2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-27-2001

Cowell v. Palmer

Precedential or Non-Precedential:

Docket 00-1075

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Cowell v. Palmer" (2001). 2001 Decisions. Paper 193.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/193
Filed August 27, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 00-1075 

EILEEN COWELL; RICHARD COWELL; 

SYLVESTER PANY; EASTGATE LAND & 

DEVELOPMENT CORP., 

 Appellants 

v. 

PALMER TOWNSHIP; DONALD S. HIMMELREICH; 

VIRGINIA S. RICKERT; THEODORE BOREK; 

ROBERT LAMMI; JEFFREY YOUNG; ROBERT ELLIOT; 

ROBERT WASSER; H. ROBERT DAWS; HEMSTREET, 

HIMMELREICH & NITCHKEY; JOHN DOES 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil No. 99-cv-03216) 

District Judge: Hon. Thomas N. O'Neill, Jr. 

Argued: May 21, 2001 

Before: BECKER, Chief Judge, SLOVITER, and 

AMBRO, Circuit Judges 

(Filed August 27, 2001) 

 Maurice R. Mitts (Argued) 

 Heather Gelfand Ptasznik 

 Philadelphia, PA 19103 

 Attorneys for Appellants 
 Maureen P. Fitzgerald (Argued) 

 McKissock & Hoffman, P.C. 

 Philadelphia, PA 19103 

 Attorneys for Appellees 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

Eileen Cowell, Richard Cowell, Sylvester Pany, and 

Eastgate Land & Development Corp. (collectively"plaintiffs") 

brought takings and due process claims pursuant to 42 

U.S.C. S 1983, as well as various state law claims, against 

Palmer Township, various township officials, and the 

Township's law firm (collectively "defendants"). The basis for 

these claims was the defendants' alleged interference in the 

plaintiffs' land development plans, specifically the 

imposition of two municipal liens on the plaintiffs' 

properties in 1992 and 1993. The District Court dismissed 

the federal law claims under Fed. R. Civ. P. 12(b)(6), 

declined to allow plaintiffs leave to amend their complaint, 

and further dismissed the state law claims without 

prejudice. We now review the plaintiffs' appeal. 

I. 

FACTS AND PROCEDURAL HISTORY 

Eileen Cowell, Richard Cowell, and Sylvester Pany were 

owners of Eastgate Land & Development Corp. ("Eastgate"), 

a Pennsylvania real estate development company that

owned a 23-acre parcel of land in Palmer Township, 

Pennsylvania known as the Palmer Business Park. In 1987, 

the plaintiffs began a three phase project to improve the 

land for development. This project was subject to the local 

land use codes of Palmer Township. Defendants Robert 

Lammi, Jeffrey Young, Robert Elliot, Robert Wasser, and H. 

Robert Daws were on the Township's Board of Supervisors 

at all relevant times. Defendant Virginia S. Rickert was also 

on the board and served as the Treasurer of Palmer 

 2 
Township. Defendant Theodore Borek was the Township's 

Director of Planning. Defendant Donald Himmelreich was 

the Solicitor for Palmer Township, and his law firm, 

Hemstreet, Himmelreich & Nitchkey, served as counsel to 

the Township. 

Appellants planned to sell lots to McDonalds and 

Kentucky Fried Chicken for the development of restaurants, 

as well as to build a shopping mall to be called Eastgate 

Mall. Before contracts could be signed to finalize these 

plans, the Township allegedly changed the zoning 

classification of these lots from commercial use to"planned 

office buildings," thereby preventing the development of 

these commercial enterprises. Eastgate sued to prevent 

these zoning changes from taking effect. Plaintiffs allege, 

and defendants do not deny, that the parties reached a 

settlement in which Eastgate agreed to cease its plans to 

build the Eastgate Mall and the Township agreed to 

approve all projects that had already been proposed for 

Phases I, II, and II(a) at Palmer Business Park as well as 

assume responsibility for certain municipal improvements. 

But when Eastgate proceeded with the development of

Phase II, the Township allegedly imposed a building

moratorium in July 1987 which prohibited any and all 

commercial development of the property and caused severe 

financial hardship for Eastgate. 

