Herr v. Pequea Township

HERR, Individually E. Marvin Millwood Associates, Park

T/A

PEQUEA TOWNSHIP; Virginia K.

Brady, Individually and in her Official

Capacity; Groff, Bruce G. Individual-

ly Capacity; his Official Mar- Hughes,

tin P. Individually Capacity

Official Herr, Marvin Appellant.

E.

No. 00-2473.

United States Court Appeals,

Third Circuit.

Argued May 2001.

Dec. Township’s plan new Posner, argued that Jeffrey P. (Argued), Edward M. Reath, Drinker, After Herr secured Wallack, Phila- be enforced. Biddle & should directing the PA, Appellant. DER Attorneys for an order from the delphia, plan facilities to amend its sewer Township Marks, O’Brien, (Argued), Kevin J. to sewer service provide municipal to so as O’Neil, Philadelphia, Courtney, O’Brien & per- a land use and obtained property his PA, Attorney Appellees. for LCPC, Township took mit from the (cid:127) SCIRICA, Before: GARTH proceedings further position STAPLETON, Judges. Circuit approval all conditions of the LCPC’s year that the five fulfilled and had been THE COURT OPINION OF expired comple- before grandfathering STAPLETON, Judge: Circuit Ultimately, Herr se- project. tion of the authority go to for- necessary Herr, cured the developer, ap- a land E. Marvin park. to with his industrial summary judgment ward peals grant and its Township (“Township”) that the defendants’ conduct Herr claims Bruce Virginia Brady, supervisors, three development respect proposed to his (collectively, Groff, Hughes and Martin by strong de- throughout motivated was “defendants”), rights civil action. and re- agricultural land preserve sire to substantive alleges that his Herr Township. in the development strain year an eleven violated process due was claim, he has tendered of this support its officers Township campaign that the individu- tending to show evidence development of delay and obstruct his run for office on “anti- al defendants had park. an industrial and that their development” platforms plan a land use adopted The defendants ordinance and zoning of a new adoption plan part and a sewer facilities based to make plan facilities was intended sewer development industrial their view developers for to secure it more difficult Township should be restricted. within the stresses, Herr approvals projects. of their Herr, years, eleven who Over the next zoning that the new ordinance example, park and to construct an industrial wished the land zoned industrial reduced County to the Lancaster applied who had percent. (“LCPC”) ap- Planning Commission to the plan prior of a subdivision proval the defen points While sought the plans, date of these effective zoning ordi adoption of the new dants’ develop- necessary authorization for his as evidence of their plan nance and sewer LCPC, Department of ment from the bias,” we do not under “anti-development (“DER”), the Envi- Environmental Review the defendants’ him to contend that stand (“EHB”), the Hearing Board ronmental violated respect plans to those actions with (“ZHB”), and the Zoning Hearing Board Deci process. due substantive Township participated courts. The zoning adopt or amend sions on whether of these bodies. proceedings before each municipal plans services ordinances and project that Herr’s acknowledged itWhile that must survive due legislative are ones land prior under the grandfathered “the process review unless it within five plan completed if he use legitimate had no reason body could have that he had years, insisted Resources, Inc. v. decisions.” Pace fоr its services right municipal no sewer vested Township, 808 plan Shrewsbury prior under sewer facilities (3d Cir.1987). Gretkowski, to limit The desire 205 F.3d 124-25 Cir.2000) legitimate is such a reason. (holding delay of permitting Id. community because of resistance to proposed low housing project income

