NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1138

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THOMAS R. WHITTAKER; CHRISTY L. WHITTAKER; EDNA J. HAMILTON,

as Executrix of the Estate of David C. Hamilton, 

 Appellants

v.

COUNTY OF LAWRENCE; TOWNSHIP OF NESHANNOCK; 

LAWRENCE COUNTY ECONOMIC DEVELOPMENT CORPORATION; 

REDEVELOPMENT AUTHORITY OF LAWRENCE COUNTY; 

STEVE J. CRAIG; DANIEL J. VOGLER; FRANK TELESZ; JAMES GAGLIANO, JR.; 

DENNIS F. ALDUK; JOSEPH CAMINITI; RYAN KEGEL; JON NATALE; 

GALE E. MEASEL, JR.; ROBERT DEL SIGNORE, SR.; LINDA NITCH

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2:04-cv-1092)

District Judge: Hon. Nora Berry Fischer

Submitted Under Third Circuit LAR 34.1(a)

May 13, 2011

Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

(Filed: July 15, 2011)

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OPINION

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CHAGARES, Circuit Judge.
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Thomas Whittaker, Christy Whittaker, and Edna Hamilton (the “Property 

Owners”) appeal from the District Court‟s dismissal of their case. For the reasons set 

forth below, we will affirm.

I.

Because we write solely for the benefit of the parties, we will only briefly recite 

the facts. The Property Owners all owned parcels of property within “Millennium Park,” 

an area of approximately 530 acres that had been identified for industrial development by 

the Lawrence County Economic Development Corporation (“LCEDC”), which is a 

private non-profit corporation formed by Lawrence County. When a potential buyer 

became interested in the Property Owners‟ land, the LCEDC attempted to purchase the 

property. These negotiations were unsuccessful, and the County then created the 

Redevelopment Authority of Lawrence County (“RALC”), which had the authority to 

condemn property. Declarations of Taking were filed in the Lawrence County Court of 

Common Pleas against the Property Owners‟ parcels on July 29, 2004.

Knowing that the condemnation of their property was imminent, the Whittakers 

filed an action in federal court under 42 U.S.C. § 1983 on July 23, 2004, and Hamilton 

filed a similar action on July 27, 2004. The defendants filed motions to dismiss these 

cases, but the District Court stayed these actions pending the outcome of the eminent 

domain proceedings in Pennsylvania state court as well as the United States Supreme 

Court‟s decision in Kelo v. City of New London. The Whittakers subsequently filed a 

second suit naming additional defendants, and that action was consolidated with their 
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previous action and the Hamilton suit in August of 2005. On October 15, 2007, the 

District Court lifted the stay on the federal action and ordered that a single amended 

complaint be filed, containing all of the parties‟ allegations. The case was then stayed 

again pending the outcome of the Pennsylvania adjudication of the takings. 

On December 22, 2008, the Pennsylvania Commonwealth Court, sitting en banc, 

concluded that the RALC improperly condemned the property at issue. The District 

Court reopened the case, and a renewed motion to dismiss was filed. The District Court 

granted the motion on December 7, 2009, concluding that the Property Owners had failed 

to state a claim on any of their federal causes of action, and declining to exercise 

supplemental jurisdiction over the remaining state law claims. The instant appeal 

followed.

II.

The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 

and 1367, and this Court has jurisdiction under 28 U.S.C. § 1291. We exercise de novo 

review of a District Court‟s dismissal under Federal Rule of Civil Procedure 12(b)(6). 

Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).

III.

The majority of the Property Owners‟ argument focuses on their contention that 

the District Court erred in reading Kelo as providing a national standard for what 

constitutes a “public use” for purposes of the Fifth Amendment‟s takings clause. The 

Fifth Amendment‟s takings clause provides “nor shall property be taken for public use, 

without just compensation,” and the Property Owners argue that in determining whether 
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something constitutes a public use, we must look to state law on the subject. They rely 

heavily on the fact that the Pennsylvania Commonwealth Court, in In re Condemnation 

by Redevelopment Authority of Lawrence County, 962 A.2d 1257 (Pa. Commw. Ct. 

2008), held that Pennsylvania law does not permit eminent domain to be used to foster 

economic development. According to the Property Owners‟ reading of Kelo, the Fifth 

Amendment permits economic development to constitute a public use, but courts should 

look to state law to determine whether that state has made such a use a public use. We 

disagree.

The question facing the Supreme Court in Kelo was whether the Fifth 

Amendment‟s takings clause permitted economic development to constitute a public use. 

The Court concluded that economic development could constitute a public use, stating 

that “[p]romoting economic development is a traditional and long-accepted function of 

government.” Kelo v. City of New London, 545 U.S. 469, 484 (2005). The Court went 

on to “emphasize that nothing in our opinion precludes any State from placing further 

restrictions on its exercise of the takings power,” and noted that “[t]his Court‟s authority . 

. . extends only to determining whether the City‟s proposed condemnations are for a 

„public use‟ within the meaning of the Fifth amendment to the Federal Constitution.” Id.

at 489-90. 