It is the allegations of the events occurring after 1990 

that are most relevant to this appeal. Beginning in 1990, 

the plaintiffs worked to improve Lots 12 through 17 of 

Palmer Business Park in order to sell them as buildable 

lots. On October 22, 1992, the Township imposed a 

$25,000 lien on Lots 14 and 15, naming Richard Cowell 

and Nicholas J. Pugliese as owners of those lots. The lien 

was filed "on the basis of anticipated non-payment of the 

installation of certain municipal improvements." App. at 

206. 

The Township explains that the lien was imposed 

pursuant to an agreement that Cowell and Pugliese would 

be responsible for paying for paving work on a subdivision 

called Milford Street, with the Township serving as the 

guarantor. The Township contends that when neither 

Cowell nor Pugliese paid the paving contractor on time, the 

 3 
Township paid the bill and then imposed the lien. The 

plaintiffs respond that Richard Cowell had sold his interest 

in Milford Street to Pugliese in 1991 and should not have 

been responsible for any municipal improvements. More 

important, they argue that the lien was unlawful under the 

Municipal Lien Code, 53 Pa. Cons. Stat. Ann. SS 7101 et 

seq., because no improvements were made on Lots 14 and 

15 for which a lien could be legally placed. They further 

argue that the Township imposed the lien to retaliate 

against them for successfully challenging the Township's 

zoning changes in 1987 and to cause financial harm to the 

plaintiffs. 

On March 9, 1993, the Township imposed a second 

municipal lien in the amount of $250,000 on the 

subdivisions of Palmer Business Park owned by Eastgate. 

This lien was filed "for present and future unfunded escrow 

review accounts and unfunded escrow accounts for 

municipal improvements." App. at 209. On March 24, 

1993, Himmelreich sent a letter to Eastgate on behalf of the 

Township explaining that the lien was intended to serve as 

a security for (1) the anticipated failure by Eastgate to 

complete municipal improvements and (2) the unlawful 

depletion of funds held in an escrow account for the 

Township's benefit, accomplished by Richard and Eileen 

Cowell forging signatures of various township officials in 

order to obtain the release of various funds held in escrow. 

The Cowells had indeed pled guilty to forgery and theft by 

receipt of stolen property. However, the plaintiffs contend 

that the reference to the Cowells' criminal conduct was a 

smokescreen and that the $250,000 lien was imposed for 

the municipal improvements only. They further allege that 

the Township refused to remove this lien even after it was 

informed that the plaintiffs had sufficient funds to pay for 

the municipal improvements. 

In April 1994, Eastgate filed a Chapter 11 bankruptcy 

petition. As part of their Plan of Reorganization, Eastgate 

agreed to pay $30,000 to the Township in exchange for a 

discharge of the $250,000 lien. Eileen Cowell also filed for 

personal bankruptcy. During Eileen Cowell's bankruptcy 

proceeding, the bankruptcy judge lifted and expunged the 

$25,000 lien on July 13, 1998, and thereafter noted in the 

 4 
amended order that "a municipal improvement lien cannot 

be filed against a property not so improved." App. at 222-223.1 

Specifically, the bankruptcy judge found that Lot 14 was 

not affected or benefitted by the improvements done on 

Milford Street, which was one mile away and in a separate 

development. 

On June 25, 1999, Eileen Cowell, Richard Cowell, 

Sylvester Pany, and Eastgate filed the present suit against 

Palmer Township, various township officials, and the 

Township's law firm. The complaint alleges that the

imposition of the two municipal liens violated the Takings 

Clause of the Fifth Amendment and the Due Process Clause 

of the Fourteenth Amendment, as well as various state 

laws. 

The defendants moved to dismiss all of the claims for 

failure to state a claim upon which relief could be granted 

pursuant to Fed R. Civ. P. 12(b)(6). The defendants

asserted, inter alia, that the actions alleged did not amount 

to a taking and that the takings claim was not yet ripe. The 

defendants further asserted that the due process claim was 

barred by the statute of limitations. In response, the 

plaintiffs argued that they stated a valid takings claim and 

that the statute of limitations should not apply because the 

Township had continued to interfere with their development 

plans after the imposition of the second lien in March 1993. 

The plaintiffs therefore asked the court to deny the motion 

to dismiss or, alternatively, to allow them to amend their 

complaint to include additional allegations. 