Rather, Herr claims that the defendants provided jury awith basis from which it him conspired prevent securing could reasonably find that decision maker necessary approvals gov- from other acted in bad faith or due to an improper agencies, delay ernment or to receipt violating developer’s motive substantive approvals project of those until his would process rights); due DeBlasio v. Zoning longer grandfathered no be under the pri- (3d Adjustment, Bd. 53 F.3d 601-02 or In support ordinance. of this conten- Cir.1995) (holding that denial permit tion, regards he submitted what he aas based on decision personal maker’s finan “smoking gun” letter from Dr. Alan Peter- interest, cial proven, if establishes a viola son, the Pequea Township Chairman of the tion of the to be free from arbitrary Council, Environmental Advisory to the action); capricious government Township’s legal counsel February dated Corp. Blanche Rd. Township, Bensalem 19,1994. part: That letter states in (3d Cir.1995) 57 F.3d (holding 267-68 Only Virginia Brady and I in the town conspiracy delay permits for indus (Do ship following: know the not state park political trial for reasons unrelated to this back township to the man of an application merits is sufficient to ner). lots, The owner must sell the then process establish a substantive due viola all development plans land must ap be tion); Parkway Garage, Inc. v. City proved by they or become noncon ki Philadelphia, 5 F.3d 696-97 Cir. forming lots in the Ag. District. Obvi 1993) (holding that jury could reason (if ously longer we can stall we can’t ably infer motive when lease was win this with the [Department of Envi allegedly terminated upon based decision Review]), ronmental the better. interest); maker’s economic Bello v. Walk App. at 374-75. er, (3d Cir.1988) 840 F.2d 1129-30 Herr, According to the defendants’ con- (holding that a municipal corporation’s de (1) spiracy resisting consisted of before the nial of a building permit partisan politi LCPC, DER, Board, and the personal cal or reasons unrelated to the courts Herr’s efforts to secure the case, if proven, merits of establishes a (2) proceed; instructing personnel its own violation). process substantive due Herr carefully proposal scrutinize Herr’s that, correctly points out while the ulti identify any possible problems; order to mate issue before the LCPC the other (3) LCPC, communicating with the per bodies was whether to DER, Commission, the State Fish mit a park, new industrial resolution of Commission, gov- State Game and other properly issue turned on whether his agencies voicing ernmental various con- development met the criteria established proposed cerns about the project. by opposition, law. The defendants’ ac on a relies line of our cases which Herr, cording was motivated a deter township hold that a or agency other act- stop mination to without ing under color of state law denies a land- regard to whether it met those criteria. owner substantive due if it denies delays permit or action on his application Unlike the defendants the cases cited Herr, however, reasons unrelated to the merits of the and its Estates, application. supervisors See Woodwind Ltd. were not authorized to issue County, Pennsylva Township, Lancaster park. The for Herr’s industrial permits 9, 1989, authority. he learned of a By nia. October alone had LCPC that the defendants sub- under which the plan claim is thus not land use proposed making process by taking a decision changed verted land be so zoning of his would It into account. considerations irrelevant use. On De permit only agricultural contested the defendants is rather 5, 1989, Herr submitted to cember authorized to re- before the bodies issues plan to construct LCPC subdivision permitting issues because solve various (“Mill property park industrial on this delay approv- they wished to defeat “Millwood”). At Park” or wood Industrial bodies. This project by those al of Herr’s plan, prop the time he submitted materially from the is different claim industrial, existing and the erty was zoned progeny. and its Bello claims asserted (“the plan sewage 1971 fa sewage facilities from county-wide plan pro that there is evidence plan”) We conclude was a cilities a trier of fact could conclude which pursuant to the Penn viding public sewers 537”). conduct was Township’s challenged (“Act sylvania Sewage Facilities Act stop to Herr’s devel- by motivated a desire rejected the considered and The LCPC time, At the same we conclude opment. twice, and Herr re park plan industrial from which a there is nо evidence Ultimately, it twice. the LCPC submitted Town- could conclude trier of fact approval conditional granted preliminary positions or otherwise ship took frivolous 9,1990, uncon preliminary on October be- unreasonably delayed proceedings 25, February 1991. approval ditional on various state bodies. We hold fore the was filed plan After Herr’s subdivision in proceed- a township participates where ap- the LCPC but several months before agencies ings before other 22, August on provals, Pequea Township, to resolve issues like those here authorized 1990, Township map a new to adopted township supervi- and its presented, County’s compre- conform with Lancaster delay subject are not to for sors plan. map, On the new the land hensive solely be- occasioned those proceedings park was proposed where Herr’s industrial was motivated participation cause their was rezoned from industrial to be situated delay project for prevent a desire to law, Pennsylvania to Under sought.1 agricultural. approval which years Herr was allowed five from the date I. complete his preliminary approval non-conforming development.2 Following develop approximately sought adoption zoning, Township of the new of land that he owns 45 acres Communications, Inc., Cable 858 correctly notes that the Town ner-Amex 1. The dissent 1075, (5th Cir.1988) ship supervisors (quoting asked us to and its Laird F.2d Co., 508, judgment (5th of the District Court affirm Oil 770 F.2d Cir. Shell ground presents that the evidence no ma Director, 1985)); Mining Coal Co. v. Elliot they dispute terial of fact as to whether 616, (3d Cir.1994). n. 16 progeny and its motive. If Bello controlling authority mo here and were law, Pennsylvania develop- 2. once Under issue, legally we would tive were the relevant submitted, zoning regu- proposal ment pressed uphold find ourselves hard subject change place are not lations in However, judgment. "when District Court’s (with years respect proposal) for five to that [legally] judgment a district court is approved. preliminary proposal is after the correct, may be affirmed for reasons 10508(4)(i). See 53 Pa.C.S.A. given by and not advanced to it.” the Court Production, Inc. v. War- Video International began to revise its sewage plan facilities September 28, On 1993, the gave LCPC comport with its new land conditional planning final approval to a final plan for 3, 1992, scheme. On June Millwood that had been submitted on Au- 3, (“the gust repealed prior sewage plans August adopted 1992 plan”). approval was sewage plan. new conditioned on The new Herr’s provided plan satisfaction of over forty conditions for the includ- public extension of sewers into ing his securing approval for his proposed areas of the Township designated for de- sewage disposal. On February velopment but not into designated areas the DER granted private Herr’s request agricultural use. Accordingly, the per- and issued an order directing the Town- mitted sewage disposal for the area in ship to revise its 1992 sewage plan. which Millwood was situated changed public sewers to on-lot disposal sys- Sevеral years of litigation ensued. On tems. As required, March the Township submit- the EHB reversed the ted its decision of sewage the DER. In plan facilities response the DER to this decision, the DER approval denied private under Act request 4, on April 1994. Then Herr ap- 30, July 1992, On Herr requested that pealed, first to the EHB and next to the the Township amend its sewage facilities Commonwealth Court. 31, 1996, On May plan provide so as to for municipal sewer the Commonwealth Court reversed the service to Millwood. A little over a month decision, EHB’s Herr, found favor of later, 2, on September request and remanded the case for further pro- was denied.3 Herr then filed a “private ceedings. remand, On the EHB ultimately request” with the DER under 35 Pa. Cons. granted summary judgment on the sewage § Stat. Ann. seeking 750.5 an requir- order disposal issue. The Township and the ing the Township to amend its sewage plan DER both petition filed a for reconsidera- as it had requested been to do.4 At the Board, with tion which peti- denied the time of private request, Depart- tion, and then a for review with ment was still reviewing the plan that the Court, which, Commonwealth on July Township had submitted. 10, 1998, affirmed the Board’s decision. 3. Section regulations, 71.53 the DER 71.53(f) (1989). Pa.Code§ as effect, then in provided: (f) 750.5(b), effect, 4. Section municipality A as then may provided: adopt refuse proposed revision to plan their official Any person who is a property resident or reasons, new development land including, owner in a municipality may request the de- but not to: limited partment municipality order the to revise (1) plan The technically not or adminis- plan its official person where said can show tratively implemented. able be that the plan official inadequate to meet the (2) Present sewage and future disposal property resident’s or sewage dispos- owner's area, needs of the remaining acreage or delin- request al may needs. only Such be made eated lots are adequately not addressed. prior after a upon demand (3) and refusal plan The is not with consistent munici- municipality to plan. so revise its official The pal ordinances, land plans use subdivi- request department to the shall sion contain a de- plans ordinances other ordinances or scription of the area of the municipality for controlling development. land use or (4) question plan The is not enumeration of all consistent with reasons the com- prehensive sewage program person advanced said municipal- of the show official ity plan's plan. inadequacy. contained in the person official give Such shall (5) plan does not consistency meet notice to municipality request of the to the requirements (a)(5)(i)-(iii). §of 71.21 department. Herr, development the final land cordation of 716 A.2d Township v. Township appealed then (Pa.Commonw.Ct.1998). plan. The Pleas, to the Court of Common decision litigation,” the the “sewer Throughout (1) three that Herr failed to meet arguing specify maintained that the law Township by the imposed conditions of the other applicable to ing requirements the sewer conditionally approved when LCPC рlan. the 1992 sewer the Millwood site was (2) plan; and that Herr’s August 1992 view, position it took the support of this pre- rights application vested (1) effective plan became the 1992 expired ordinance had be- existing zoning on October approval DER

