### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-10-1998 

# S a me r ic C or p of DE v

. C t y of P hi l a del phi a

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-1615

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" S a me r ic C or p of DE v

. C t y of P hi l a de lp hi a " (1998). 1998 D e cisio n s

. P a pe r 74.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/74Filed 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 Thei r 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, g ranting summary judgment to the City of Philadelphia (the " City")

and various individual defendants. Sameric filed th is action in November 1995 alleging that the City violated it s federal and state constitutional rights by improperly desig nating Sameric's theater as an historic building and subse quently

2denying Sameric a permit to demolish the theater.

Sameric's complaint alleged that, as a result of th e defendants' unlawful designation of the theater and subsequent denial of the demolition permit, its bus iness was injured and it was forced to sell its propertie s, including the theater, at substantially less than f air market

value.

The district court had subject matter jurisdiction over these claims pursuant to 28 U.S.C. SS 1331, 1367. W e have jurisdiction to review the final order of the distr ict 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 whic h administers Philadelphia's Historic Preservation Or dinance (the "ordinance"). The Historical Commission's prim ary obligation is to "[d]esignate as historic those bui ldings, structures, sites and objects which the Commission determines, pursuant to the criteria set forth in S ubsection (5) of [Section 14-2007], are significant to the Ci ty." Phila. Code S 14-2007(4)(a). The ordinance permits the His torical Commission to designate a building1 as historic whe re at

least one of ten enumerated criteria is met.

When a building is proposed for historic designatio n, the Historical Commission prepares a nomination form, w hich begins the process by which the Historical Commissi on considers buildings for designation. The nomination form details information regarding the building's histor ic, architectural, and cultural features. The Designati on Committee of the Historical Commission (the "Design ation Committee") is responsible for selecting which nomi nated

___________________________________________________ ______________

1. We use the term "building" throughout this opini on because this case involves a building. However, our discussion of the designation of a building under the ordinance also encompasses the d esignation of structures, objects, complexes of buildings, and di stricts which, for the most part, are treated equally under the ordinance.

3buildings the Historical Commission will consider f or

historic designation. When the Designation Committe e recommends a building for preservation, it presents its report and recommendation to the Historical Commiss ion at a hearing on the matter.

Pursuant to the ordinance, the owner of a building designated as historic may not demolish or alter th at building without a permit from the Department of Li censes and Inspections ("Department of Licenses"). See Phi la. Code S 14-2007(7)(a). If an owner desires such a permit, it applies to the Department of Licenses, which then f orwards the application to the Historical Commission for re view. An owner may obtain the permit where it is suffering " financial hardship" or the building "cannot be used for any p urpose for which it is or may be reasonably adapted." Phil a. Code S 14-2007(7)(f). The ordinance requires the Departm ent of Licenses to grant the application if the Historical Commission has no objection but to deny the applica tion if the Historical Commission does object. See Phila. C ode S 14-2007(7)(g). Upon the denial of such a permit, the owner may appeal to the Board of License and Inspec tion 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 Com mission began to consider the Boyd Theater as a candidate f or designation as historic in 1984 or 1985 by reason o f

discussions between members of the Historical Commi ssion and the City of Philadelphia Planning Commission.

As a result, a staff employee of the Historical Com mission 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. T he completed nomination form was forwarded to the Designation Committee, which held a meeting to cons ider

___________________________________________________ ______________

2. The theater was also known as the Sameric Theate r.

4the nomination. The Designation Committee decided

unanimously to recommend to the Historical Commissi on 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 the ater. The letter notified Sameric that a hearing was sche duled 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 t he Historical Commission from considering the proposed designation by filing an action in equity in the Co urt of Common Pleas of Philadelphia County seeking a tempo rary restraining order against the Historical Commission . The Court of Common Pleas stayed the Historical Commiss ion's consideration of the proposed designation for 30 da ys. On January 30, 1987, the Historical Commission removed the

suit to the United States District Court for the Ea stern District of Pennsylvania on the grounds that some o f the

claims arose under the Constitution. The district c ourt 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 com plaint, the Historical Commission held a hearing on March 2 5, 1987, to consider the proposed designation of the B oyd Theater as historic. At the hearing, Commissioner D avid Brownlee, a member of the Designation Committee, presented the committee's recommendation and report

. Although, during the hearing, Sameric's counsel rep eatedly asked the Historical Commission to postpone the vot e so

___________________________________________________ ______________

3. The district court held that Sameric was not ent itled to a preliminary injunction to prevent the Historical Commission fro m considering the designation of the theater because Sameric was not subject to an immediate threat. According to the court, the conve ning of a hearing did not in itself pose a threat to Sameric. Further, th e court found that the potential designation would not harm Sameric, as on ly the subsequent denial of a permit required by virtue of the design ation would pose a

threat to Sameric.

5that Sameric could present evidence, the Historical

Committee voted to designate the Boyd Theater as hi storic, with only Commissioner John Street dissenting.

Later that day, Sameric requested the Court of Comm on Pleas to vacate the Historical Commission's decisio n and reschedule the hearing because the Commission did n ot 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 or dered

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. Cou nty Mar. 25, 1987).