In a memorandum and order dated December 16, 1999, 

the District Court dismissed the takings and due process 

claims, declined to allow the plaintiffs to amend their 

complaint, and dismissed the state law claims without 

prejudice after declining to exercise jurisdiction over them. 

The plaintiffs filed a timely notice of appeal. We have 

jurisdiction under 28 U.S.C. S 1291. 

_________________________________________________________________ 

1. Richard Cowell had apparently conveyed his interest in Lot 14 to 

Eileen Cowell in January 1992 as part of a divorce settlement. 

 5 
II. 

DISCUSSION 

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) 

may be granted only if, accepting all well-pleaded 

allegations in the complaint as true and viewing them in 

the light most favorable to plaintiff, the plaintiff is not 

entitled to relief. See Maio v. Aetna, Inc., 221 F.3d 472, 

481-82 (3d Cir. 2000). We have plenary review of a district 

court's dismissal of a complaint pursuant to Fed. R. Civ. P. 

12(b)(6). See id. We review a district court's refusal to allow 

a party to amend its complaint for abuse of discretion. See 

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 

1434 (3d Cir. 1997). 

A. Takings Claim 

The plaintiffs allege that the Township and various

township officials violated the Takings Clause by imposing 

two municipal liens that impaired the value of the plaintiffs' 

properties and deprived them of their right to full control of 

their properties. The District Court ruled that the takings 

claim was not yet ripe because the plaintiffs had not yet 

availed themselves of the state procedures for seeking just 

compensation. In the alternative, the court held that the 

defendants' alleged actions did not rise to the level of a 

taking. 

The Fifth Amendment proscribes the taking of private 

property for public use without just compensation. See U.S. 

Const. amend. V. It is well-recognized that this prohibition 

applies to state and local governments under the 

Fourteenth Amendment. See Chicago, Burlington & Quincy 

R.R. Co. v. City of Chicago, 166 U.S. 226, 239 (1897). The 

Supreme Court has recognized that just compensation need 

not be paid in advance of the taking -- "all that is required 

is that a reasonable, certain and adequate provision for 

obtaining compensation exist at the time of the taking." 

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

of Johnson City, 473 U.S. 172, 194 (1985) (quotation 

omitted). Therefore, if a state has provided an adequate 

procedure for seeking just compensation and a landowner 

has used those procedures to obtain just compensation, 

 6 
there is no violation of the Takings Clause. See id. It follows 

that "if a State provides an adequate procedure for seeking 

just compensation, the property owner cannot claim a 

violation of the [Takings] Clause until it has used the 

procedure and been denied just compensation." Id. at 195. 

Pennsylvania's Eminent Domain Code provides inverse

condemnation procedures through which a landowner may 

seek just compensation for the taking of property. See 26 

Pa. Cons. Stat. Ann. SS 1-408, 1-502(e), 1-609.2 Indeed, 

many landowners have invoked these procedures to seek 

just compensation for takings. See, e.g., In re Prop. Situate 

Along Pine Rd. in Earl Township, 743 A.2d 990 (Pa. 

Commw. 1999); Gross v. City of Pittsburgh, 741 A.2d 234 

(Pa. Commw. 1999); Lehigh-Northampton Airport Auth. v. 

WBF Assocs., 728 A.2d 981 (Pa. Commw. 1999). 

In the case at hand, the plaintiffs do not contend that 

they attempted to use these procedures but were denied 

just compensation. Instead, they argue they were not 

required to file an inverse condemnation petition because 

the Township did not have legal authority under the

Eminent Domain Code or any other power to impose the 

liens. In addition, they claim that they "exhausted state 

remedies" by raising the merits of the two liens in

bankruptcy court. 

We reject the plaintiffs' arguments. The plaintiffs' ability 

to file an inverse condemnation petition in state court in 

order to obtain just compensation was not related to the 

Township's right to impose the liens. In addition, 

adjudication in federal bankruptcy court is not an 

appropriate alternative to the state inverse condemnation 

procedures. As the Township notes, the bankruptcy courts 

never determined whether there had been a taking of the 

plaintiffs' property. Because the plaintiffs have not availed 

themselves of the appropriate procedures under 

_________________________________________________________________ 

2. Under Pennsylvania law, a landowner may file a petition requesting 

the appointment of viewers to declare a taking and ascertain just 

compensation. See 26 Pa. Cons. Stat. Ann.S 1-502(e). If the landowner 

is successful, then s/he may also be awarded reasonable appraisal, 

attorney, engineering, and other costs incurred. See 26 Pa. Cons. Stat. 

