational government 

conduct. Thus, Sameric reviews the "extensive" evidence presented 

against designation to the Historical Commission. 

We recognize that there is evidence to suggest that the Boyd Theater 

is not as architecturally significant as the Designation Committee 

presented. There is also evidence from which a jury could infer that the 

Historical Commission was predisposed to designate the theater. This 

argument, however, focuses on whether there was sufficient evidence to 

support the designation based upon criteria other than the potential 

cultural value of the Boyd if converted to a live performance space. This 

is not the appropriate inquiry here. 

 23 
nature of an average dispute between a property owner and 

local zoning officials. Thus, as we have in the past, we 

emphasize here our reluctance to substitute our judgment 

for that of local decision-makers, particularly in matters of 

such local concern as land-use planning, absent a local 

decision void of a "plausible rational basis." Pace, 808 F.2d 

at 1035. We decline to federalize routine land-use 

decisions. Rather, the validity of land-use decisions by local 

agencies ordinarily should be decided under state law in 

state courts. After all, surely it would be strange to hold 

that the City had no rational basis for designating the 

theater when the Common Pleas Court, the Commonwealth 

Court, and the district court all thought that its designation 

was valid.12 

2. Denial of Demolition Permit 

Sameric also alleges that the City violated its substantive 

due process rights in improperly denying its application for 

a demolition permit, although it does not state this claim 

separately from the claim based on the historic designation. 

Nonetheless, we, like the district court, will treat Sameric's 

allegations regarding the denial of the demolition permit as 

if they asserted a separate factual predicate for a

substantive due process violation. 

a. Ripeness 

The district court granted summary judgment in favor of 

the defendants on the substantive due process claim based 

upon the City's denial of a demolition permit, finding that 

such a claim was not ripe. In particular, the district court 

held that because Sameric did not complete its appeal of 

the denial, there was never a final denial of the permit 

application. We exercise plenary review over the district 

_________________________________________________________________ 

12. Our conclusion does not necessarily mean that Sameric will not 

receive damages by reason of the historic designation of its property as 

it explains in its brief that it "has intervened[in the Common Pleas 

Court] for the purpose of seeking an assessment of damages as a result 

of the decision by the Supreme Court of Pennsylvania" in United Artists' 

II. Of course, we hasten to add our opinion does not depend on whether 

Sameric makes a recovery in the state court. 

 24 
court's ripeness determination. See Taylor, 983 F.2d at 

1289. 

It is well established that, in cases involving land-use 

decisions, a property owner does not have a ripe, 

constitutional claim until the zoning authorities have had 

"an opportunity to `arrive[ ] at afinal, definitive position 

regarding how [they] will apply the regulations at issue to 

the particular land in question.' "13 Id. at 1291 (quoting 

Williamson County Reg'l Planning Comm'n v. Hamilton Bank 

of Johnson City, 473 U.S. 172, 191, 105 S.Ct. 3108, 3119 

(1985)). Thus, we have held that property owners' 

constitutional claims based upon land-use decisions were 

premature where the owners or tenants were denied 

permits by the initial decision-makers but did not avail 

themselves of available, subsequent procedures. See

Acierno v. Mitchell, 6 F.3d 970, 974-75 (3d Cir. 1993) 

(owner was denied building permit by Development and 

Licensing Division, but did not appeal the denial to the 

Board of Adjustment or seek a variance); Taylor, 983 F.2d 

at 1289 (owner complained of the zoning officer's revocation 

of tenant's use permit where the tenant did not reapply, 

appeal to the zoning board, or seek a variance); Midnight 

Sessions, 945 F.2d at 686 (holding that the plaintiff's claim 

was not ripe where it did not appeal the denial of a 

certificate of occupancy to the review board). 

In Acierno and Taylor, the property owners challenged the 

denial and revocation of permits, respectively. In Acierno, 

the county approved the property owner's building plan, of 

which compliance with zoning ordinances is a prerequisite, 

but denied the owner's application for a building permit, 

citing noncompliance with zoning ordinances. See Acierno, 

6 F.3d at 976. In Taylor, the zoning officer revoked a 

tenant's use permit because the tenant included false 

information in his application for the permit. The owner 

asserted that the basis for the revocation was a pretext and 

that the officer knew of the intended use for the property. 

_________________________________________________________________ 

13. We again note that this finality requirement is not at odds with the 

notion that section 1983 claims are not subject to an exhaustion of 

remedies requirement. See Taylor, 983 F.2d at 1291 n.10 (citing 

Williamson, 473 U.S. at 192-94, 105 S.Ct. at 3119-120). 