The Commission held the second hearing on April 2, 1987. At this hearing, Commissioner Brownlee again presented the Designation Committee's recommendatio n for designation and described the theater as a superb e xample of art deco. The Commissioner then presented a slid e show detailing particular features of the theater, both interior and exterior. The Designation Committee's report emphasized that the building was an authentic examp le of art deco and that the building was "almost complete ly intact both on the interior and exterior." App. 54- 55.

The president of Sameric, Merton Shapiro, then test ified that many of the features which the Designation Com mittee emphasized, such as the ticket booth, entrancewayfl oor, glass doors to the main lobby, mirrors, and the lob by ceiling, were not original. Shapiro presented slide s of the building which illustrated the original appearance of the theater, both exterior and interior, and narrated t he presentation, pointing out all the changes that he and others had made to the appearance of the theater. A pp. 163-69. Upon the completion of Shapiro's presentati on, Richard Tyler, the Executive Director of the Histor ical Commission, acknowledged that Shapiro's presentatio n showed that there had been substantial changes to t he appearance of the theater. Tyler also urged the Com mission members to consider this evidence. App. 192.

The Historical Commission also heard testimony on behalf of Sameric from a partner of an architectura lfirm

6regarding the authenticity of the Boyd Theater's ar t deco

style. App. 183-87. According to the architect, the theater was not an architecturally notable building in eith er its original or present form. App. 184. In addition, th e architect testified that of the 18 criteria enumera ted in a scholarly treatise which identify the art deco styl e, the remaining portion of the Boyd Theater's original fa cade included only five. App. 184.

At the close of the evidence, the Historical Commis sion again voted to designate the Boyd Theater as histor ic, with only Commissioner Street again voting against the designation.

C. The State Court Proceedings

Following the designation of the Boyd Theater as hi storic, on April 24, 1987, Sameric filed a complaint in equ ity in the Court of Common Pleas in Philadelphia County ag ainst the City challenging the designation of the theater . The parties agreed that Sameric's suit should be constr ued as an appeal from the decision of a local agency pursu ant to 2 Pa. Cons. Stat. Ann. S 752 (West 1995). See Samer ic 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 Co urt affirmed, holding that the evidence regarding the e xterior was sufficient to support the designation and that the designation of the interior was within the authorit y of the

ordinance. See id. at 156-57.

On appeal, the Supreme Court of Pennsylvania origin ally held that the historic designation of the Boyd Thea ter amounted to a taking without just compensation in violation of Article I, Section 10, of the Pennsylv ania Constitution. See United Artists Theater Circuit, I nc. 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 s tating

___________________________________________________ ______________

4. Because Sameric sold its assets to United Artist s in April 1988, the appellant was changed from Sameric to United Artist s while the case was on appeal to the Supreme Court of Pennsylvania.

7that the designation was improper under the ordinan ce

because it was based on the interior of the buildin g; thus, he found it unnecessary and imprudent to reach the state constitutional issue. See id. at 28 (Cappy, J., con curring).

The Supreme Court of Pennsylvania later granted rehearing and reconsidered the appeal. On rehearing , the court held that designating a privately owned build ing as historic did not automatically constitute an unconstitutional taking. See United Artists' Theate r Circuit, Inc. v. City of Philadelphia, 635 A.2d 612, 620 (Pa . 1993) (hereinafter "United Artists' II"). However, the co urt also found that the ordinance does not permit designatio n based upon a building's interior, and therefore, the Hist orical Commission improperly designated the Boyd Theater t o the extent the designation was based upon its interior. See id. at 622. Because the court found it impossible to se parate

the evidence so as to decide whether there was suff icient evidence based only on the exterior of the theater to support its designation, the court vacated the Hist orical Commission's designation of the Boyd Theater. See i d.

Insofar as we are aware, the Commission has not redesignated the building as historic. While the co urt in United Artists' II did not in its opinion remand th e case to the Common Pleas Court, according to Sameric it is seeking damages in the Common Pleas Court attributable to t he 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 permi t for the theater, which was transferred immediately to the H istorical Commission for review. On April 9, 1987, the Archit ectural

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 m eetings, the Historical Commission considered evidence and, on December 2, 1987, it voted to deny Sameric's applic ation for a demolition permit. On February 2, 1988, the H istorical

8Commission issued its Findings of Fact and Decision

.

Pursuant to the ordinance, the Department of Licens es denied the permit based upon the Historical Commiss ion's objection to it. See Phila. Code S 14-2007(7)(g).

On December 15, 1987, Sameric appealed the denial o f its application for a demolition permit to the Boar d of License Review. In April 1988, Sameric sold all of its theaters, including the Boyd, to United Artists The ater 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 prope rty, Sameric abandoned its appeal of the denial of the p ermit. Thus, the Board of License Review never concluded i ts hearings or rendered a decision on Sameric's appeal

.

E. The District Court Proceedings

In November 1995, Sameric instituted this suit in t he

United States District Court for the Eastern Distri ct of Pennsylvania against the City, the Historical Commi ssion,

and various individual defendants who were the Exec utive

Director and Commissioners of the Historical Commis sion, in their individual and official capacities. Conseq uently, in the course of this opinion, depending upon our cont ext, our references to the City may include all of the defen dants. Sameric's complaint asserted claims pursuant to 42 U.S.C.