Ann. S 1-609. 

 7 
Pennsylvania law to obtain just compensation, we agree 

with the District Court that their takings claim is not ripe. 

Even if the plaintiffs' takings claim were ripe, the 

defendants' actions do not amount to a taking. The 

plaintiffs argue the two liens amounted to a regulatory 

taking because the liens forced them to reduce the sale 

price for their properties and caused them financial 

distress. However, a regulatory taking occurs only when the 

government's action deprives a landowner of all 

economically viable uses of his or her property. See Lucas 

v. South Carolina Coastal Council, 505 U.S. 1003, 1019 

(1992). 

A municipal lien does not deprive the landowner of all 

economically viable uses of the property. Rather, a lien is 

merely "a charge upon property by which a lien creditor has 

the right to execute on that property in order to satisfy a 

debt or other obligation." Unity Sav. Ass'n v. Am. Urban Sci. 

Found., 337 Pa. Super. 470, 474, 487 A.2d 356, 358 

(1984). Under Pennsylvania law, the filing of a lien does not 

affect the debtor's use of that property until foreclosure. 

See Winpenny v. Krotow, 574 F.2d 176, 177 (3d Cir. 1978) 

(citing 53 Pa. Stat. Ann. S 7181). Though the liens in the 

case at hand may have prevented the plaintiffs from

entering into certain transactions, they did not foreclose all 

economically viable uses of the land. Therefore, we agree 

with the District Court that the imposition of the liens did 

not constitute a taking.3 

B. Due Process Claim 

The plaintiffs also allege that the imposition of the two 

liens, one for $25,000 and the other for $250,000, violated 

their due process rights under the Fourteenth Amendment. 

The District Court held that these claims were barred by 

the two-year statute of limitations for claims brought under 

_________________________________________________________________ 

3. We are compelled to note that we regard the imposition of the liens as 

of questionable propriety; at argument, counsel for the defendants 

attempted to explain why the Township resorted to the liens, but offered 

no legal authority to justify them. The liens imposed for anticipated nonpayment for municipal improvements may have violated the Municipal 

Lien Code, 53 Pa. Cons. Stat. Ann. SS 7101 et seq. 

 8 
42 U.S.C. S 1983. The court specifically ruled that the 

continuing violations doctrine did not apply because the 

defendants' last affirmative act occurred in 1993 with the 

imposition of the second lien. 

As the plaintiffs concede, the applicable statute of 

limitations for their S 1983 claims is two years. See Sameric 

Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 

(3d Cir. 1998). They argue, however, that the continuing 

violations doctrine should have been applied to toll the 

limitations period because the defendants engaged in a 

"continuing campaign of affirmative acts" that interfered 

with their substantive due process rights. Br. of Appellants 

at 23-24.4 

The continuing violations doctrine is an "equitable

exception to the timely filing requirement." West v. 

Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). 

Thus, "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 and Joiners of Am., 927 F.2d 1283, 1295 (3d 

Cir. 1991). 

In order to benefit from the doctrine, a plaintiff must 

establish that the defendant's conduct is "more than the 

occurrence of isolated or sporadic acts." West, 45 F.3d at 

755 (quotation omitted). Regarding this inquiry, we have 

recognized that courts should consider at least three 

factors: (1) subject matter -- whether the violations 

constitute the same type of discrimination, tending to 

connect them in a continuing violation; (2) frequency -- 

whether the acts are recurring or more in the nature of 

isolated incidents; and (3) degree of permanence-- whether 

the act had a degree of permanence which should trigger 

the plaintiff 's awareness of and duty to assert his/her 

_________________________________________________________________ 

4. The District Court noted that the plaintiffs appeared to assert both 

procedural and substantive due process violations. Plaintiffs do not 

argue on appeal that their procedural due process rights were violated, 

so we will limit ourselves to the substantive due process claim. 

 9 
rights and whether the consequences of the act would 

continue even in the absence of a continuing intent to 

discriminate. See id. at 755 n.9 (citing Berry v. Board of 

Supervisors of Louisiana State Univ., 715 F.2d 971, 981 

(5th Cir. 1983)). The consideration of "degree of 

permanence" is the most important of the factors. See 

Berry, 715 F.2d at 981. 

