2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-23-2014

Francene Tearpock-Martini v. Borough of

Shickshinny

Precedential or Non-Precedential: Precedential

Docket No. 13-3876

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Recommended Citation

"Francene Tearpock-Martini v. Borough of Shickshinny" (2014). 2014 Decisions. Paper 617.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3876

_____________

FRANCENE TEARPOCK-MARTINI,

Appellant

v.

BOROUGH OF SHICKSHINNY; JULE MOORE;

MICHAEL STEEBER; ROSALIE WHITEBREAD; 

JAMES WIDO

__________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-12-cv-02223)

District Judge: Honorable James M. Munley

__________________________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 20, 2014

Before: CHAGARES, GREENAWAY, JR., and 

VANASKIE, Circuit Judges

(Filed: June 23, 2014)
2

Barry H. Dyller, Esq.

Dyller Law Firm

88 North Franklin Street

Gettysburg House

Wilkes-Barre, PA 18701

Counsel for Appellant

John J. Mahoney, Esq.

Siana, Bellwoar & McAndrew

941 Pottstown Pike

Suite 200

Chester Springs, PA 19425

Counsel for Appellees

_____________

OPINION OF THE COURT

_____________

VANASKIE, Circuit Judge. 

In 2008, Appellee Borough of Shickshinny 

(“Shickshinny”) approved placement of a religious-themed 

sign on municipal property near the home of Appellant 

Francene Tearpock-Martini (“Tearpock-Martini”). In 2012, 

Tearpock-Martini brought this civil rights action, challenging 

the placement of the sign as a violation of the Establishment 

Clause of the First Amendment of the Constitution of the 

United States. At issue in this appeal is whether an 

Establishment Clause challenge under 42 U.S.C. § 1983 to a 

still-existing monument erected on municipal property is 

subject to a state-law statute of limitations. We hold that it is 

not. Accordingly, we will vacate the District Court’s ruling 

that the Establishment Clause challenge advanced by 
3

Tearpock-Martini is time-barred. With respect to her other 

claims—that the refusal of Shickshinny to allow her to erect 

her own nearby sign violated her rights to free speech and 

equal protection of the law—we conclude that Pennsylvania’s

statute of limitations does apply, and will affirm the District 

Court’s dismissal of those claims on limitations grounds.

I.

Tearpock-Martini, a resident of Shickshinny,

Pennsylvania, owns property situated at the intersection of 

South Main Street and Furnace Street.1 In 2008, a local 

pastor sought to place a directional sign for his church near

her property. Tearpock-Martini objected. At an August 2008 

meeting, the Shickshinny Borough Council voted to approve 

the installation of the sign on the Borough’s right of way 

bordering Tearpock-Martini’s property.

2 On August 18, 

2008, Shickshinny employees installed the sign, which reads: 

“Bible Baptist Church Welcomes You!” It has a directional 

arrow with “1 BLOCK” written on it, and depicts a gold cross 

and a white Bible.

 

1 Our recitation of the factual background is derived 

from Tearpock-Martini’s Amended Complaint. For purposes 

of this appeal, we accept as true all facts set forth therein, and 

draw all reasonable inferences from such allegations in favor 

of the complainant. Warren Gen. Hosp. v. Amgen Inc., 643 

F.3d 77, 84 (3d Cir. 2011).

2 Appellees Jule Moore, Michael Steeber, Rosalie 

Whitebread, and James Wido are Borough Council members 

who voted to approve the sign.
4

To protest the placement of the sign, Tearpock-Martini 

installed, on her property directly in front of the church sign, 

a posting of her own, which read: “This Church Sign Violates 

My Rights As A Taxpayer & Property Owner. Residential 

Neighborhoods Are Not Zoned For Advertisement Signs!”

Shickshinny, by way of a letter and also a verbal warning 

from its Code Enforcement Officer, told Tearpock-Martini

that she could be charged with summary offenses if she did 

not remove her sign. Tearpock-Martini evidently removed 

her sign in response to these threats.

3

 At some unspecified 

time thereafter, the town reinforced the installation of the 

church sign using heavy equipment and poured concrete.