We do not believe that this language requires that we look to what limitations 

various states impose on their own eminent domain powers to determine whether the 

taking at issue violates the Fifth Amendment. Instead, we find the Court‟s statement in 

Kelo to be clear: a taking for purposes of economic development satisfies the Fifth 
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Amendment‟s public use requirement. Were we to accept the Property Owners‟ 

argument and allow states to define what constitutes a public use for purposes of the Fifth 

Amendment, we would be permitting the states to limit not only their own actions, but 

also the ability of the federal government to exercise its eminent domain power. Rather 

than doing this, we will take Kelo at its face value, and interpret it as providing a federal 

constitutional floor for the definition of a public use that allows states to build upon this 

floor should they choose to do so. Although we need not resolve the question of whether

the conduct in this case violated Pennsylvania‟s state laws or constitution, we do hold 

that such conduct does not violate the Federal Constitution and we will affirm the District 

Court‟s dismissal of the Property Owners‟ Fifth Amendment takings claim. 

The Property Owners next argue that the District Court erred in dismissing their 

substantive due process claim. In reviewing the conduct of executive officials, only 

conduct that “shocks the conscience” rises to the level of a substantive due process 

violation. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Whether conduct 

shocks the conscience is a question of law for the court to decide. Benn v. Universal 

Health Sys., Inc., 371 F.3d 165, 174 (3d Cir. 2004). The Property Owners assert that the 

Lawrence County Commissioners authorized the use of eminent domain power despite 

no indication of blight, as required by Pennsylvania‟s Urban Redevelopment Law, and 

that this deliberate misuse of state authority shocks the conscience. 

In dismissing this claim, the District Court appears to have relied on the fact that 

there was no conduct alleged that violated the Federal Constitution, and this Court‟s 

statement that “„[a] bad-faith violation of state law remains only a violation of state 
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law.‟” Appendix (“App.”) 51 (quoting United Artists Theatre Circuit, Inc. v. Twp. of 

Warrington, 316 F.3d 392, 402 (3d Cir. 2003)). We agree with the policy embodied in 

that statement, even if the District Court slightly overstated the principal. First, an 

underlying constitutional violation is not required to state a substantive due process 

claim, and some violations of state law may “shock the conscience.” This, however, does 

not mean that every violation of state law is “constitutionalized” through the application 

of the substantive due process clause, and the District Court was properly concerned with 

preventing this provision from turning into a broad authorization to review state actors‟ 

compliance with state law. On several occasions, this Court has implied that a violation 

of state law will constitute conscience shocking behavior when it contains “allegations of 

corruption, self-dealing, bias against an ethnic group, or additional facts that suggest[] 

conscience-shocking behavior.” Chainey v. Street, 523 F.3d 200, 220 (3d Cir. 2008); see 

also Eichenlaub v. Township of Indiana, 385 F.3d 274, 286 (3d Cir. 2004). In other 

words, a state official‟s failure to follow state law does not, by itself, shock the 

conscience in the absence of additional facts. No such additional facts are presented in 

this case; instead, the Property Owners simply allege that the defendants did not follow 

state law in taking their property. While this certainly is not conduct without a remedy, 

the remedy is not provided by the Federal Constitution‟s substantive due process clause. 

For this reason, we will affirm the District Court‟s dismissal of the substantive due 

process claim. 

The Property Owners also allege that the District Court erred in dismissing their 

equal protection claims. In bringing this claim, they proceeded as a “class of one,” 
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arguing that the action in this case amounted to “intentional and arbitrary discrimination” 

without a rational basis. Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The Property 

Owners assert that because the property was not blighted, there was no legitimate 

government interest in exercising eminent domain over the property and that the 

defendants acted irrationally in condemning it.

We again disagree with the Property Owners‟ argument. Much as the Federal 

Constitution‟s definition of public use does not depend on state law, we do not refer to 

state law in establishing whether the government has a legitimate interest in taking the 

property. States have a legitimate government interest in exercising their eminent 

domain power for the public use, which, for purposes of the Federal Constitution, 

includes economic development, as discussed above. The Property Owners‟ argument 

that there was no legitimate government interest in this case, therefore, is without merit. 

Further, there was no arbitrary singling out of the properties in question in the present 

case. Instead, the properties were chosen because they were the only properties not 

purchased within the Millennium Park area, meaning that all similarly situated 

individuals were treated similarly in this case. In sum, the state action both advanced a 

legitimate government interest and was not discriminatory. That state law may place 

further limitations on the use of eminent domain power does not cause a federal equal 

protection problem, and we will affirm the District Court‟s dismissal.

The Property Owners also find error in the District Court‟s treatment of their 

conspiracy claims, its discussion of qualified immunity, and its dismissal of their state 

law claims. Because we have not found any underlying error in the District Court‟s 
8

treatment of the substantive claims, however, we need not address any of the Property 

Owners‟ arguments on these issues. A conspiracy to engage in conduct that does not 

amount to a constitutional violation is not a violation of § 1983, and no immunity is 

necessary if there was no unconstitutional act. Further, as we agree that all of the federal 

claims were properly dismissed, the District Court did not err in declining to exercise 

supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3). We 

will, therefore, affirm the District Court‟s treatment of all of these issues as well.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.