The continuing violations doctrine has been most 

frequently applied in employment discrimination claims. 

See, e.g., West, 45 F.3d 744; Bronze Shields, Inc., v. New 

Jersey Dept. of Civil Serv., 667 F.2d 1074, 1081 (3d Cir. 

1981); Jewett v. Int'l Tel. and Tel. Corp., 653 F.2d 89, 91 

(3d Cir. 1981). However, this has not precluded the

application of the doctrine to other contexts. See Brenner, 

927 F.2d 1283 (applying the doctrine to a claim brought 

under the National Labor Relations Act); Centifanti v. Nix, 

865 F.2d 1422, 1432-33 (3d Cir. 1989) (applying the

doctrine to a procedural due process claim brought under 

S 1983). 

At issue in this case is whether this equitable doctrine 

should be applied to toll the statute of limitations for the 

plaintiffs' substantive due process claim.5 The plaintiffs 

_________________________________________________________________ 

5. After oral argument, we requested letter briefs from the parties to 

address, inter alia, the issue of the applicability of the continuing 

violations doctrine to substantive due process claims generally. The 

submissions of both parties were comprehensive and we express our 

appreciation. Plaintiffs argued that our decision in Sameric Corp. of 

Delaware v. City of Philadelphia, 142 F.3d 582, 599-600 (3d Cir. 1998), 

accepted that the continuing violations doctrine could be applied to 

substantive due process claims but merely held that the evidentiary 

record did not support its application to the facts of the case. The 

Township disputed this interpretation of Sameric and argued that the 

doctrine should not be extended to apply to substantive due process 

claims. 

After consideration of the jurisprudence on the continuing violations 

doctrine, we do not find it necessary to adopt a per se rule of its 

applicability to substantive due process claims. Most importantly, the 

doctrine is an equitable one and requires a factual analysis that will be 

different for each case. Therefore, we will limit ourselves to whether the 

continuing violations doctrine should apply to the plaintiffs' substantive 

due process claim in the case at hand. 

 10 
appear to offer two theories for application of the

continuing violations doctrine here. First, they argue that 

the two municipal liens were continuing violations of their 

substantive due process rights until they were either lifted 

or expunged. Specifically, the $25,000 lien remained in 

effect until July 13, 1998, when it was expunged by a 

bankruptcy judge. The $250,000 lien was in place until 

July 1, 1997 at the earliest, when Eastgate negotiated its 

bankruptcy reorganization plan which included a $30,000 

payment to the Township for settlement of that lien. 

Therefore, according to the plaintiffs, their substantive due 

process claim was timely raised because their complaint 

was filed on June 25, 1999. 

We disagree with the plaintiffs' interpretation of a 

continuing violation and therefore reject this theory. The 

focus of the continuing violations doctrine is on affirmative 

acts of the defendants. See Delaware State College v. Ricks, 

449 U.S. 250, 258 (1980); Sameric, 142 F.3d at 599; 287 

Corporate Center Assoc. v. Township of Bridgewater , 101 

F.3d 320, 324 (3d Cir. 1996). 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. 

The cases cited by the plaintiffs do not require a different 

result. In United States v. Dickinson, 331 U.S. 745 (1947), 

a landowner brought a claim against the federal 

government seeking compensation for flooding of lands that 

had been authorized by the government. The government 

argued that the claim was time-barred but the Supreme 

Court disagreed. The Court held that the flooding was a 

continuous event and therefore the limitations period began 

to run when the flooding had stabilized, rather than when 

the flooding first began. See id. at 749. Dickinson was a 

unique situation in which the physical taking of property 

was not complete until the flooding had stabilized. We have 

previously declined to extend its holding to toll the running 

of a limitations period for a substantive due process claim, 

see 287 Corporate Center Assoc., 101 F.3d at 324, and we 

similarly decline to extend its holding here. 

The plaintiffs also cite to the decision in Gordon v. City of 

Warren, 579 F.2d 386 (6th Cir. 1978). In that case, a 

 11 
developer had been prevented from completing construction 

of an apartment complex by a city ordinance that was later 

held to be unconstitutional. The Court of Appeals held that 

the developer's subsequent takings claim was not timebarred because the alleged wrong was the "continuing 

course of action which made it impossible for the plaintiffs 

to enjoy the full use of their property." Id. at 391. 

