2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-7-2015

David Gould, III v. Council of Bristol Borough

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"David Gould, III v. Council of Bristol Borough" (2015). 2015 Decisions. Paper 699.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 14-3872

______________

DAVID F. GOULD, III, ESQUIRE,

Appellant

v.

COUNCIL OF BRISTOL BOROUGH;

WILLIAM SALERNO, ESQUIRE;

BRISTOL BOROUGH ZONING HEARING BOARD;

BARBARA KIRK, ESQUIRE

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-13-cv-04016)

Honorable Luis Felipe Restrepo, District Judge

______________

Submitted under Third Circuit LAR 34.1(a)

June 19, 2015

BEFORE: AMBRO, FUENTES, and GREENBERG, Circuit Judges

(Filed: July 7, 2015)

______________

OPINION* 

______________

GREENBERG, Circuit Judge.

______________

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7

 does not constitute binding precedent.
2

I. INTRODUCTION

Attorney David F. Gould, III, brought this action on his own behalf, asserting 

various claims under 42 U.S.C. § 1983 and other civil rights act provisions premised on 

defendants’ alleged misconduct in denying his application for certain zoning variances 

and subsequently defending their conduct against Gould’s challenges in the Pennsylvania 

state courts. In two orders, the District Court dismissed Gould’s claims pursuant to Fed. 

R. Civ. P. 12(b)(6) because the statute of limitations barred the action and the complaint 

did not state an actionable claim. The statute of limitations issue centers on the 

continuing violations doctrine, which the Court found to be inapplicable. We agree with 

the Court that the continuing violations doctrine did not toll the running of the statute of 

limitations: that the action was untimely when Gould started it more than two years after 

his cause of action accrued. Consequently, we will affirm the orders of dismissal.

II. FACTUAL AND PROCEDURAL BACKGROUND

Gould brought this case against the Bristol Borough Council, its solicitor, William 

Salerno, the Bristol Borough Zoning Hearing Board, and its solicitor, Barbara Kirk, 

following a long dispute between Gould and defendants regarding Gould’s attempt to 

develop land in Bristol Borough, Pennsylvania. Though we do not doubt that there are 

disputes of fact in this case, in view of its procedural posture we draw the following facts 

from Gould’s amended complaint, exhibits attached to that complaint, and public records, 

and treat them as true but only for purposes of this litigation.
3

Gould owns property in the Town Center District of Bristol Borough on which 

three dilapidated stone row houses, apparently being a single structure, are situated. 

According to Gould, certain council members and individuals connected to Bristol’s 

government “view the property in a proprietary manner, believing it should be available 

to them or their cronies” for redevelopment. App. at 146a. Around the time Gould 

acquired the property, defendants filed an eminent domain action in the Court of 

Common Pleas of Bucks County in the name of Bristol Borough, seeking to take title to 

the property with the intention of razing the structure on it and selling the property to 

someone of their choosing for redevelopment. The eminent domain action deprived 

Gould of the use of the property while it was pending. Gould filed objections to the 

taking, which the court sustained on August 20, 2007.1 Over the next year, defendants 

undertook other efforts, including issuing citations and assessing fines seeking to require 

Gould either to demolish the property or make certain repairs to it.

In response to this pressure, Gould developed a plan that he believed to be

authorized by a recently enacted zoning ordinance, the 1G Use Ordinance, which for the 

first time allowed mixed commercial-residential uses in the Town Center. The plan 

contemplated replacing the existing building with a new building that would include one 

or two commercial units downstairs and two or three residential units upstairs. Salerno 

indicated to Gould that the 1G Use Ordinance authorized the proposed plan, although 

Gould would have to obtain minor zoning variances to allow the proposed construction.

 

1 The amended complaint indicates that the common pleas court found for Gould on 

August 20, 2008, app. at 148a, but we believe that the correct date was August 20, 2007.
4

Gould applied for the necessary variances, but, after initially seeming to be 

agreeable to the plan, the Zoning Hearing Board denied the application for the variances 

on February 17, 2010. According to Gould, defendants knew that they did not have a 

proper basis for denying the application but nevertheless agreed to have Kirk concoct 

false grounds for the denial. On April 5, 2010, the board issued a written decision 

containing what Gould contends was “a deliberate and fraudulent construction” of 

Bristol’s zoning ordinances. Id. at 156a. Gould makes the particular allegation that, 

despite language in the 1G Use Ordinance indicating that it authorized multiple 

residential units within a mixed-use structure, the decision wrongfully interpreted the 

ordinance as permitting only a single residential unit and a single commercial unit within 

such a structure. Gould asserts that the board in reviewing his application therefore 

applied the strict standard used for review for use variances rather than the more lenient 

standard for the consideration of requests for dimensional variances that should have 

been applied.