In November 2012, Tearpock-Martini filed a civil 

rights complaint pursuant to 42 U.S.C. § 1983. She later filed 

a three-count Amended Complaint. Count One asserts an

Equal Protection claim based upon the refusal to allow her to 

erect her own sign; Count Two asserts that Appellees 

violated, and continue to violate, the Establishment Clause by 

authorizing the installation and ongoing presence of the 

church sign; and Count Three avers that Appellees violated

the First Amendment by threatening to prosecute TearpockMartini for installation of her own sign. She seeks injunctive 

relief consisting of removal of the church sign, as well as

damages.

Appellees moved to dismiss the Amended Complaint 

based on, among other things, Pennsylvania’s two-year 

statute of limitations for tort claims. In a Memorandum and 

 

3 Although the Amended Complaint itself is unclear on 

this point, Shickshinny seems to concede as much in its 

briefing. Appellees’ Br. at 19.
5

Order entered August 19, 2013, the District Court found that 

Tearpock-Martini’s claims were time-barred, and granted the 

motion to dismiss. Tearpock-Martini filed a timely notice of 

appeal.

II.

The District Court had jurisdiction over this case 

pursuant to 28 U.S.C. §§ 1331 and 1343. We have 

jurisdiction over the District Court’s final order pursuant to 

28 U.S.C. § 1291. Our review of a dismissal under Rule 

12(b)(6) is de novo. Fowler v. UPMC Shadyside, 578 F.3d 

203, 206 (3d Cir. 2009).

III.

The Establishment Clause, which states that “Congress 

shall make no law respecting an establishment of religion[,]” 

U.S. Const. amend. I, prevents any branch of federal, state, or 

municipal government from “act[ing] with the ostensible and 

predominant purpose of advancing religion . . . .” McCreary 

Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005). 

Although the precise contours of that command have 

historically resisted definition even by our highest Court,4it is 

 

4

See, e.g., Van Orden v. Perry, 545 U.S. 677, 692 

(2005) (Scalia, J., concurring) (characterizing the plurality 

opinion as “accurately reflect[ing] our current Establishment 

Clause jurisprudence—or at least the Establishment Clause 

jurisprudence we currently apply some of the time.”); Utah 

Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12, 17–

19 (2011) (Thomas, J., dissenting from denial of certiorari) 

(noting that the display on government property of a crèche, 
6

undisputed that religious displays erected by the State, 

whether enduring or only temporary, may sometimes stand in 

violation of the Constitution. See, e.g., id. at 881 (concluding 

that courthouse display of the Ten Commandments violated 

the Establishment Clause).

Section 1 of the Civil Rights Act of 1871, codified at 

42 U.S.C. § 1983, is the vehicle by which an individual may 

sue government officials in tort for violations of 

constitutional rights, including those arising under the 

Establishment Clause.

5

 Although federal law provides no 

 

menorah, the Ten Commandments, or a cross “violates the 

Establishment Clause, except when it doesn’t.”).

5

In pertinent part, the statute reads:

Every person who, under color of 

any statute, ordinance, regulation, 

custom, or usage, of any State or 

Territory or the District of 

Columbia, subjects, or causes to 

be subjected, any citizen of the 

United States or other person 

within the jurisdiction thereof to 

the deprivation of any rights, 

privileges, or immunities secured 

by the Constitution and laws, shall 

be liable to the party injured in an 

action at law, suit in equity, or 

other proper proceeding for 

redress . . . .
7

statute of limitations for actions brought under § 1983, state 

law may provide a limitations period “if it is not inconsistent 

with federal law or policy to do so.” Wilson v. Garcia, 471 

U.S. 261, 266–67 (1985) (citing 42 U.S.C. § 1988), 

superseded by statute on other grounds, 28 U.S.C. § 1658(a); 

see also Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 

2010). Because the Supreme Court has clarified that “all § 

1983 claims should be characterized for statute of limitations 

purposes as actions to recover damages for injuries to the 

person[,]” Springfield Twp. Sch. Dist. v. Knoll, 471 U.S. 288, 

289 (1985), the ostensibly applicable term here is 

Pennsylvania’s two-year limitations period applicable to tort 

claims, see 42 Pa. Cons. Stat. Ann. § 5524(7).6 The date of 

 