S 1983 for violations of its federal substantive an d procedural due process rights as well as a civil co nspiracy 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 as serts that its business was injured and that its property was reduced in value. In particular, Sameric alleges th at beginning in late 1986, after the commencement of t he designation proceedings, it was unable to obtainfin ancing because the proposed designation of the theater wou ld reduce the value of the property significantly. Thu s, beginning in 1987, Sameric no longer could afford t o obtain quality films for its theaters. Sameric contends th at ultimately it was forced to sell its entire holding s because

9of its financial difficulties, and because of the h istoric

designation it received substantially less than fai r market

value for the theater.

The district court dismissed Sameric's procedural d ue process claim in February 1996, but Sameric does no t appeal from this dismissal.5 At the close of discov ery, on July 14, 1997, the district court granted the defen dants' motion for summary judgment on the remainder of Sameric's claims. First, in an order from which Sam eric does not appeal, the district court dismissed all c laims against the Historical Commission because Sameric conceded that it was not a proper defendant. See Sa meric 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 particula r, 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 designati ng the Boyd Theater as historic; (2) the claims based upon the City's subsequent denial of Sameric's application f or a demolition permit were not ripe; and (3) the indivi dual defendants were entitled to immunity with respect t o both the federal claims and those arising under the Penn sylvania Constitution. Sameric filed a timely notice of appe al from

this order.

___________________________________________________ ______________

5. The district court dismissed Sameric's procedura l 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, a t *4 (E.D. Pa. Feb. 2, 1996). The district court held that Pennsylvania provided a judicial mechanism permitting Sameric to challenge the desig nation of the Boyd Theater. See id. In particular, the district court noted that the parties agreed that the state court action should be treate d as an appeal of the designation. See id.

10III. DISCUSSION

A. Substantive Due Process

Sameric's complaint asserts a 42 U.S.C. S 1983 clai m that the Historical Commission's designation of the Boyd Theater as historic and its subsequent denial of th e demolition permit violated Sameric's substantive du e process rights. According to Sameric, the defendant s, in taking these actions, were motivated by the ultra v ires purpose of obtaining a venue for live performances and, notwithstanding this purpose, they acted without fa ctual 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 p otential as a performance space and that Sameric therefore f ailed to establish that there was a genuine issue of materia l fact that the defendants acted either with an improper m otive 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 affi rm 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 in terpretation of the

ordinance. Given our conclusion that Sameric has no t established a violation of a constitutional right, we need not co nsider the immunity issue. See Siegert v. Gilley, 500 U.S. 226, 232, 11 1 S.Ct. 1789, 1793 (1991) (stating that in considering whether a defen dant is entitled to qualified immunity, a court first should consider w hether 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 i mmunity to members

of local boards to allow them to make decisions wit hout 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. P lanning Bd. of Twp. of W. Orange, 507 A.2d 1194, 1208 (N.J. Super. Ct. App . Div. 1986)).

11matter 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. Darlin gDelaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). An issue is "genuine" if the evidence permits a reasonable j ury to return a verdict for the non-moving party, acceptin g its evidence as true and drawing all justifiable infere nces from the evidence in its favor. See Anderson, 477 U.S. a t 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 viola tions of constitutional rights. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432 (1985) (plu rality 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 compla ined of was committed by a person acting under color of sta te law7 and (2) whether the conduct deprived the complainan t of rights secured under the Constitution or federal la w. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 22 54-55 (1988); Mark v. Borough of Hatboro, 51 F.3d 1137, 1 141 (3d Cir. 1995).

To establish a substantive due process claim, a pla intiff must prove that it was deprived of a protected prop erty interest by arbitrary or capricious government acti on. See Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 128 5, 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 proces s, the only issue on this point is whether the City unconstitutionally deprived Sameric of that interes t. 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 a re "persons" acting under color of state law. The City is subject to se ction 1983 liability

for injuries caused by its official policies and custom s, 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, o ne of its agencies, constitute such official policies, see Pembaur v. C ity of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298 (1986).

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

Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d C ir. 1993) (quoting Midnight Sessions, Ltd. v. City of Philade lphia, 945 F.2d 667, 683 (3d Cir. 1991)); see also Independent Enters., Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 11 65, 1179 (3d Cir. 1997) (government's deliberate and ar bitrary abuse of authority violates substantive due process ); Bello v. Walker, 840 F.2d 1124, 1129-30 (3d Cir. 1988) (s ame). The former inquiry is a question of law for the cou rt 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 T heater based on its desire to procure live performance spa ce, a consideration not within its authority under the or dinance, which thus was an improper motive. However, because the district court construed the ordinance to permit hi storic designation based on that consideration, the distri ct court found that Sameric failed to establish a genuine is sue as to whether the City acted with an improper motive. Sam eric

contends that the district court erred in its inter pretation of

the ordinance and therefore concludes that the dist rict court erred in granting summary judgment because it based its determination upon an erroneous interpret ation of the ordinance. Although we agree that the district court erred in its interpretation of the ordinance and it s analysis of the allegedly improper purpose thereby is flawed , we will affirm the grant of summary judgment for the follow ing

reasons.