without years elapsed since cause five 71.32(c) 1992, pursuant to 25 Pa.Code preliminary of his approval lacked (1989),5 accordingly DER and the had been and no valid extension plan (2) order; and original authority for its by the granted LCPC. years for five de grandfathering statute Meanwhile, recordation, Herr be- after at the time velopments pending approval park. industrial gan construction of his apply to sewer zoning change of a did construction, sign During Herr erected and, Herr had no vested accordingly, plans began of lots and exca- advertising the sale service. The Board public sewer zoning officer issued Township the 1992 vation. A Township with the agreed notice because he 1992. Herr an enforcement effective on October plan became that Herr had violated the Town- not reach believed Court did The Commonwealth zoning ordinance for excavation ship’s 1992 agree but did the merits of issue advertising zoning permit without a grandfathering pro zoning without a premises the sale of the give ordinances did not zoning vision for the enforcement permit. appealed un Herr sewer services public Herr Zoning Hearing Board v. notice to the Pequea Township plan. der the 1971 (Pa.Com (“ZHB”), Township’s that the 1980 Herr, 678, arguing A.2d 684 716 monw.Ct.1998). applied rather than the zoning ordinance The Court nevertheless that, ZHB zoning The held ground ordinance. in Herr’s favor on decided that, rights were even if Herr’s substantive proposal if is inconsis even a landowner’s zoning ordi- by the earlier municipal sewer determined applicable tent with the nance, procedural comply he must require DER authorized to its plan, the ordinance, includ- of the new showing provi requirements adoption upon a appeal- Herr permit requirements. its municipal plan ing are “inade sions of the of Common Pleas. the needs of the landowner. ed to Court quate” to meet wrote at some The Commonwealth Court appeals The to the Court Common each of the six contentions raised length on consolidated. On December Pleas were Township. by the DER and the 29, 1999, in favor of the Court decided 1998, re- 29, against Township. and With once all the sew- Herr On November Township, settled, by the issues raised gard the LCPC deter- age issues were did not held that the LCPC remaining all of the the Court mined that Herr met granting discretion approval permitted re- abuse its conditions Department approved, unless the informs provides: 5. This section prior municipality to the end of 120 Upon Department's failure to act on a necessary to days that additional time is complete plan or revision within official submission, complete The additional time its review. days plan the official of its days. may not exceed 60 plan will be considered or official revision extension allowing recordation of his ment” including agencies administrative plan. regard With by thе issue raised and the courts. Motor Trans- California Herr, the Court found that the zoning port Trucking Unlimited, Co. v. 404 U.S. 508, requiring permit 510, ordinance for excava- 609, 92 S.Ct. 30 L.Ed.2d 642 (1972). tion and advertising was be- It inapplicable applicable made to the states cause was substantive by rather than proce- the Fourteenth Hague Amendment. dural nature and thus adversely and Committee Org., 496, Indus. 307 U.S. improperly affected Herr’s (1939). substantive 59 S.Ct. 83 L.Ed. 1423 rights. The Township appealed the Court protection it affords thus applies both to of Common Pleas decision to the petitioning Common- agencies state to petition- Court, wealth which affirmed on January ing state Moreover, courts. protec- tion extends only to petitioning for affirmative relief but also to petitioning in

II. opposition to applications for relief oth- ers. Armstrong Center, Surgical Inc. v. agree We with the District Court that Armstrong County Mem. Hosp., 185 F.3d Herr had a property interest Millwood (3d Cir.1999) (holding that the First which was entitled to protection under Amendment right petition provides pro- “the substantive due element of tection for opposition competitor’s to a ap- the Fourteenth Amendment.” Herr v. Pe plication to the State Department of quea Township, 99-cv-199, No. at Health for a (E.D. Certificate of Necessity for a 2000). WL 1100848 July Pa. filed medical facility). Road, See Blanche 15; 57 F.3d at 268 n.