The Sixth Circuit has since declined to follow Gordon, see 

Kuhnle Bros. v. County of Geauga, 103 F.3d 516, 521 n.4 

(6th Cir. 1997), as have other courts of appeals, see, e.g., 

Ocean Acres Ltd. v. Dare County Bd. of Health, 707 F.2d 

103, 106 (4th Cir. 1983). In Ocean Acres, the Fourth 

Circuit reaffirmed that "[a] continuing violation is 

occasioned by continual unlawful acts, not continual ill 

effects from an original violation." Id. (quotation omitted). 

This conforms with our understanding of the continuing 

violations doctrine, see Sameric, 142 F.3d at 599, and we 

see no reason to depart from it. Therefore, we reject the 

plaintiffs' first theory for application of the continuing 

violations doctrine. 

The plaintiffs' second theory is that the Township 

engaged in a campaign of harassment against them that 

extended beyond the imposition of the two municipal liens. 

In particular, they identified the following five acts that fell 

within the two-year limitations period in their 

Memorandum of Law in Opposition to the Motion to 

Dismiss submitted to the District Court: 

(1) On July 1, 1997, as part of Eastgate Corporation's Plan 

 of Reorganization in bankruptcy, the parties negotiated 

 a $30,000 payment from Eastgate to the Township in 

 return for a discharge of the $250,000 municipal lien 

 imposed on the Palmer Business Park property. 

 Although this $30,000 payment was made, the 

 Township later requested an additional payment of 

 $23,000 before the lien was discharged. This additional 

 request allegedly violated 11 U.S.C. S 1141.

(2) In August 1997, the Township required lot purchaser 

 Lone Star Steakhouse to build a driveway to the Tic- 

 Toc Diner as a condition to issuing a building permit. 

 As a result, Eastgate was compelled to reduce the price 

 12 
 of the lots it was selling to Lone Star Steakhouse by 

 $25,000. 

(3) In May 1998, the Township required Eastgate to fund 

 the installation of a stop light in or near Lot 11. 

 Consequently, Eastgate was compelled to reduce the 

 sale price of Lot 11 by $75,000. 

(4) In January 1999, the Township required purchasers of 

 Lot 11 to pay $5,000 to the Township for the

 installation of stoplights as a condition of issuing 

 building permits. 

(5) On February 13, 1999, the Township sent Eastgate a 

 bill for engineer fees related to a September 1994 

 inspection of the Palmer Business Park property. 

 Eastgate claimed it was not responsible for this bill, 

 which was sent over five years after the inspection took 

 place. 

App. at 155-156. In addition, the plaintiffs argued before us 

that the Township has continued to harass them by filing 

a petition to the Court of Common Pleas of Northampton 

County on December 15, 2000 requesting further 

improvements. The plaintiffs contend that they should be 

allowed to amend their complaint to include these and 

other allegations. 

Although these acts fall within the two-year limitations 

period, we must consider whether they are "isolated, 

intermittent acts" or part of a "persistent, on-going pattern." 

West, 45 F.3d at 755. In doing so, we will consider the 

three factors identified in Berry v. Board of Supervisors of 

Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983). 

First, with regard to the "subject matter" of the violations, 

we note that these acts, except for the first one, appear to 

be unrelated to the imposition of the liens. The plaintiffs 

attempt to link these acts by characterizing them as a 

general interference with property rights. However, our 

substantive due process jurisprudence has always focused 

on the particular acts of the defendant, and not a general 

interference with property rights. See, e.g., Woodwind 

Estates, Ltd. v. Gretkowski, 205 F.3d 118, 125 (3d Cir. 

2000) (considering the alleged delay of permit approval for 

subdivision plans); Blanche Road Co. v. Bensalem 

 13 
Township, 57 F.3d 253, 268 (3d Cir. 1995) (considering the 

intentional blocking or delay of the issuance of permits for 

reasons unrelated to the merits of the permit application). 

Indeed, the plaintiffs argued at oral argument that each of 

these acts was an independent violation of their substantive 

due process rights and therefore individually actionable. If 

so, then the appropriate course of action was to bring a 

new S 1983 claim with respect to these alleged harassments 

instead of trying to tack them on to their existing claim. 