Gould appealed the board’s decision to the Court of Common Pleas of Bucks 

County. In that action, defendants argued that the zoning decision was correct, but Gould 

contends that, in doing so, they misrepresented to the court the content of the Bristol 

zoning ordinances. Eventually, the court affirmed the board’s denial of the requested 

variances and filed an opinion to that effect on March 9, 2011. In the opinion, the court 

concluded that the board misinterpreted the 1G Use Ordinance by construing it as being 

applicable to only a single residential unit within a mixed-use structure but nevertheless 
5

held that the board correctly treated Gould’s application as seeking use variances rather 

than dimensional variances. 

Gould appealed the court’s decision, but, according to him, “[t]he succeeding 

courts in the Pennsylvania judicial system adopted and acted on the poisoned fruit 

obtained by Defendants’ fraud.” Id. at 165a. First, the Pennsylvania Commonwealth 

Court affirmed the common pleas court’s order on August 24, 2011. Then, Gould filed a 

petition for allowance of appeal with the Pennsylvania Supreme Court. Initially, 

defendants filed “no answer” letters to Gould’s petition, to which Gould responded in 

letters to Salerno and Kirk asserting that they owed an ethical duty to the court to correct 

what he regarded were the false statements of law they had made to the common pleas 

court and demanding that they do so. After Salerno and Kirk replied that there was no 

error to correct, Gould filed a petition with the Pennsylvania Supreme Court claiming that 

there had been an uncorrected fraud on the courts. In response, defendants submitted 

filings denying that they engaged in any fraud affecting the outcome of the common pleas 

court proceedings. On July 9, 2012, the Pennsylvania Supreme Court denied Gould’s 

petition for allowance of appeal.

On July 8, 2013, Gould filed the present suit in the District Court asserting claims 

under 42 U.S.C. § 1983 and other civil rights law provisions for violations of and 

conspiracy to violate his rights to procedural due process, substantive due process, equal 

protection, and freedom from takings without just compensation. Defendants moved to 

dismiss, and on January 27, 2014, the District Court dismissed the complaint without 

prejudice, relying on both the statute of limitations and the insufficiency of the complaint. 
6

Gould subsequently filed an amended complaint asserting only 42 U.S.C. §§ 1983 and 

1988 claims and thereby abandoning the claims he had made under other sections of the 

civil rights laws. See United States ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 

506, 516 (3d Cir. 2007).2 Defendants filed a second motion to dismiss, which the District 

Court granted on August 11, 2014, based on both the statute of limitations and the merits. 

Gould then filed a notice of appeal to this Court from both orders of dismissal.

III. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over Gould’s § 1983 claims pursuant to 28 

U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.

We exercise plenary review on an appeal from an order dismissing a complaint as 

untimely under the statute of limitations, which is the basis for our decision on this 

appeal. Pension Trust Fund for Operating Eng’rs v. Mortg. Asset Securitization 

Transactions, Inc., 730 F.3d 263, 268 (3d Cir. 2013). To survive a motion to dismiss 

under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter to “state 

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 

S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 

S.Ct. 1955, 1974 (2007)). We must accept the factual allegations in the complaint as true 

and draw all reasonable inferences from the complaint in the plaintiff’s favor. Certain 

Underwriters at Interest at Lloyds of London v. United Parcel Serv. of Am., Inc., 762 

 

2 Even if the claims had been restated under the original sections in an amended form, our 

result would not be different.
7

F.3d 332, 334 (3d Cir. 2014). But in our determination, in addition to the complaint 

itself, we may consider exhibits attached to the complaint, matters of public record, and 

undisputedly authentic documents upon which the plaintiff rests his claims. Mayer v. 

Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

IV. DISCUSSION

Gould seeks to hold defendants liable under § 1983 for allegedly conspiring to 

violate and for violating his constitutional rights to procedural due process, substantive 

due process, and equal protection of the law.3 Each of Gould’s claims rests on an alleged 

scheme by which defendants misapplied Bristol’s zoning ordinances to deny his 

requested variances and then defended this denial by misrepresenting the content of the 

ordinances to the court of common pleas. We, however, need not address the merits of 

Gould’s claims, as we conclude that the statute of limitations bars them.

Although the statute of limitations is an affirmative defense, a defendant can raise 

the defense in a motion to dismiss if the plaintiff’s untimeliness in bringing the action 

appears on the face of the complaint. Pension Trust Fund, 730 F.3d at 271; W. Penn 

Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 105 n.13 (3d Cir. 2010). As with 

motions to dismiss generally, in considering a statute of limitations defense, we may 

consider not only the allegations in the complaint but also exhibits attached to the 

 

3 Gould also asserts a takings claim, but his brief includes only a single sentence in 

support of this claim and does not cite any legal authority. Appellant’s br. at 64. We 

therefore consider the claim waived. See Free Speech Coal., Inc. v. Att’y Gen. of U.S., 

677 F.3d 519, 545 (3d Cir. 2012).
8

complaint and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249-50 (3d 

Cir. 2014); Pension Trust Fund, 730 F.3d at 271.

Gould in his brief does not challenge the applicability to his § 1983 claims of a 

two-year statute of limitations and he could not reasonably do so. See Garvin v. City of 

Phila., 354 F.3d 215, 220 (3d Cir. 2003); Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d 

Cir. 1993). An action under § 1983 accrues “when the plaintiff knew or should have 

known of the injury upon which the action is based.” Montanez v. Sec’y Pa. Dep’t of 

Corr., 773 F.3d 472, 480 (3d Cir. 2014) (quoting Kach v. Hose, 589 F.3d 626, 634 (3d 

Cir. 2009)) (internal quotation marks omitted). Gould initiated this suit on July 8, 2013, 

and he therefore must show that his action accrued on or after July 8, 2011. Yet Gould’s 

awareness of defendants’ alleged misapplication of the zoning ordinances and 

misrepresentation of the content of these ordinances to the court of common pleas 

preceded March 9, 2011, when that court filed its opinion affirming the Zoning Hearing 

Board’s denial of the requested variances. 

Gould attempts to avoid the limitations bar by invoking the continuing violations 

doctrine. This doctrine creates a “narrow” and “equitable exception to the timely filing 

requirement.” Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 236 (3d Cir. 

2014) (quoting Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001)) (internal 

quotation marks omitted). Under the doctrine, “when a defendant’s conduct is part of a 

continuing practice, an action is timely so long as the last act evidencing the continuing 

practice falls within the limitations period.” Montanez, 773 F.3d at 481 (quoting Cowell, 

263 F.3d at 292). That is, “the court will grant relief for the earlier related acts that 
9

would otherwise be time barred.” Cowell, 213 F.3d at 292. The doctrine, the effect of 

which we note litigants frequently overread, focuses, however, solely on “continual 

unlawful acts, not continual ill effects from an original violation.” Weis-Buy Servs., Inc. 

v. Paglia, 411 F.3d 415, 423 (3d Cir. 2005) (quoting Cowell, 263 F.3d at 293). Only 

defendants’ “affirmative acts” count. Tearpock-Martini, 756 F.3d at 236 (quoting 

Cowell, 263 F.3d at 293). “[A] government official’s refusal to undo or correct [a] harm 

[caused by the official’s unlawful conduct] is not an affirmative act for purposes of 

establishing a continuing violation.” Id. at 236 n.8.

In Cowell, for example, we refused to apply the continuing violations doctrine 

where the plaintiffs brought a civil rights action outside the limitations period when 

measured from the time that the municipal defendants imposed allegedly unconstitutional 

liens on the property even though the action would have been timely if measured from 

the time during which the defendants allowed the liens to remain on the property. 263 

F.3d at 293. We explained: “The mere existence of the liens does not amount to a 

continuing violation. Neither was the Township’s refusal to remove the lien an 

affirmative act of a continuing violation.” Id. Similarly, in Tearpock-Martini, we 

rejected the doctrine’s application based on the continued presence of a sign the 

defendants had installed that allegedly violated the Establishment Clause. 756 F.3d at 

237.