DeBlasio, 53 601. We turn thus While the right conferred the issue of whether Herr deprived the First and Fourteenth Amendments that property interest violation of sub does not provide an immunity absolute process. stantive due from liability for actions petition- based on ing activity, see Motor Trans- California III. 513-14, port, 609, U.S. at 92 S.Ct. With possible exceptions hereafter Supreme Court has held that liability such IV, addressed section injuries cannot be imposed the absence of a which Herr seeks redress arise from the finding position that the taken lacked delay occasioned the proceedings before reasonable basis. Real Professional LCPC, DER, EHB, the ZHB Investors, Estate Inc. v. Columbia Pic- and the Pennsylvania. courts of When Indus., Inc., tures 508 U.S. 113 S.Ct. recovery is sought against a participant in (1993), 123 L.Ed.2d 611 Columbia adjudicatory proceedings before state Pictures sued Professional Real Estate In- agencies and state courts based on its (“PRE”) vestors for copyright infringe- participation in those proceedings, funda ment. PRE filed a counterclaim under the mental implicated interests are that were Sherman Act and various charg- state laws not implicated in the situations before us ing that the copyright infringement suit in Bello and its progeny. Both the Consti part was a of a conspiracy monopolize tution and the provide common law protec and restrain trade. When Columbia Pic- tion for those who govern tures moved summary judgment based ment. on its constitutionally protected right

“[T]he [First peti- Amendment] PRE petition, argued that the copyright tion extends to departments all govern- of faith, suit had been i.e., instituted in bad (1983) suit to be (holding that for a civil and without to restrain trade brought

was must be both an infringe- enjoined, there ... belifef] an “honest Id. at and a part plaintiff claim meritorious.” motive on the mеnt suit). ac- Supreme Court basis for the S.Ct. lack of a reasonable immunity did knowledged petitioning that Moreover, in PRE Supreme Court on the institu- not extend to based holding that its was consistent stressed litigation or maintenance of “sham” tion traditionally afforded protection with the regarded could be litigation held that but activity under the common law: petitioning “objectively if base- only a it is as “sham” correctly held Appeals Court of [T]he less.” must constitute the litigation that sham two-part a definition now outline We that no pursuit of claims so baseless First, litigation. the lawsuit of “sham” realistically ex- litigant reasonable could objectively in the sense must be baseless to secure favorable relief. pect litigant could realis- that no reasonable cause to probable The existence merits. If tically expect success on the legal proceedings precludes institute objective litigant an could conclude finding to elicit that an antitrust defendant has reasonably the suit is calculated outcome, immun- The ‍​​‌​​‌​‌​‌​‌​‌‌​​‌​​‌‌​​​‌​​​​​​‌‌‌‌​​‌​​​​​​‌​‌‍notion engaged litigation. a favorable the suit is in sham ..., prem- cause, an claim ized antitrust understood and probable exception must fail. ised on the sham tort applied in the common-law objective- Only challenged litigation if requires wrongful proceedings, civil ly may a court examine meritless the defendant plaintiff prove litigant’s subjective motivation. Under an probable lacked cause to institute of our definition of part this second civil lawsuit and that unsuccessful sham, whether the court should fоcus on for an im- pressed defendant the action “an at- the baseless lawsuit conceals Probable proper, purpose. malicious the busi- tempt directly to interfere proceedings civil re- cause institute competitor,” relationships ness more than a be- quires “reasonable] no through the “use [of] is a chance that claim [a] there lie[f] to the outcome of opposed —as upon adjudication.” valid may be held competitive an anti process —as probable cause Because the absence U.S., weapon,” Omni tort, element of the essential (emphasis original). S.Ct. cause is an abso- probable existence of Investors, 508 Real Estate as evidence of anti- lute defense. Just Professional (citations 60-61, at 113 1920 U.S. S.Ct. competitive intent cannot affect the ob- omitted). jective exception, a prong [the] of sham enti- showing of malice alone will neither petitioning immunity

The that the Court wrongful proceedings plain- tle the civil immunity in PRE from anti- upheld was nor the factfinder prevail permit tiff to out, liability. pointed trust The Court cause. probable to infer the absence of however, principles being relied liability upon were not limited to antitrust Investors, 508 Real Estate Professional principles and noted that the same (footnote 62-63, 113 S.Ct. 1920 U.S. by liability it to under the applied been omitted). citations National Relations Act. See Bill Labor NLRB, generally in PRE is Restaurants, applied The law Inc. v. 461 Johnson’s 731, 2161, in the case law as the Noerr- L.Ed.2d 277 referred to U.S. 103 S.Ct. 76