 25 
See Taylor, 983 F.2d at 1289-90. Thus, in Acierno and 

Taylor the property owners alleged harm resulting from a 

land-use decision adverse to them. 

In both cases, we held that the claims were not ripe 

because the property owners or the tenant did not give the 

locality an opportunity to make a final determination 

regarding how to construe the applicable ordinances and 

apply them to the particular property. The same is true 

here, where Sameric claims that the local land-use decision 

was based on an erroneous application or interpretation of 

the local ordinance. In addition, as in Acierno and Taylor, 

the applicable ordinance explicitly subjects the initial 

decision to review by another body, which owes no 

deference to the initial decision-maker. See Acierno, 6 F.3d 

at 972, 976; Taylor, 983 F.2d at 1292-93. 14 Thus, we find 

that the Department of Licenses' denial was not the City's 

final determination of Sameric's rights to a demolition 

permit under the ordinance. 

Sameric urges that Acierno and Taylor are 

distinguishable, and therefore the ripeness requirement 

should not apply to its claim. According to Sameric, the 

property owners in those cases alleged harm resulting from 

the denial of a permit, whereas Sameric alleges harm 

resulting from the designation itself. We acknowledge that 

Sameric alleges harm resulting from the designation itself, 

but it also alleges that the City improperly denied its 

application for a demolition permit. To the extent Sameric's 

substantive due process claim is based upon the latter, 

Acierno and Taylor apply, rendering that portion of

Sameric's claim not ripe. 

Sameric also contends that Blanche Rd. Corp. v. 

Bensalem Twp., 57 F.3d 253 (3d Cir. 1995), where we

refused to apply the finality requirement, applies here. We 

disagree. In Blanche Rd., we further explained the confines 

of these cases requiring a final decision by the local 

authority regarding a land-use decision. There, the plaintiff 

claimed that the local authority abused its power in a 

conspiracy to halt the development of its property because 

_________________________________________________________________ 

14. We do not imply that our result would have been different if the 

administrative standard of review had been deferential. 

 26 
of the authority's distaste for its plan. After noting that 

Acierno involved a claim based upon the merits of the landuse decision, we found that the property owner's claim in 

Blanche Rd. was substantively different because it was not 

based on the township's adverse decision, but on its 

intentional and improper delay of the process. Inasmuch as 

an improper delay could result in damages notwithstanding 

the ultimate grant of a permit, we declined to apply the 

finality requirement because a review of the permit

decisions was not necessary to resolve the dispute. See id. 

at 267-68. 

In addition, a portion of the owner's claims related to two 

lots to which the owner never exercised its option to 

purchase and for which the owner never sought a building 

permit because it abandoned the development project. We 

held that if the owner's allegations of intentional and 

improper delay were proven, even if the permit ultimately 

were granted, an arbitrary and intentional delay could 

cause damages. See id. at 268. Thus, we found that the 

plaintiff's claims were ripe, even to the extent they were 

based upon damages allegedly suffered with respect to 

these two lots. See id. 

We reject Sameric's argument that Blanche Rd. applies 

here. According to Sameric, the finality requirement should 

not apply because, as in Blanche Rd., a favorable decision 

by the Board of License Review would not have prevented 

Sameric from incurring the damages it now seeks to 

recover. Sameric admits, however, that the grant of the 

permit would have reduced its damages. Accordingly, to the 

extent that Sameric's claims are based upon the City's 

denial of a building permit, they are not ripe. Moreover, an 

ordinary lapse of time required for the processing of an 

appeal from the denial of a permit does not permit a 

plaintiff to recast a case as a delay claim; for if it did the 

ripeness requirement effectively would be eliminated. 

We again stress the importance of the finality 

requirement and our reluctance to allow the courts to 

become super land-use boards of appeals. Land-use 

decisions concern a variety of interests and persons, and 

local authorities are in a better position than the courts to 

assess the burdens and benefits of those varying interests. 

 27 
See Taylor, 983 F.2d at 1291. Judicial review of the City's 

denial of Sameric's application for a demolition permit 

would be inappropriate because it would permit Sameric to 

have denied the City the opportunity to render a final 

decision regarding how to interpret and apply the 

ordinance. See id. at 1292. 

Thus, we find that the district court properly held that 

the claim based upon the denial of the demolition permit 

was not ripe. Ordinarily, because a ripeness determination 

concerns the justiciability of a claim, which the district 

court should resolve on a motion to dismiss rather than on 

a motion for summary judgment, where this courtfinds 

that the district court properly held that the plaintiff's claim 

is not ripe, this court should vacate the grant of summary 

judgment and remand to the district court with instructions 

to dismiss the claim. See Taylor, 983 F.2d at 1290 (citing 

Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 

498, 508 (9th Cir. 1990)); see also Acierno, 6 F.3d at 971. 