Our disposition of this issue involves three inquir ies: (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 presente d

evidence which creates an issue of fact as to wheth er the Commission was motivated by such considerations; an d (3) whether the Commission acted with an "improper purp ose"

13under substantive due process principles in conside ring

criteria unauthorized under state law. We will disc uss these inquiries in turn.

Under the ordinance, a building may be designated a s historic if it:

(a) Has significant character, interest or v alue as part of the development, heritage or cultural cha racteristics of the City, Commonwealth or Nation or is as sociated with the life a person significant in the pa st; or

(b) Is associated with an event of importanc e to the history of the City, Commonwealth or Nation; or,

(c) Reflects the environment in an era chara cterized 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, la ndscape architect or designer, or engineer whose wor k has significantly influenced the historical, arc hitectural, economic, social, or cultural development of the City, Commonwealth or Nation; or,

(f) Contains elements of design, detail, mat erials 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 a ccording to an historic, cultural or architectural motif ; or,

(h) Owing to its unique location or singular physical characteristic, represents an established an d familiar visual feature of the neighborhood, communit y 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, eco nomic, social or historical heritage of the community.

Phila. Code S 14-2007(5). In addition, the ordinanc e announces the following purposes:

14(.1) preserve buildings, structures, sites a nd objects

which are important to the education, cultur e, traditions and economic values of the City;

. . .

(.5) strengthen the economy of the City by e nhancing 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 thefi rst 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 preservi ng a theater of this size." Sameric Corp. of Del., Inc. v. City of Philadelphia, 1997 WL 399374, at *4. Thus, the cour t found

that to the extent the Commission based its decisio n upon economic and cultural interests, it acted permissib ly 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 a s a performance venue." Id.

We agree with the district court to the extent that it found that the ordinance permits consideration of c ultural and economic factors. The plain language of the ord inance clearly refers to such considerations, see Phila. C ode S 14- 2007(1)(b)(.1) & (.5), and the ordinance declares a broad public policy to preserve the "historic, architectu ral, cultural, [and] aesthetic" merit of buildings. See Phila. Code S 14-2007(1)(a). In addition, the ordinance require s that the Historical Commission be composed of individuals wi th 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 or dinance permits designation based upon the potential value of the theater if converted to a live performance venue.

___________________________________________________ ______________

8. The ordinance requires that the Historical Commi ssion be composed, inter alia, of the Director of Commerce, the Chairm an of the City Planning Commission, a real estate developer, a rep resentative from a community development corporation, and a representa tive from a community organization.

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

exercised by administrative commissions must be con ferred by legislative language clear and unmistakable. A d oubtful 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)). Be cause we find that the plain language of the ordinance do es not confer clear and unmistakable authority to designat e a building based upon its potential, future cultural value, we hold that the Historical Commission does not posses s 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. M ore importantly, the criteria enumerated in the ordinan ce conspicuously and consistently refer to the value o f a building in the present tense. In particular, thefi rst enumerated criterion for historic designation, upon which the City primarily relies, allows designation where the building "has significant . . . value as part of th e development . . . of the City." Phila. Code S 14-20 07(5)(a). The City argues that this criterion encompasses a designation where, as here, the Historical Commissi on 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 bui lding,

which is on its face limited to a consideration of the present condition of a building. The ordinance clearly perm its the

Historical Commission to consider the future in onl y one instance, which is not applicable here -- the possi bility that a building will yield important information. See Ph ila. Code S 14-2007(5)(i). Thus, the ordinance does not clear ly permit the Historical Commission to consider potential use s 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 procee dings in

16this dispute, culminating in a decision by that cou rt, have

generated the only published judicial interpretatio n of this ordinance. It is axiomatic that the highest court o f 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, 1 83 (1940). Thus, although the Pennsylvania Supreme Cou rt has not addressed the precise issue which we now consider, we give great weight to its interpretatio n of this

ordinance in United Artists' II. We find that the d istrict court's interpretation is inconsistent with the Pen nsylvania Supreme Court's interpretation of the ordinance, na mely 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 H istorical Commission is not explicitly authorized by statute to designate the interior of the building as historica lly or aesthetically significant." United Artists' II, 635 A.2d at 622. The court began its analysis by noting the "clear a nd unmistakable" language standard in Pennsylvania

administrative law. See id. The court then turned t o the language of the ordinance and found that the only r eference to the interior of the building in Phila. Code S 14 -2007 is in the subsection which imposes upon the owner of a hi storic building the duty of care. See id. Because the lang uage in that section concerns the interior only for the exp ress 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 hist oric designation based upon an historic or aesthetic fea ture of the interior of a building, it necessarily does not permit designation based upon the cultural value or potent ial uses of the interior. This conclusion, in addition to ou r own

___________________________________________________ ______________

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

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

of every building, structure and object located within an historic district shall be kept in good repair as sha ll the interior portions of such buildings, structures and objects, negl ect of which may cause

or tend to cause the exterior to deteriorate , decay, become damaged or otherwise fall into a state of disrepair.