42 U.S.C. § 1983.

6

In pertinent part, the statute reads:

The following actions and 

proceedings must be commenced 

within two years:

(7) Any other action or 

proceeding to recover damages 

for injury to person or property 

which is founded on negligent, 

intentional, or otherwise tortious 

conduct or any other action or 

proceeding sounding in trespass, 

including deceit or fraud, except 

an action or proceeding subject to 

another limitation specified in this 

subchapter.
8

the claim’s accrual, however, continues to be governed by 

federal law, see Wallace v. Kato, 549 U.S. 384, 388 (2007), 

although state law generally governs tolling and its effects,

see Chardon v. Soto, 462 U.S. 650, 655 (1983).

Tearpock-Martini does not dispute that more than two 

years elapsed between the installation of the church sign by 

Appellees and the commencement of her lawsuit.7 Instead, 

she invokes the continuing-violation doctrine, which “is an 

‘equitable exception to the timely filing requirement.’” 

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

(quoting West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 

1995)). In brief, the rule provides that “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; in such an instance, the court 

will grant relief for the earlier related acts that would 

otherwise be time barred.” Brenner v. Local 514, United 

Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 

(3d Cir. 1991). The doctrine’s focus “is on affirmative acts of 

the defendants.” Cowell, 263 F.3d at 293.

 

42 Pa. Cons. Stat. Ann. § 5524(7).

7 Nor does she allege or argue that Appellees’ 

reinstallation of the church sign occurred within two years of 

the complaint. And although the Amended Complaint states 

that Appellees “repeatedly ratify their installation and 

maintenance of the sign at Shickshinny Borough meetings[,]” 

(App. 24), Tearpock-Martini does not explain the import of 

this conclusory statement.
9

The reach of this doctrine is understandably narrow. 

We have often applied it in employment discrimination cases, 

where only in retrospect will a plaintiff recognize that 

seemingly unconnected incidents were, in fact, part and 

parcel of a larger discriminatory pattern. See Mandel v. M & 

Q Packaging Corp., 706 F.3d 157, 165–67 (3d Cir. 2013) 

(citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 

(2002)). Under such circumstances, equity demands that so 

long as the most recent offensive utterance or adverse action

occurred within the limitations period, the entire scope of that 

continuing violation may be considered. Id. We have 

cautioned, however, that equitable relief from the statutory 

limitations period is appropriate only where the alleged 

violation is “‘occasioned by continual unlawful acts, not 

continual ill effects from an original violation.’” Cowell, 263 

F.3d at 293 (quoting Ocean Acres Ltd. v. Dare Cnty. Bd. of 

Health, 707 F.2d 103, 106 (4th Cir. 1983)).8

The only cases lending credence to Tearpock-Martini’s 

theory that a monument which contravenes the Establishment 

Clause is a continuing act giving rise to a newly accrued right 

on each day of its existence, as opposed to a continuing effect 

of the original installation, come from the Seventh Circuit. In 

Gonzales v. North Township of Lake County, 800 F. Supp. 

676, 684 (N.D. Ind. 1992), the district court considered the 

 

8 Were it not for this sensible limitation, the exception 

might swallow the rule. A financial harm, physical trauma, or 

injury to reputation, for instance, will often follow a plaintiff 

long after the unlawful act itself. As a corollary, we have

held that a government official’s refusal to undo or correct 

such harm is not an affirmative act for purposes of 

establishing a continuing violation. Cowell, 263 F.3d at 293.
10

constitutionality of a monument installed in 1955 and 

challenged 30 years later. The court, despite ultimately 

finding no Establishment Clause violation, declined to apply 

the statute of limitations, explaining that “as each day there is 

a violation, each day [the plaintiff’s] cause of action accrues.”

Id. On appeal, the Seventh Circuit reversed, concluding, 

without disturbing the district court’s limitations ruling, that 

the monument did violate the Establishment Clause. See 

Gonzales v. N. Twp. of Lake Cnty., 4 F.3d 1412 (7th Cir. 