117 Pennington PRE, doctrine.6 Since Butz, Club erra v. 349 F.Supp. 934 appeals courts of have frequently (N.D.Cal.1972). held that Judge Zirpoli based the liability restrictions on there recog decision on the First Amendment right applicable nized are to liability under state to seek to government influence action. laws, tort e.g., State Missouri v. Na Two lines of cases support the Sierra Organization tional Women, 620 F.2d Club decision and that which uphold we 1301, (8th Cir.1980), 1318-19 and to liabili here: cases, defamation e.g., New ty Act, under the Rights Civil e.g., Video Sullivan, York Times v. 254, 376 U.S. Production, Intern. Inc. v. Warner-Amex 710, S.Ct. (1964), L.Ed.2d 686 empha Communications, Inc., Cable 858 F.2d sizing the constitutional importance of 1075, (5th Cir.1988) (“... we hold communication on matters public in that any by behavior a private party that terest; and the Noerr-Pennington cases protected anti-trust by the teaching that the collusive by use com Noerr Pennington doctrine is also outside petitors legislative, administrative or to scope of S 1983 liability”); Gorman judicial process not, does more, without Towers, Inc. Bogoslavsky, 607, v. 626 F.2d give rise to an violation, see, anti-trust (8th Cir.1980) (same); 614-15 v. Stern e.g., Eastern R.R. v. Noerr Conference Inc., Gypsum, United States 547 F.2d Motor Freight, 365 U.S. 81 S.Ct. 1329, 1342-46 (7th Cir.1977). 523, 5 (1961); L.Ed.2d 464 California Motor Transport Co. v. Trucking Un We reached a similar conclusion in limited, U.S. S.Ct. Age Brownsville Home, Golden Nursing (1972). L.Ed.2d 642 Wells, (3d Inc. v. 839 F.2d 159-60 Cir.1988). The rule There, that liability private two cannot be im- individuals posed for damage public by and a caused inducing official charged were legislative, administrative, judicial or having conspired ac- to mount a campaign to tion applicable here. The conduct get Commonwealth of Pennsylvania to which this suit protected is based is revoke the license of the plaintiff nursing firmly principle, rooted endemic home. to a This conspiracy alleged government, democratic that enactment have violated state tort In support law. of and to law adherence is the case, responsi- plaintiff its submitted a “smoking of all. bility gun” letter written a member of the Brownsville, official’sstaff arguably reflecting (footnote an agree- 839 F.2d at 159-60 omitted). ment to together work to secure termi- nation of the license. We made the follow- helpful Also is our decision in McArdle

ing observations are instructive here: Tronetti, Cir.1992). 961 F.2d 1083

In a situation, somewhat analogous There, a state employee, prison counsel- has been held that persons or, who were allegedly prosecuted in bad faith a civil successful in persuading the Forest proceeding Ser- plaintiff have the involun- vice to reduce abandon its timber tarily committed ato mental health treat- program sales to protect the wilderness ment facility. plaintiff instituted his quality of an area could not be liable suit under the Rights Act, Civil 42 U.S.C. under state tort law 1983, § for interference claiming a violation of with an advantageous relationship. Si- substantive process. due We held that 6. From the seminal (1961), cases of Eastern Railroad 464 and United Mine v. Pen Workers Presidents 657, Freight, v. 1585, Noerr Motor 381 U.S. nington, 85 S.Ct. 14 Conference 127, Inc., 523, 365 U.S. 81 (1965). S.Ct. 5 L.Ed.2d 626 L.Ed.2d the requirement that law This includes analogous to “a common claim was