In an effort to show that there were affirmative acts within the limitations period, 

Gould points to the Pennsylvania Supreme Court filings in which defendants denied 

engaging in any fraud affecting the outcome of the lower court proceedings. As the 
10

foregoing discussion illustrates, however, such refusals by defendants to correct the 

alleged ongoing harm of their misconduct do not constitute affirmative acts for purposes 

of the continuing violations doctrine. See Tearpock-Martini, 756 F.3d at 236 n.8; 

Cowell, 263 F.3d at 293. 

Notwithstanding the well-established law to which we have referred, Gould 

contends that defendants’ failure to act is a sufficient basis for the continuing violation 

doctrine to apply because defendant solicitors had affirmative ethical obligations to 

correct what he contends were patent errors in the judicial proceedings based on their 

misrepresentation of the local ordinance. But even assuming that the circumstances of 

this case were such that the solicitors had that ethical duty, this case is not distinguishable 

from cases in which we refused to apply the continuing violations doctrine.4 For 

instance, we concluded in Tearpock-Martini that the continued presence of an allegedly 

unconstitutional sign did not satisfy the doctrine, even though we acknowledged later in 

the opinion that the defendants had an ongoing duty under the Establishment Clause to 

remove constitutionally offensive signs. See 756 F.3d at 237, 239; see also Weis-Buy 

Servs., 411 F.3d at 423 (holding that, notwithstanding existence of ongoing trust 

obligations, the continuing violations doctrine did not rescue plaintiffs’ claim for breach 

of fiduciary duties). If we applied the continuing violations doctrine whenever a 

 

4 We are not suggesting that we believe that either Salerno or Kirk acted in an unethical 

way. Rather, we are dealing with Gould’s allegations. We also point out that it would be 

quite remarkable to hold that an attorney had an ethical duty to correct a 

misrepresentation of law to a court with respect to the meaning of an ordinance, as 

distinguished from a factual misrepresentation, such that the attorney’s failure to make 

the correction could result in the tolling of a statute of limitations. After all, the court in 

cases with disputes as to the meaning of laws and ordinances will decide what they mean.
11

defendant had a duty to correct prior misconduct, “the exception might swallow the rule.” 

Tearpock-Martini, 756 F.3d at 236 n.8.

Gould also identifies the affirmance by the Pennsylvania Commonwealth Court 

and the denial of allowance of appeal by the Pennsylvania Supreme Court as part of a 

continuing violation that delayed the accrual of his claims. Yet these adverse appellate 

decisions do not reflect “continual unlawful acts” by defendants but rather “continual ill 

effects” of their alleged misconduct before the court of common pleas. Montanez, 773 

F.3d at 481 (quoting Weis-Buy Servs., 411 F.3d at 423). As the amended complaint 

states, “The succeeding courts in the Pennsylvania judicial system adopted and acted on 

the poisoned fruit obtained by Defendants’ fraud.” App. at 165a. Contrary to Gould’s 

assertion, he did not need to complete his appeal through the Pennsylvania judicial 

system before his § 1983 claims would accrue. Cf. Taylor Inv., Ltd. v. Upper Darby 

Twp., 983 F.2d 1285, 1292 n.12 (3d Cir.) (“A claim is ‘final’ [for ripeness purposes] after 

the zoning hearing board has rendered a decision. Finality does not require state court 

review of the board’s decision.”). Gould contends that considering the limitations period 

to be running while his state court appeals were still pending would impede his right to 

that appellate process. We reject this argument because there was nothing preventing 

him from pursuing the District Court and state court proceedings simultaneously. Cf.

Weis-Buy Servs., 411 F.3d at 423-24 (rejecting plaintiffs’ argument that their claim 

against defendant did not accrue until they had exhausted their remedies against another 

party because plaintiffs could have brought separate actions simultaneously); Sameric 

Corp. of Del. v. City of Phila., 142 F.3d 582, 600 (3d Cir. 1998) (holding that plaintiff’s 
12

diligence in objecting to land-use decision in state court did not toll statute of limitations 

under continuing violations doctrine as to separate due process claim). Hence, Gould’s 

claims were untimely.

V. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s orders of dismissal 

of Gould’s original complaint and amended complaint, respectively entered on January 

27, 2014, and August 11, 2014.