17interpretation of the plain language of the ordinan ce, leads

us to the determination that the district court err ed in its interpretation of the ordinance. This determination

, however, does not end our inquiry. We also must con sider whether Sameric established a genuine issue as to w hether the Historical Commission was motivated by such a consideration, and, if such an issue exists, whethe r, 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 tha t it has produced evidence which creates a genuine issue of fact regarding the motivation of the Historical Com mission in voting to designate the Boyd Theater. In her com ments at the designation hearing and her deposition testi mony, Commissioner Kaplan expressed her interest in the t heater as cultural space, admitted that she considered pot ential 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 genuin e issue

of fact as to the board's motive. See DeBlasio v. Z oning Bd. of Adjustment for the Twp. of W. Amwell, 53 F.3d 59 2, 602 (3d Cir. 1995) (evidence that one member of the zon ing board acted for personal reasons was sufficient to create a genuine issue as to whether the board's decision wa s influenced by that member's personal interest, and thus acted with an improper motive). Thus, given the evi dence 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 c ultural value as performance space.

However, only issues of material fact preclude entr y of summary judgment. As the Supreme Court has stated, "[o]nly disputes over facts that might affect the o utcome of the suit under the governing law will properly prec lude the entry of summary judgment. Factual disputes that ar e irrelevant or unnecessary will not be counted." And erson, 477 U.S. at 248, 106 S.Ct. at 2510. Because this mo tive is

18not improper under substantive due process law, thi s issue

of fact is not material, and summary judgment was p roper.

On this issue, at the outset we note that Sameric h as not established, or for that matter even alleged, that the Historical Commission's decision to designate the b uilding was motivated by personal gain, individuous discrim inatory intent, or partisan political considerations, the p resence of which we have found establish substantive due proce ss claims based upon improper motive. See, e.g., DeBla sio, 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. 19 96) (alleging that the defendants were motivated by par tisan politics in designating an area as historic as they intended to thwart plaintiffs' development project so that t he mayor would not receive credit for the resulting economic benefits).

Rather, Sameric proffers that the City's improper m otive was its ultra vires reliance on procuring live perf ormance space for the community. As discussed above, we fin d that the City did exceed its authority to the extent tha t it based its decision upon such a motivation. This error, ho wever, is only one of law, and such an error is not sufficien t in itself to establish a substantive due process claim. See S nowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 402 (1944) ; Midnight Sessions, 945 F.2d at 684 (stating that fe deral 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) (h olding

that a violation of state law does not amount to a violation of due process).

We recognize that, to prove a substantive due proce ss claim, a plaintiff need not establish in every case that the defendants sought to advance personal interests. Se e 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 allege d 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 th e

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

its actions were in furtherance of the public safet y to avoid the imminent collapse of the plaintiff's parking ga rage, the plaintiff presented evidence that this alleged moti vation was a pretext. See id. at 693-94. Rather, according to the plaintiff, the City was motivated economically beca use 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 driv en by the economic benefit to the City, such a motivation wou ld 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 inv olved in the case. Taken in the light most favorable to S americ, the evidence supports an inference that the Histori cal Commission considered the potential uses of the Boy d Theater, which the Commission believed could fill a void in the community. There is not sufficient evidence, ho wever, that the City was in a position to realize the type of direct economic gain alleged in Parkway Garage. Thus, we f ind that Sameric has not produced evidence of an "impro per motive."10

b. Arbitrary and Irrational Government Action

As an independent basis for its substantive due pro cess claim, Sameric also alleges that the City acted arb itrarily and irrationally in designating the Boyd Theater. R elying again on its interpretation of the ordinance, the d istrict court concluded that because a designation as histo ric may be based upon its "significant interest or value to the

___________________________________________________ ______________

10. Our conclusion that summary judgment was approp riate in this case

is not at odds with the notion that the determinati on of whether defendants were motivated by bias, personal interes t, 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. H ere, we conclude that the particular motive which Sameric alleged is not improper as a

matter of law.

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

of Philadelphia, 1997 WL 399374, at *5, Sameric did not present evidence which creates a genuine issue of f act that the defendants lacked a rational basis for designat ing the Boyd Theater as historic. Sameric contends that bec ause the district court based its holding on a misinterp retation of state law, we should reverse the grant of summary judgment. Again, although we agree that the distric t court erred in its interpretation of the ordinance, we fi nd that Sameric has not produced sufficient evidence from w hich a jury could find arbitrary and irrational government

conduct.

We have held that, in the context of a land-use dec ision, "the deliberate and arbitrary abuse of government p ower violates an individual's right to substantive due p rocess." Bello, 840 F.2d at 1129 (declining to define the "o uter limits of the showing necessary to demonstrate" arbitrary and irrational governmental action because the plaintif f adduced evidence that the decision was based upon "partisan political or personal reasons unrelated t o the merits of the application for the permits"); see al so DeBlasio, 53 F.3d at 601. Government conduct is arb itrary and irrational where it is not rationally related t o a legitimate government purpose. See Parkway Garage, 5 F.3d at 692; Midnight Sessions, 945 F.2d at 692; Pa ce Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1035 (3d Cir. 1987).