this efforts to se- resisted Herr’s defendants by a process of civil malicious use tort of cause probable “without aрproval cure malicious that of actor” and “claims state than purpose for a other primarily under Section brought prosecution adjudication” of proper securing the common include the elements of ‘must ” course, Nor, can of Herr’s claim. developed.’ Id. at 1088 as it has law tort in a manner inconsistent imposed be Bartle, 331, Rose v. (quoting the Constitution. (3d Cir.1989)). 674 of cited to section We (Second) evi Torts as Restatement in his con- points out As Justice Souter of pro PRE, elements. That section dencing those a in there be curring may opinion vides: between conceptual difference Consti- requirement as “probable cause” tutional in part active takes an who One “probable in PRE and the term articulated initiation, procurement continuation or by the Restatement employed cause” as against another proceedings civil of PRE, law. 508 U.S. at 66- and the common liability to the other subject (Souter, J., 67, concurring). 113 S.Ct. 1920 proceedings civil if wrongful wholly objec- cause” is “probable PRE’s cause, (a) probable he acts without only if “no liability may imposed be tive— than purpose for a other primarily realistically ex- litigant could reasonable adjudication securing proper that PRE, 508 favorable relief.” pect to secure proceedings the claim in which the 62, 1920. common U.S. at S.Ct. based, and are subjec- a may cause” have “probable law’s (b) they parte, when ex except are must “rea- component defendant tive —the in favor of have proceedings terminated is a sound sonably that there believe they are against whom person legally may his claim be held chance that brought. (Second) Torts valid.” Restatement initi- determining probable “In cause (e). situations, § In cmt. most all that is neces- proceedings, of civil ation without a will be a distinction difference. reasonably claimant be- sary is that participate has undertaken to person If a that his that there is a sound chance lieve proceedings in civil circumstances adju- upon valid may legally claim be held he could are such reasonable that (Second) Torts, dication.” Restatement succeed, it will be may that he expectation (e) (1976).7 § cmt. not indeed in which he the rare case does expectation. actually have against 1983 claim event, determine this case we need not analogous to the this case defendants in which dis- there are cases whether use of civil law tort of malicious common znake a difference. It does tinction would li Accordingly, actor. process state not here. ability imposed be under cannot support will not The record this case unless all elements teaching of McArdle resis- the defendants’ a conclusion the common law tort are satisfied. Also, dissent, implicate the Fourth Amendment. suggestion we Contrary to the of the dissent, Oliver, we Albright contrary suggestion 510 U.S. not read to the do (1994), a case 127 L.Ed.2d 114 proposition S.Ct. for the believe stands McArdle dealing alleged prosecution with an malicious principles we endorsed Brownsville Amendment, implicated the Fourth alleged tort applicable to an constitutional are McArdle, dealing overruling a case with an process. substantive due based on did alleged use of civil malicious tance to application was frivolous in ed the Township’s positions as frivolous. the sense that no reasonable litigant could Both the opinion of the Common- realistically expect to prevail. will Nor it wealth Court in the sewer litigation and support an inference that the defendants the opinion of the Court of Common had no they belief that had a “sound Pleas in the ensuing litigation analyze the chance” of prevailing. As the District presented issues with care and some de- out, Court pointed they took appeal no tail. If either court had viewed one or from the original LCPC’s conditional ap- more of frivolous, those issues as arewe in proval 1992 and thus did not contest confident that some of evidence view that Herr was years entitled five to the would have found way its into the opin- benefits of prior the zoning ordinance. ions.8

Moreover, position their basic in the sewer litigation that Herr rights had no IV. vested municipal sewer services under the 1971 To the extent the rule of decision sewage plan facilities was ultimately sus- grounded here is law, the common it tained the Commonwealth Court. makes no difference whether we are ana Thus, what Herr characterizes as a bad lyzing of Township or the faith run” “end around the grandfathering liability of supervisors in their individ provision of zoning was, law reality, ual caрacities. The elements of Herr’s winning argument. Even Herr’s “smok- claim would be the same in event, either ing letter, gun” to the extent it can be and if Herr has not come forward with taken reflecting views, as the defendants’ evidence that satisfies each ele essential evidences that the Township expected that ment of analogous tort, state summary might it prevail well before the DER and judgment appropriate. is To the extent that the possibility year of the five period the rule of decision here is an immunity expiring was regarded only an addition- rooted in Amendment, First analy al, incidental benefit the defendants’ sis of the Township’s liability involves an resistance before agency the state and the additional It issue. is clear that public courts. officials sued in their individual capacity

While Herr characterizes the defen- are entitled to the immunity provided un dants’ resistance conclusory terms as der the Noerr-Pennington doctrine. See frivolous, he has not any specific identified Home, Brownsville Golden Age Nursing issue and why articulated not a 839 F.2d 159-60. at We found no litigable one. Our search of the record has addressing case the issue of whether a not issue, identified such an find municipal we no corporation entitled to is such suggestion in opinions immunity.9 the decision- predict, however, We making agencies any regard- Supreme them Court would hold that it is. perceive 8. We fail to similarity positions between taken have not ‍​​‌​​‌​‌​‌​‌​‌‌​​‌​​‌‌​​​‌​​​​​​‌‌‌‌​​‌​​​​​​‌​‌‍City Pittsburgh, case Grant v. been “objectively shown to be baseless” or (3d Cir.1996). cause," There we were "probable аsked asserted without mo- "whether, applying decide taking tive Harlow’s ob- behind those positions legal- is not jective qualified ly test for immunity, propriety Court relevant to the summary may judgment against 'consider' of a evidence defendant’s state entered Herr. of mind when motivation ele- essential ment rights civil case, claim." Id. 9. The cites one dissent Video Interna Our Production, answer was in the That affirmative. an- tional Inc. v. Warner-Amex Cable here, helpful Communications, Inc., swer (5th however. Because 858 F.2d 1075 neither the that hold We therefore kind, township a this In situations of may be held supervisors its Township nor their constituents represent supervisors its by delays occasioned on the liable based gov- the participation their and facilitate oth- the LCPC before proceedings the Indeed, municipal if process. ernmental of a show- in the absence public er bodies utiliz- discouraged from are governments record, they that upon made ing, not participation finance municipal to ing funds positions the cause” for “probable lacked governmental other before proceedings they took. left likely to be citizens are their agencies, pend- matters important a voice without Moreover, mu- agencies.