Here, however, we see no reason to disturb the grant of the 

summary judgment as Sameric's abandonment of its appeal 

from the denial of the demolition permit after it sold the 

property ensures that its claim based on the denial never 

can be ripe. Thus, in this case Sameric's claim with respect 

to the denial of the demolition permit is not simply 

"premature," see Taylor, 983 F.2d at 1287, rather, it never 

will ripen. We thus would require the parties to waste their 

time if we remanded the case for the district court to 

convert the summary judgment into an order of dismissal. 

b. Statute of Limitations 

Even if this claim were ripe, we would affirm the 

dismissal of Sameric's claim based upon the denial of the 

demolition permit because it is barred by the statute of 

limitations. Although the City apparently raised this 

argument in its motion for summary judgment, the district 

court did not reach this issue in view of its conclusion that 

any claim based upon that denial was not ripe for judicial 

consideration. 

In actions under 42 U.S.C. S 1983, federal courts apply 

the state's statute of limitations for personal injury. See 

 28 
Wilson v. Garcia, 471 U.S. 261, 276-78, 105 S.Ct. 1938, 

1947-48 (1985); 287 Corporate Ctr. Assocs. v. Township of 

Bridgewater, 101 F.3d 320, 323 (3d Cir. 1996). Thus, 

because Pennsylvania's statute of limitations for personal 

injury is two years, see 42 Pa. Cons. Stat. Ann. S 5524 

(West Supp. 1997), Sameric's due process claims are

subject to a two-year statute of limitations. See Smith v. 

City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985). 

A section 1983 cause of action accrues when the plaintiff 

knew or should have known of the injury upon which its 

action is based. See de Botton v. Marple Twp., 689 F. Supp. 

477, 480 (E.D. Pa. 1988). According to the City, the very 

last date that a cause of action based upon the denial of 

the permit could have accrued was in 1988 when Sameric 

abandoned its appeal to the Board of License Review. 

Because Sameric did not institute this suit until 1995, the 

City concludes that the statute of limitations bars this 

action. 

Sameric contends, however, that the "continuing wrong" 

doctrine, which tolls the statute of limitations, renders its 

claim based upon the denial of the demolition permit 

timely. Under this doctrine, a federal cause of action based 

upon the defendant's continuing conduct is timely provided 

that the last act of that continuing conduct is within the 

period for the commencement of an action specified by the 

statute of limitations. See 287 Corporate Ctr. Assocs., 101 

F.3d at 324 (quoting Brenner v. Local 514, United Bhd. of 

Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 

1991)). In applying the doctrine, this court focuses on the 

affirmative acts of the defendant. See id. 

Sameric urges this court to find that its claim was tolled 

by its challenges to the designation of the theater in the 

state court. Sameric bases its argument largely on the 

district court's ruling, from which the City does not appeal, 

regarding the timeliness of its claims. The district court, 

ruling on a motion to dismiss in this case, held that 

Sameric's substantive due process claims based upon the 

designation of the theater were not barred by the statute of 

limitations. See Sameric Corp. of Del., Inc. v. City of 

Philadelphia, Civ. A. No. 95-7057, 1996 WL 47973 (E.D. Pa. 

Feb. 2, 1996). The district court found that the cause of 

 29 
action accrued on April 14, 1987, the date on which the 

Historical Commission officially notified Sameric of the 

designation, but found that the "continuing wrong" doctrine 

tolled the running of the statute of limitations. See id. at *3. 

The district court held that because Sameric was diligent in 

pursuing its claim with respect to the invalidity of the 

designation and the defendants continuously opposed

Sameric's challenges in state court, the doctrine applied. 

Thus, Sameric's complaint, filed on November 8, 1995, was 

timely because it was filed within two years from the end of 

the state court litigation on November 9, 1993. See id. at 

*4. 

We cannot agree that the result is the same here. We 

acknowledge that an historic designation factually underlies 

every cause of action based upon the denial of a demolition 

permit required by the ordinance because a demolition 

permit is only necessary under the ordinance where a 

building has been historically designated. In that sense 

alone a claim based upon a denial of a demolition permit is 

dependent upon the designation. The ordinance establishes 

procedures regarding applications for demolition permits 

separate from those concerning the historic designation of 

a building. Moreover, because the ordinance sets forth 

separate standards for historic designation and for the 

issuance of a demolition permit, the propriety of the City's 

denial of a demolition permit under the ordinance is 

independent from the propriety of the designation itself. 

Thus, a cause of action based upon an improper denial of 

a demolition permit exists regardless of the validity of the 

underlying historic designation. 