Our review of a locality's land-use decision asks w hether the locality "could have had a legitimate reason fo r its decision." Pace, 808 F.2d at 1034, 1035 (citing She lton v. City of College Station, 780 F.2d 475, 483 (5th Cir . 1986) (en banc) (holding that "federal judicial interfere nce with a state zoning board's quasi-legislative decisions, l ike invalidation of legislation for `irrationality' or `arbitrariness,' is proper only if the governmental body could have no legitimate reason for its decision")). Thus, in Pac e, we found that summary judgment for the defendant was appropr iate because the township "could have had rational reaso ns for" its land-use decision relating to the property owne r's development plan "and because th[e] complaint alleg e[d] no facts suggesting arbitrariness." Id. at 1036. In ho lding that

21the plaintiff in Pace did not allege sufficiently a substantive

due process violation, we also noted that it did"no t present a case involving actions aimed at this developer fo r reasons unrelated to land use planning." Id. at 1035.

In Pace, we cited with approval Creative Environmen ts, Inc. v. Estabrook, 680 F.2d 822 (1st Cir. 1982), wh ich we again find persuasive. In Creative Environments, th e plaintiff alleged that the town frustrated the plai ntiff'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 wou ld be true even were planning officials to clearly violate . . . the state scheme under which they operate." Id. at 833 (footn ote omitted). According to the court, the case was an a verage dispute between a property owner and the local zoni ng body and every developer's challenge to a land-use decision necessarily involves some claim that the board exce eded or abused its legal authority. See id.; see also Anast asio v. Planning Bd. of Twp. of W. Orange, 507 A.2d 1194, 1 206 (N.J. Super. Ct. App. Div. 1986) ("Accordingly whil e the words `arbitrary and capricious' may sound harsh, t hey are simply the standard of appellate review in particul ar cases.").

As in Pace, Sameric has not presented a claim that the City acted for reasons "unrelated to land use plann ing." We again note that in undertaking this analysis, we co nsider the action without regard for whether it was sancti oned legislatively. See Snowden, 321 U.S. at 11, 64 S.Ct . at 402. In Snowden, the plaintiff alleged that the state pr imary election board deprived him of due process and equa l protection because it refused to certify him as a c andidate, 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 act ion 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 constit utional 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 mo re and no

22less constitutional under the Fourteenth Ame ndment

than if it were sanctioned by the state legi slature.

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

Because our substantive due process analysis does n ot depend on the legality vel non of the City's action under state law, our inquiry here is essentially the inqu iry in which we would engage if the City's ordinance had p rovided 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 prop er inquiry is whether the City's decision to designate the Boyd Theater based upon its potential use and cultural v alue if converted to live performance space is rationally r elated to land-use planning.11

We find that it is rationally related to the legiti mate government objective of land-use planning for the C ity to designate buildings that have potential use to the community. We recognize that an ordinance conferrin g such authority would grant broad power to a local b oard, 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 Ci rcuit

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 i s devoted to arguing that the City's action in designating the theater w as without factual basis and therefore amounts to arbitrary and irrati onal government conduct. Thus, Sameric reviews the "extensive" evid ence 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 Design ation 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 suf ficient evidence to support the designation based upon criteria other t han the potential cultural value of the Boyd if converted to a live p erformance space. This is not the appropriate inquiry here.

23nature of an average dispute between a property own er and

local zoning officials. Thus, as we have in the pas t, we emphasize here our reluctance to substitute our jud gment for that of local decision-makers, particularly in matters of such local concern as land-use planning, absent a l ocal 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 decisio ns by local agencies ordinarily should be decided under state l aw 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 Commonweal th 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 sub stantive due process rights in improperly denying its applic ation for a demolition permit, although it does not state thi s claim separately from the claim based on the historic des ignation. Nonetheless, we, like the district court, will trea t 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 favo r of the defendants on the substantive due process claim based upon the City's denial of a demolition permit, find ing that such a claim was not ripe. In particular, the distr ict court held that because Sameric did not complete its appe al of the denial, there was never a final denial of the p ermit application. We exercise plenary review over the di strict

___________________________________________________ ______________

12. Our conclusion does not necessarily mean that S americ will not receive damages by reason of the historic designati on 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 Pennsylvani a" in United Artists' II. Of course, we hasten to add our opinion does no t depend on whether Sameric makes a recovery in the state court.

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

1289.

It is well established that, in cases involving lan d-use decisions, a property owner does not have a ripe, constitutional claim until the zoning authorities h ave 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. 19 93) (owner was denied building permit by Development an d Licensing Division, but did not appeal the denial t o the Board of Adjustment or seek a variance); Taylor, 98 3 F.2d at 1289 (owner complained of the zoning officer's r evocation of tenant's use permit where the tenant did not rea pply, appeal to the zoning board, or seek a variance); Mi dnight Sessions, 945 F.2d at 686 (holding that the plainti ff'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 challeng ed the denial and revocation of permits, respectively. In Acierno, the county approved the property owner's building p lan, of which compliance with zoning ordinances is a prereq uisite, but denied the owner's application for a building p ermit, citing noncompliance with zoning ordinances. See Ac ierno, 6 F.3d at 976. In Taylor, the zoning officer revoke d a tenant's use permit because the tenant included fal se information in his application for the permit. The owner asserted that the basis for the revocation was a pr etext and that the officer knew of the intended use for the p roperty.