ing before those V. among those most are governments nicipal predicated on to the claims addition of information possession to be likely by proceedings the delays the occasioned kinds of decisions to the relevant bodies, public and other the before LCPC among most and are those made to be here following allega- makes brief the Herr’s makers’ the decision likely to be aware tions: A rule which would for information. need expressing municipalities discourage Road, there is substan- inAs Blanche oth- taking position a before concerns and tried to that defendants tial evidence “deprive would agencies er stop Mr. Herr’s delay or of a valuable source government the Mr. scrutiny” of Herr’s “extra through Noerr, U.S. at information.” and nev- reviews plans—both immunity Granting petitioning S.Ct. “problems” for er-ending searches pur- thus serve townships plans. to would for the conditions or additional conditions, clause. petition to poses of or “problems” Additional has held Supreme Court cause might While Township supposed, the across- entitled to Mr. project are not townships disapprove the to LCPC law, immunity the-board, example, qualified it. there For Herr to abandon common who exercise officials caused the enjoyed public that defendants is evidence functions, City special give Owen v. to discretionary Township zoning officer 649-50, Mill- plans reviews of Independence, U.S. attention to (1980), Similarly, the ra- there is Park. 63 L.Ed.2d wood Industrial S.Ct. here. conducted inapposite of that decision evidence tionale reviews immunity numerous, time-consuming to limited immunity is a Petitioning in Mr. “every possible violation” of the Consti- find specific provision a based on (Blanche Road, 57 F.3d at townships plans it to extending tution itself and 260) thereafter, and, all such with, reported but be consistent only would not hope in the the LCPC further, reviews purposes would plans. disapprove would the LCPC clause. petition situation, a like one involve did not 1988), standing proposition that tional for the Cir. us, to im- plaintiff seeks in which apply public immunity a before petitioning cannot petitioning however, municipality case, pose liability on a plaintiff did entity. In that entity state law public a distinct authorized defendant on the impose not seek Inter- planning issues. Video land activity. The com resolve city petitioning based only help if here zoning would be of city’s national plaint on the own was based and, had denied it suing public entity which not were as the Court enforcement decisions ed, the merits permit for reasons unrelated government to impossible for the "it is application. permit Interna- Id. at 1086. Video itself.” Finally, there is evidence of the Town to the merits of application per- ship’s and Supervisors’ Road, efforts to mits.” Blanche 57 F.3d at 267-68. opposition foster unfounded to Millwood Here, the charge is that the defendants Park public agencies Industrial from instructed Township employees apply private parties alike. The Township scrutiny” “extra in their review of Herr’s repeatedly sent out letters attempting to proposal in order to identify problems rel- “engender any concerns” or otherwise evant application before the “get Mr. Herr on something else” LCPC and agencies. other state We con- (Blanche Road, 258) at as a clude that this precursor essential to the means to “slow down and shut down” Township’s actual communications with the (Id. 260) the project. agencies state also comes within the law’s Appellant’s Br. at 31-32. protection for petitioning activity and that charges

While these are east a some- regardless this is true of how thorough the what different form and are obviously in- employees were instructed to inbe identi- bring tended to aspects these of Herr’s fying problems jurisdiction with the teachings Road, case within the of Blanche petitioned agencies. too,

we that they, conclude are barred protection afforded for petitioning ac- VI. tivity. To the extent these claims are judgment of the District Court will based on communications to the LCPC and be affirmed. responsible other agencies, state a straightforward application of the princi- GARTH, Circuit Judge, dissenting: ples already discussed leads to the conclu- I must dissent from the majority’s opin- § sion that there can be no 1983 liability. ion, because I would hold that there exists Calling concerns about a proposed devel- genuine issue of material opment fact as to to the attention of responsible Pequea whether Township’s actions violat- agencies state lies at the core of privileged ed Herr’s substantive process rights due activity, and this regard is true without and, therefore, I would remand for trial. I the number of concerns expressed long so part company from the majority, which as there is some rational basis for those holds that the 1st right Amendment concerns. In making charges, these Herr petition permits the Township litiga- to use has prоblem identified no communicated to judicial tion and the process in order to agency state that has been shown to prevent Herr from developing proper- his no rational basis. ty. reasons, For the following my opin- Road, In Blanche we held that the de- ion, majority has erred: might fendants have exposed themselves liability “by ordering that Many 1. of the actions taken Pe- Blanche applications Road’s be quea Township, reviewed which deliberately delayed greater with scrutiny in order to slow and obstructed Herr in the development of development.” down the 57 F.3d at 269. property, were actions which arose held, however, We so in the context of a other than proceedings Court and the situation in which the judicial defendants com- process, and may thus not be con- prised permitting authority and their sidered within the rubric of the Township’s alleged conduct “improperly interfered to petition under the 1st Amend- process by which the township ment. In short —Herr’s evidence in sup- permits issued ... for reasons port unrelated of this substantive process due claim Cir.1996) holds, qualified in a immu- albeit Township’s limited to the simply is not context, that claims of substantive due litigious nity behavior. alleged by kind violations of the rejected any claim itself has by the require careful examination upon theory dependent and intent of the courts of the motive Pequea In has declined petition. short — entity involved. In government relevant theory after it rely on such even to majority’s ignore would opinion short-the to do so. encouraged was preclude teachings, and would Gmnt’s right petition Even if a to were rele- 3. motive and improper Herr’s evidence of (as majority in this case believes vant right petition. the basis of a to intent on be), an it to it cannot defeat or overcome recognized not in our preclusion That individual’s substantive due jurisprudence. Pequea has en- Township where the arbitrary capricious develop- in gaged In