1993).

Years later, in Pitts v. City of Kankakee, 267 F.3d 592

(7th Cir. 2001), the Seventh Circuit revisited its Gonzales

opinion in dicta. The Pitts plaintiffs argued that the city had 

violated their First Amendment rights by placing defamatory

signs on their property in retaliation for certain protected 

speech. The panel rejected the plaintiffs’ argument that the 

continuing-violation doctrine applied, in part by 

distinguishing the plaintiffs’ claims from an Establishment 

Clause violation:

The First Amendment’s command 

that there be no establishment of 

religion stands on a different 

footing from a private individual’s 

interest in avoiding defamation. 

All citizens have an interest in 

preventing government from 

sponsoring one particular religion, 

however worthy the tenets of that 

faith may be. Indeed, it might not 

be too much to say that an 

important part of the reason why 

the United States has been 
11

fortunate enough to escape most 

of the religious conflict that has 

plagued other parts of the world is 

that the Constitution itself 

demands that the government 

maintain a position of absolute 

neutrality among religions. 

Potential violations of this 

principle may not be obvious, 

however, to those who share a 

common background. In a 

predominantly Christian 

community, it may take a 

Buddhist, or a [Muslim], or a Jew, 

or an atheist, to call to the 

authorities’ attention a possible 

violation of the Establishment 

Clause. The rights of such 

citizens do not expire simply 

because a monument has been 

comfortably unchallenged for 

twenty years, or fifty years, or a 

hundred years. Each day, as our 

own opinion in Gonzales

implicitly recognized, brings a 

new duty on the government's 

part, and a corresponding new 

right to seek vindication of the 

constitutional right in question.

Id. at 596.

We take no issue with the Seventh Circuit’s emphatic 

pronouncement that Establishment Clause claims ultimately 
12

are not subject to dismissal under a state statute of limitations. 

But nothing in the reasoning of either Gonzales or Pitts 

suggests why the continuing-violation doctrine provides a 

coherent basis for that conclusion. Many allegedly 

unconstitutional state actions set in motion a lasting 

consequence which, to an injured plaintiff, might continue to 

invite vindication. But as we recognized in Cowell, to elide 

the distinction between affirmative acts and effects would be 

to extend indefinitely the date of accrual for all constitutional 

claims predicated upon state takings, denial of business 

permits, zoning decisions, and any other manner of state 

action carrying long-term repercussions.

Instead we find ourselves in agreement with the simple 

logic advanced by Appellees: (1) the last affirmative act taken 

by Shickshinny was the physical installation of the sign itself, 

which occurred outside the limitations period; (2) the 

continued presence of the sign is merely an effect of that 

action; (3) the continuing-violation doctrine does not apply. 

Like the District Court, which concluded that Appellees 

“ha[ve] committed no acts within the two years of the filing 

of plaintiff’s complaint,” (App. 12), we too conclude that the 

continuing-violation doctrine does not apply on these facts.

IV.

When an issue is properly before us, we are “not 

limited to the particular legal theories advanced by the 

parties, but rather retain[] the independent power to identify 

and apply the proper construction of governing law.” Kamen 

v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (citing 

Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)); see also 

Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 

408, 413 n.3 (3d Cir. 2012). Here, we find Pennsylvania’s 
13

statute of limitations inapplicable to Tearpock-Martini’s 

claim for a reason other than the one she offers.

As explained by the Supreme Court in Wilson, 471 

U.S. at 267, and as we touched upon earlier, federal law 

incorporates state law for purposes of certain interstitial 

“rules of decision applicable to civil rights claims . . . .” Such 

incorporation by reference, however, is not automatic, and 

instead requires a three-step analysis:

First, courts are to look to the 

laws of the United States “so far 

as such laws are suitable to carry 

[the civil and criminal civil rights 

statutes] into effect.” [42 U.S.C. 

§ 1988(a).