Although Sameric diligently objected to the designation of 

the theater in state court, it abandoned its appeal of the 

denial of the demolition permit sometime in 1988 after 

selling the theater to United Artists. In addition, Sameric 

instituted its state court proceedings challenging the 

historic designation of the Boyd Theater prior to the 

Historical Commission's denial of its application for a 

demolition permit.15 Thus, because the two claims are 

_________________________________________________________________ 

15. Sameric instituted its state court challenge to the designation on 

April 24, 1987, see app. 845, and the Historical Commission denied its 

permit application on December 2, 1987. 

 30 
independent, application of the "continuing wrong" 

doctrine, as urged by Sameric, would be inappropriate here 

as its diligence did not relate to pursuing the permit. To the 

contrary, it abandoned its attempt to obtain the permit 

many years before it filed this action. Based upon the 

foregoing, we hold that the "continuing wrong" doctrine 

does not apply to toll the running of the statute of 

limitations with respect to Sameric's claim based upon the 

denial of its permit application. 

B. Pennsylvania Constitutional Claims 

Sameric's complaint also alleges that the defendants' 

conduct deprived it of "the equal protection and[its] rights, 

privileges and immunities" guaranteed under the 

Pennsylvania Constitution. App. 857. The defendants

asserted a governmental immunity defense to these claims 

under the Political Subdivision Tort Claims Act (the"Act"), 

42 Pa. Cons. Stat. Ann. SS 8541-8564 (West 1982 & Supp. 

1997). According to the district court, the individual 

defendants were immune under the Act because they did 

not consider factors outside of their authority. Again, 

although the district court based its analysis upon an 

erroneous interpretation of the ordinance, we affirm its 

conclusion. 

The City is immune from Sameric's claims arising under 

the equal protection and civil rights sections of the 

Pennsylvania Constitution because the Act grants it

immunity from claims for monetary damages except with 

respect to eight specific types of tortious conduct, none of 

which is applicable here. See 42 Pa. Cons. Stat. Ann. 

S 8542(b) (specifying that liability may be imposed upon the 

local agency for damages resulting from the following acts: 

the operation of a motor vehicle; the care or custody of 

personal or real property of others in the possession of the 

agency; dangerous conditions resulting from trees, traffic 

controls or street lighting; dangerous conditions resulting 

from utility service facilities; dangerous condition of streets 

and sidewalks; and the care or custody of animals in the 

possession of the agency); Agresta v. Goode, 797 F. Supp. 

399, 409 (E.D. Pa. 1992). In fact, Sameric conceded during 

the district court proceedings that the Act barred the state 

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constitutional claims asserted against the City. See Sameric 

Corp. of Del., Inc. v. City of Philadelphia, 1997 WL 399374, 

at *7. 

We also find that the individual defendants are immune 

under the Act from Sameric's state constitutional claims. 

Under the Act, individual defendants are immune from 

liability for acts within the scope of their employment to the 

same extent as their employing agency, see 42 Pa. Cons. 

Stat. Ann. S 8545,16 except that they are liable if their 

conduct amounts to actual fraud, crime, actual malice or 

willful misconduct. See 42 Pa. Cons. Stat. Ann. S 8550.17 

"Willful misconduct," as used in section 8550, requires 

evidence that the defendants actually knew that their 

conduct was illegal. See Renk v. City of Pittsburgh, 641 A.2d 

289, 293-94 (Pa. 1994); see also In re City of Philadelphia 

Litig., 938 F. Supp. 1264, 1271 (E.D. Pa. 1996). Because 

there is insufficient evidence that the individual defendants 

actually knew that their conduct was illegal and no

evidence at all that crime, fraud, or malice is implicated 

here, the district court properly granted summary judgment 

in favor of the individual defendants based upon immunity 

under the Act. 

_________________________________________________________________ 

16. Section 8545 states that 

 [a]n employee of a local agency is liable for civil damages on 

account 

 of any injury to a person or property caused by acts of the 

employee 

 which are within the scope of his office or duties only to the same 

 extent as his employing local agency and subject to the limitations 

 imposed by this subchapter. 

42 Pa. Cons. Stat. Ann. S 8545. 

17. Section 8550 states that the immunity, indemnity, and damage 

limitations of the Act do not apply 

 [i]n any action against a local agency or employee thereof for 

 damages on account of an injury caused by the act of the employee 

 in which it is judicially determined that the act of the employee 

 caused the injury and that such act constituted a crime, actual 

 fraud, actual malice or willful misconduct. 

42 Pa. Cons. Stat. Ann. S 8550. 

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IV. CONCLUSION 

For the foregoing reasons, we will affirm the district 

court's grant of summary judgment to the defendants. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 33