___________________________________________________ ______________

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 3119-1 20).

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

Taylor the property owners alleged harm resulting f rom a land-use decision adverse to them.

In both cases, we held that the claims were not rip e because the property owners or the tenant did not g ive the locality an opportunity to make a final determinati on 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 interpreta tion of the local ordinance. In addition, as in Acierno and Taylor, the applicable ordinance explicitly subjects the in itial decision to review by another body, which owes no

deference to the initial decision-maker. See Aciern o, 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 demoli tion permit under the ordinance.

Sameric urges that Acierno and Taylor are distinguishable, and therefore the ripeness require ment should not apply to its claim. According to Sameric , the property owners in those cases alleged harm resulti ng from the denial of a permit, whereas Sameric alleges har m resulting from the designation itself. We acknowled ge 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 lat ter, 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 lo cal authority regarding a land-use decision. There, the plaintiff claimed that the local authority abused its power i n 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 deferent ial.

26of the authority's distaste for its plan. After not ing that

Acierno involved a claim based upon the merits of t he landuse decision, we found that the property owner's cl aim in Blanche Rd. was substantively different because it was not based on the township's adverse decision, but on it s intentional and improper delay of the process. Inas much as an improper delay could result in damages notwithst anding the ultimate grant of a permit, we declined to appl y 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 relate d to two lots to which the owner never exercised its option to purchase and for which the owner never sought a bui lding 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 ulti mately were granted, an arbitrary and intentional delay co uld cause damages. See id. at 268. Thus, we found that the plaintiff's claims were ripe, even to the extent th ey were based upon damages allegedly suffered with respect to

these two lots. See id.

We reject Sameric's argument that Blanche Rd. appli es here. According to Sameric, the finality requiremen t should not apply because, as in Blanche Rd., a favorable d ecision by the Board of License Review would not have preve nted 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 Cit y's denial of a building permit, they are not ripe. Mor eover, 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 eliminate d.

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 person s, and local authorities are in a better position than the courts to assess the burdens and benefits of those varying in terests.

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

denial of Sameric's application for a demolition pe rmit would be inappropriate because it would permit Same ric to have denied the City the opportunity to render a fi nal 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 p ermit was not ripe. Ordinarily, because a ripeness determ ination concerns the justiciability of a claim, which the d istrict

court should resolve on a motion to dismiss rather than on a motion for summary judgment, where this courtfind s that the district court properly held that the plai ntiff's claim is not ripe, this court should vacate the grant of summary judgment and remand to the district court with inst ructions to dismiss the claim. See Taylor, 983 F.2d at 1290 (citing Southern Pac. Transp. Co. v. City of Los Angeles, 9 22 F.2d 498, 508 (9th Cir. 1990)); see also Acierno, 6 F.3d at 971. Here, however, we see no reason to disturb the gran t of the summary judgment as Sameric's abandonment of its ap peal from the denial of the demolition permit after it s old the property ensures that its claim based on the denial never can be ripe. Thus, in this case Sameric's claim wit h respect to the denial of the demolition permit is not simpl y "premature," see Taylor, 983 F.2d at 1287, rather, it never will ripen. We thus would require the parties to wa ste their

time if we remanded the case for the district court to convert the summary judgment into an order of dismi ssal.

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 statu te of limitations. Although the City apparently raised th is argument in its motion for summary judgment, the di strict

court did not reach this issue in view of its concl usion that any claim based upon that denial was not ripe for j udicial

consideration.

In actions under 42 U.S.C. S 1983, federal courts a pply the state's statute of limitations for personal inj ury. See

28Wilson v. Garcia, 471 U.S. 261, 276-78, 105 S.Ct. 1 938,

1947-48 (1985); 287 Corporate Ctr. Assocs. v. Towns hip of Bridgewater, 101 F.3d 320, 323 (3d Cir. 1996). Thus

, because Pennsylvania's statute of limitations for p ersonal 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 S mith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985 ).

A section 1983 cause of action accrues when the pla intiff 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, th e very last date that a cause of action based upon the den ial of the permit could have accrued was in 1988 when Same ric abandoned its appeal to the Board of License Review

. Because Sameric did not institute this suit until 1 995, the City concludes that the statute of limitations bars this

action.

Sameric contends, however, that the "continuing wro ng" doctrine, which tolls the statute of limitations, r enders its claim based upon the denial of the demolition permi t timely. Under this doctrine, a federal cause of act ion based upon the defendant's continuing conduct is timely p rovided that the last act of that continuing conduct is wit hin the period for the commencement of an action specified by the statute of limitations. See 287 Corporate Ctr. Asso cs., 101 F.3d at 324 (quoting Brenner v. Local 514, United B hd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3 d Cir. 1991)). In applying the doctrine, this court focuse s 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 n ot appeal, regarding the timeliness of its claims. The distric t court, ruling on a motion to dismiss in this case, held th at Sameric's substantive due process claims based upon the designation of the theater were not barred by the s tatute of limitations. See Sameric Corp. of Del., Inc. v. Cit y of Philadelphia, Civ. A. No. 95-7057, 1996 WL 47973 (E .D. Pa. Feb. 2, 1996). The district court found that the ca use of

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

Historical Commission officially notified Sameric o f the designation, but found that the "continuing wrong" doctrine tolled the running of the statute of limitations. S ee id. at *3.