9

] If no suitable federal 

 

9

In pertinent part, the statute reads:

The jurisdiction in civil and 

criminal matters conferred on the 

district courts . . . for the 

protection of all persons in the 

United States in their civil rights, 

and for their vindication, shall be 

exercised and enforced in 

conformity with the laws of the 

United States, so far as such laws 

are suitable to carry the same into 

effect; but in all cases where they 

are not adapted to the object, or 

are deficient in the provisions 

necessary to furnish suitable 

remedies and punish offenses 
14

rule exists, courts undertake the 

second step by considering 

application of state “common law, 

as modified and changed by the 

constitution and statutes” of the 

forum state. Ibid. A third step 

asserts the predominance of the 

federal interest: courts are to 

apply state law only if it is not 

“inconsistent with the 

Constitution and laws of the 

United States.” Ibid.

Burnett v. Grattan, 468 U.S. 42, 47–48 (1984). The first two 

steps are not in dispute: because § 1983 lacks a limitations 

period, we turn to Pennsylvania’s statutory rule. The third 

step, upon which we now focus, compels us to apply that rule 

 

against law, the common law, as 

modified and changed by the 

constitution and statutes of the 

State wherein the court having 

jurisdiction of such civil or 

criminal cause is held, so far as 

the same is not inconsistent with 

the Constitution and laws of the 

United States, shall be extended to 

and govern the said courts in the 

trial and disposition of the cause . 

. . .

42 U.S.C. § 1988(a).
15

unless it would be “inconsistent with federal law or policy to 

do so.” Wilson, 471 U.S. at 266–67.

We thus consider the significance of the federal rights

implicated by an Establishment Clause claim. Perhaps the 

most readily apparent factor on this point is the Clause’s 

standing in the first line of the Bill of Rights. See U.S. Const. 

amend. I. The Supreme Court, too, despite a fractious debate 

over the scope of the substantive rights conveyed, has 

reiterated the importance of the Clause time and again: “It is 

settled law that no government official in this Nation may 

violate these fundamental constitutional rights regarding 

matters of conscience.” Cnty. of Allegheny v. ACLU Greater 

Pittsburgh Chapter, 492 U.S. 573, 590 (1989), abrogated on 

other grounds by Town of Greece v. Galloway, 134 S. Ct. 

1811 (2014); Town of Greece, 134 S. Ct. at 1825 

(characterizing Establishment Clause rights as “elemental”).

Many constitutional rights which are traditionally 

subject to state limitations periods, of course, are of debatably 

equal or even greater significance. But what further 

distinguishes Tearpock-Martini’s claim, and Establishment 

Clause claims in general, is that the traditional rationales 

justifying a limitations period—“to protect defendants against 

stale or unduly delayed claims,” “facilitat[e] the 

administration of claims,” and “promot[e] judicial 

efficiency,” John R. Sand & Gravel Co. v. United States, 552 

U.S. 130, 133 (2008)—simply have no persuasive force in 

this context. Tearpock-Martini’s challenge is to a stillexisting monument that communicates anew an allegedly 

unconstitutional endorsement of religion by the government 

each time it is viewed. Strict application of the statutory 

limitations period both serves no salutary purpose and 
16

threatens to immunize indefinitely the presence of an 

allegedly unconstitutional display. 

Our analysis is bolstered by the fact that we are aware 

of no opinion, aside from that issued by the District Court 

below, to have held that an Establishment Clause violation 

predicated on a still-existing display or practice was timebarred. This cannot be for lack of opportunity: high-profile 

challenges to the long-standing public display of religious 

monuments have been routine in recent years. Although such 

claims sometimes fail on the merits or for other procedural 

reasons, none have been dismissed on limitations grounds. 

See, e.g., Van Orden v. Perry, 545 U.S. 677 (2005) (display 

of Ten Commandments challenged 40 years after 

installation); Card v. City of Everett, 520 F.3d 1009 (9th Cir. 

2008) (monument challenged more than 30 years after 

installation); Weinbaum v. City of Las Cruces, 541 F.3d 1017 

(10th Cir. 2008) (city seal challenged after over 40 years in 

use); Freedom from Religion Found., Inc. v. City of 

Marshfield, 203 F.3d 487 (7th Cir. 2000) (statue in Wisconsin 

park challenged after 39 years on site); Harris v. City of Zion, 

Lake Cnty., 927 F.2d 1401 (7th Cir. 1991) (city seal 

challenged after 89 years in use); Friedman v. Bd. of Cnty. 