In this respect, this case is not unlike the situation that 

was before us in Sameric, 142 F.3d 582. In that case, a 

theater owner alleged substantive due process violations 

against the City of Philadelphia and various city officials for 

improperly designating the theater as an historic building 

and improperly denying a permit to demolish the theater. 

Although the denial of the demolition permit occurred 

outside the applicable two-year statute of limitations, the 

owner argued that the statute should be tolled because the 

denial of the permit was related to the historical 

designation and the owner had continued to dispute the 

historical designation in state court. We rejected this 

argument, noting that the denial of the permit gave rise to 

an independent cause of action and should have been

pursued as such. Thus, we held that the continuing 

violations doctrine could not be applied to revive the claim 

involving the permit denial. See id. at 598-600. Because the 

case at hand is similar to the situation in Sameric, the first 

Berry factor weighs against finding a continuing violation. 

With regard to the "frequency" of the acts, we note that 

courts have never set a specific standard for determining 

how close together the acts must occur to amount to a 

continuing violation. The plaintiffs assert on appeal that 

defendants engaged in a campaign of harassment that

began as early as 1987, became exacerbated with the

imposition of the liens in October 1992 and March 1993, 

and continued throughout the mid and late 1990s. Many of 

the alleged harassing acts deal with routine dealings 

between a land developer and a board of supervisors that 

would not amount to violations of substantive due process. 

In any event, this would be a different due process claim 

than that pled in the complaint, which was confined to the 

 14 
imposition of the liens. The type of acts that would satisfy 

the "frequency" factor of the Berry inquiry must at least be 

acts of substantially similar nature to those which were the 

basis of the original claim. 

Turning to the third Berry factor -- whether the acts had 

a "degree of permanence" which should trigger the 

plaintiff 's awareness of and duty to assert his/her rights -- 

we must consider the policy rationale behind the statute of 

limitations. That is, the continuing violations doctrine 

should not provide a means for relieving plaintiffs from 

their duty to exercise reasonable diligence in pursuing their 

claims. See Nat'l Adver. Co. v. City of Raleigh , 947 F.2d 

1158, 1168 (4th Cir. 1991); Ocean Acres, 707 F.2d at 107. 

In the case at hand, the plaintiffs were aware of the 

wrongfulness of the liens when the liens were imposed in 

1992 and 1993. Therefore, the plaintiffs should have 

brought a claim to strike the liens in state court or filed a 

S 1983 claim within the applicable limitations periods. To 

allow the plaintiffs to proceed with their substantive due 

process claim now would be unfair to the Township and 

contrary to the policy rationale of the statute of limitations. 

See United States v. Richardson, 889 F.2d 37, 40 (3d Cir. 

1989) ("Limitations periods are intended to put defendants 

on notice of adverse claims and to prevent plaintiffs from 

sleeping on their rights."). Therefore, this factor strongly 

weighs against applying the continuing violations doctrine. 

Balancing the equities of the case, we conclude that the 

continuing violations doctrine does not relieve plaintiffs 

from the statute of limitations for the substantive due 

process claim. Therefore, we agree with the District Court 

that the substantive due process claim was untimely. 

C. Leave to Amend the Complaint 

We also conclude that the court did not abuse its 

discretion in denying plaintiffs leave to amend their 

complaint. Although Fed. R. Civ. P. 15(a) states that leave 

to amend "shall be freely given when justice so requires," 

we have held that leave to amend need not be granted when 

amending the complaint would clearly be futile. See Maio, 

221 F.3d at 500-01 n.19. It is evident that allowing the 

plaintiffs in the case at hand to amend their complaint 

 15 
would not have saved their takings claim. As for the 

substantive due process claim, we have held that the 

additional factual allegations offered in their Memorandum 

of Law in Opposition to the Motion to Dismiss did not 

constitute a continuing violation. Therefore, that claim 

would not be able to overcome the statute of limitations, 

and any amendment of the complaint would have been futile.6 

III. 

CONCLUSION 

For the reasons set forth above, we will affirm the District 

Court's order dismissing plaintiffs' action. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

6. The plaintiffs also contend in their brief that the District Court 

erred 

in characterizing their complaint as already amended. While the court 

may have erred in this regard, we do not see this error as warranting a 

reversal. 

 16