The district court held that because Sameric was di ligent in pursuing its claim with respect to the invalidity o f the designation and the defendants continuously opposed Sameric's challenges in state court, the doctrine a pplied. Thus, Sameric's complaint, filed on November 8, 199 5, was timely because it was filed within two years from t he end of the state court litigation on November 9, 1993. See id. at

*4.

We cannot agree that the result is the same here. W e acknowledge that an historic designation factually underlies every cause of action based upon the denial of a de molition permit required by the ordinance because a demoliti on 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 p ermit is dependent upon the designation. The ordinance estab lishes procedures regarding applications for demolition pe rmits separate from those concerning the historic designa tion of a building. Moreover, because the ordinance sets fo rth separate standards for historic designation and for the issuance of a demolition permit, the propriety of t he City's denial of a demolition permit under the ordinance i s independent from the propriety of the designation i tself. Thus, a cause of action based upon an improper deni al of a demolition permit exists regardless of the validi ty of the underlying historic designation.

Although Sameric diligently objected to the designa tion of the theater in state court, it abandoned its appeal of the denial of the demolition permit sometime in 1988 af ter selling the theater to United Artists. In addition, Sameric instituted its state court proceedings challenging the historic designation of the Boyd Theater prior to t he Historical Commission's denial of its application f or a demolition permit.15 Thus, because the two claims a re

___________________________________________________ ______________

15. Sameric instituted its state court challenge to the designation on April 24, 1987, see app. 845, and the Historical Co mmission denied its permit application on December 2, 1987.

30independent, application of the "continuing wrong"

doctrine, as urged by Sameric, would be inappropria te here as its diligence did not relate to pursuing the per mit. To the contrary, it abandoned its attempt to obtain the pe rmit many years before it filed this action. Based upon the foregoing, we hold that the "continuing wrong" doct rine does not apply to toll the running of the statute o f limitations with respect to Sameric's claim based u pon the denial of its permit application.

B. Pennsylvania Constitutional Claims

Sameric's complaint also alleges that the defendant s' conduct deprived it of "the equal protection and[it s] rights, privileges and immunities" guaranteed under the Pennsylvania Constitution. App. 857. The defendants asserted a governmental immunity defense to these c laims under the Political Subdivision Tort Claims Act (th e"Act"), 42 Pa. Cons. Stat. Ann. SS 8541-8564 (West 1982 & S upp. 1997). According to the district court, the individ ual defendants were immune under the Act because they d id not consider factors outside of their authority. Ag ain, although the district court based its analysis upon an erroneous interpretation of the ordinance, we affir m its

conclusion.

The City is immune from Sameric's claims arising un der the equal protection and civil rights sections of t he Pennsylvania Constitution because the Act grants it immunity from claims for monetary damages except wi th respect to eight specific types of tortious conduct , none of which is applicable here. See 42 Pa. Cons. Stat. An n. S 8542(b) (specifying that liability may be imposed upon the local agency for damages resulting from the followi ng acts: the operation of a motor vehicle; the care or custo dy of personal or real property of others in the possessi on of the agency; dangerous conditions resulting from trees, traffic controls or street lighting; dangerous conditions r esulting from utility service facilities; dangerous conditio n of streets and sidewalks; and the care or custody of animals i n 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

31constitutional claims asserted against the City. Se e Sameric

Corp. of Del., Inc. v. City of Philadelphia, 1997 W L 399374,

at *7.

We also find that the individual defendants are imm une under the Act from Sameric's state constitutional c laims. Under the Act, individual defendants are immune fro m liability for acts within the scope of their employ ment to the same extent as their employing agency, see 42 Pa. C ons. Stat. Ann. S 8545,16 except that they are liable if their conduct amounts to actual fraud, crime, actual mali ce or willful misconduct. See 42 Pa. Cons. Stat. Ann. S 8 550.17 "Willful misconduct," as used in section 8550, requ ires evidence that the defendants actually knew that the ir conduct was illegal. See Renk v. City of Pittsburgh , 641 A.2d 289, 293-94 (Pa. 1994); see also In re City of Phil adelphia Litig., 938 F. Supp. 1264, 1271 (E.D. Pa. 1996). Be cause 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 imp licated here, the district court properly granted summary j udgment in favor of the individual defendants based upon im munity

under the Act.

___________________________________________________ ______________

16. Section 8545 states that

[a]n employee of a local agency is liable fo r 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 sub ject to the limitations imposed by this subchapter.

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

17. Section 8550 states that the immunity, indemnit y, and damage limitations of the Act do not apply

[i]n any action against a local agency or em ployee thereof for damages on account of an injury caused by th e act of the employee in which it is judicially determined that th e act of the employee caused the injury and that such act constitu ted a crime, actual fraud, actual malice or willful misconduct.

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

32IV. CONCLUSION

For the foregoing reasons, we will affirm the distr ict 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