Comm’rs, 781 F.2d 777 (10th Cir. 1985) (en banc) (county

seal challenged after 60 years in use). Cases involving 

ongoing practices, too, have been brought long after the 

initiation of the practice at issue without implicating a 

limitations period. See, e.g., Town of Greece, 134 S. Ct. at 

1816 (prayer at town meeting challenged after 9 years of 

monthly occurrences). And our own jurisprudence, which 

addresses the question only cursorily, implies that such claims 

are not subject to dismissal under the statute of limitations. 

See, e.g., Freethought Soc’y of Greater Phila. v. Chester 
17

Cnty., 334 F.3d 247, 255 n.3 (3d Cir. 2003) (“[W]e do not 

believe that the defendants have demonstrated that [the 

plaintiff] waived her right to bring this action (or that the 

statute of limitations has expired) because she noticed the 

plaque in the 1960s but did not bring an action until 2001.”).10

In sum, the significance of the constitutional interests 

at play, the minimal interests advanced by application of a 

limitations period, and the long-standing apparent exemption 

of Establishment Clause claims from such defenses convince 

us that it would be “inconsistent with federal law or policy,” 

Wilson, 471 U.S. at 266–67, to apply Pennsylvania’s 

limitations period to Tearpock-Martini’s Establishment 

Clause claim.

11

 Accordingly, we will vacate the dismissal of 

Count Two of the Amended Complaint.

 

10 Although academic literature on the question 

presented is all but nonexistent, Erwin Chemerinsky, a noted 

constitutional scholar, agrees that the issue is not a matter of 

tolling—instead, the better view is that “there is no statute of 

limitations for Establishment Clause claims.” Erwin 

Chemerinsky, Why Justice Breyer Was Wrong in Van Orden 

v. Perry, 14 Wm. & Mary Bill Rts. J. 1, 14 (2005).

11 It should be plain from this analysis that our logic 

and holding extend only to Establishment Clause claims 

challenging a still-existing display. Although the question is 

not before us, we expect that Establishment Clause claims 

predicated on discrete incidents would remain subject to any 

applicable state-law limitations period. See, e.g., Weinstein v. 

U.S. Air Force, 468 F. Supp. 2d 1366, 1375 (D.N.M. 2006) 

(dismissing Establishment Clause claim predicated on single 
18

Appellees ask that in the alternative, we consider 

whether Tearpock-Martini’s Establishment Clause claim fails 

to state a claim upon which relief can be granted. Because 

the District Court has not yet passed on that question, we 

express no opinion on the matter and leave it for resolution 

upon remand.

V.

Counts One and Three of the Amended Complaint

allege that Shickshinny violated the Equal Protection Clause 

and the Free Speech Clause, respectively, when it prohibited 

Tearpock-Martini from installing her own sign in protest of 

the church sign. As noted above, Tearpock-Martini does not 

allege that this incident occurred within two years of the 

filing of her lawsuit. Nor does she specifically argue in her 

briefing that the limitations period for these claims, too,

should be tolled by the continuing-violation doctrine or for 

any other reason.

We agree with the District Court that these claims, 

which also arise under § 1983, are barred by Pennsylvania’s

two-year statute of limitations. See, e.g., Bougher v. Univ. of 

Pittsburgh, 882 F.2d 74, 78–79 (3d Cir. 1989) (affirming 

dismissal of equal protection claims under Pennsylvania 

statute of limitations); O’Connor v. City of Newark, 440 F.3d 

125, 129 (3d Cir. 2006) (affirming dismissal of free speech 

claim under Pennsylvania statute of limitations). 

Accordingly, we will affirm the District Court’s order of 

 

incident of unwelcome “proselytizing” under New Mexico’s 

six-year limitations period).
19

August 19, 2013 insofar as it dismisses Counts One and Three 

of the Amended Complaint.

VI.

For the foregoing reasons, we will affirm in part and 

vacate in part the District Court’s ruling, and remand for 

further proceedings consistent with this opinion.