mental conduct. short—-the I. Township cannot be immun- motives of the a It should be recalled that Herr by resorting petition to a to ized property Pequea with Town- landowner theory majority has cited to no a an ship. plan He submitted industri- authority support such aber- which would County Planning the Lancaster park al to jurisprudence. rant (“LCPC”), which granted pre- Commission In to its conclu- a. an effort bolster plan. his liminary approval and final to by that Herr’s action is barred Pe- sion According the relevant Town- to Township’s right quea —a ordinances, park Herr’s industrial was ship theory Pequea itself to which not even provided public to be sewer service. majority subscribed —the claims has only approval It was Herr received after sup- Pennington that the Noerr doctrine Township that the modi- from LCPC Noerr-Penning- But ports its thesis.1 engaged multiple its ordinances and fied immunity applies private, ton court and other actions which record entities, I governmental, and as the de- designed prevent reveals were pointed amplify out and will later velopment property of Herr’s accor- dissent, charges encompass more nature of the dance with the industrial just activity. In petitioning than zoning approval. It did so because the immunity Noerr-Pennington short — property desired the to be used in an may not be looked to effort than the agricultural purposes rather controversy. resolve this purposes. industrial zoned significance, the ma- greater 4. Of even Herr, legal position develop whose jority ignored, has and has not even re- to, property eventually upheld industrial was opinion a Third relevant ferred Circuit Pennsylvania,2 courts of faced road- Pittsburgh, here. v. 98 F.3d 116 Grant cases, Township's Supreme majority provides 2. Named after two Court litigation position in the sewer Railroad Presidents v. "basic Eastern Conference Inc., rights municipal Freight, Herr had no vested sewer Noerr Motor 365 U.S. (1961), plan sewage services under the 1971 facilities S.Ct. 5 L.Ed.2d 464 United Pennington, ultimately the Common- 381 U.S. sustained Mine Workers Court," (1965), "winning wealth and therefore was a S.Ct. 14 L.Ed.2d 626 Noerr- reading by parties argument.” Maj. op. at Pennington immunity protects private 119. This however, liability flowing peti majority, does not tell the whole from valid from antitrust fact, story. Court— tioning activity government. the Commonwealth to the every step attempts blocks at of his developing property. his Pequea, on hand, the other argued industrial for over eleven that motive was issue, not an years. just been, It and that if it litigating was not case of had their (which proper. motives were do), rights he was forced to but Township, was a case where the which suggest I that this is the issue that must very deliberate and intentional mo- resolved, be not the issues manufactured prevent tive to Herr from developing his by majority they which have decid- property, obstructed Herr at every turn of ed to resolve this controversy.

the road. II. parties Both summary tried this case to We have held that “non-legislative state judgment on the issue that Herr’s substan action,” which is the type of state action at tive process rights due had been violated. here, “may issue ... give rise to a sub parties rejected Counsel for both the ma stantive process due claim upon allegations jority’s suggestion that McArdle v. Tronet government deliberately and arbi ti, (3d cir.1992), 961 F.2d any trarily power.” abused its Nicholas v. thing predicament. to do with Herr’s Pennsylvania State University, 227 F.3d McArdle is a classic malicious abuse of 133, (3d Cir.2000) (internal quotation case, prosecution viability whose is in sub omitted). marks A substantive due pro stantial doubt after the Supreme Court cess claim arising out of non-legislative Oliver, Albright 266, decision in v. 510 U.S. 1) state action has two elements: “we must (1994). 807, 114 S.Ct. 127 L.Ed.2d 114 look, matter, as a threshold to whether the Moreover, neither counsel relied property being deprived interest is ‘funda aspect of Pequea Township’s 1st Amend Constitution,” Nicholas, mental’ under the ment to petition or the Noerr-Pen- 2) 142; 227 F.3d at plaintiff “also Rather, nington parties doctrine. both must demonstrate that was the victim [he] approached this case appeal issue on of ‘a action [that] was arbi a straight-forward manner —the one as irrational, trary, tainted improper serting and the other denying a substan ” Estates, motive.’ Woodwind Ltd. v. process tive due violation. Gretkowski, (3d 118, 205 F.3d Cir. Herr, plaintiff, contended that Pe- 2000). City Pittsburgh, Grant v. 98 F.3d quea Township was motivated a desire (3d Cir.1996) 124-25 adds that a court property to retain his agricultural prop- is to consider evidence of a defendant’s Herr, erty. purchased who had prop- [here, Pequea’s] state of mind when moti erty “grandfathered” and was into the zon- vation is an essential element [as is here] (so ing property of the as industrial long plaintiffs of the rights civil claim. [Herr’s] developed as he property within five A

years), claimed Pequea Township’s acts were taken in bad faith and with an There can no property be doubt that the motive, improper preventing thus him interest at issue here is “fundamental.” Indeed, disagreeing (Pa.Commw.Ct.1998). while with the Environmental 684-85 Hearing ruling protection Board and that the agreed Commonwealth Court that “Herr had developer’s approved plan offered to a under [Pequea Township's] established that Pennsylvania Municipalities S 508 of the sewage plan inadequate was to meet Herr's Planning apply sewage Code did not facili- needs,” sewage disposal upheld ty plans found the Board's er- —nevertheless right municipal sewage Pe services from ror to be harmless and ruled in favor of Herr. quea. Id. at 685. Herr, Pequea Township See 716 A.2d intentionally “Indeed,” Township v. Zon- find that as we held DeBlasio delayed Herr’s Township development blocked or ing Adjustment Board Amwell, unrelated property would be hard- his “for reasons “one West Indeed, development plan. of his property find a interest more merits” pressed to protec- suggests Township the evidence worthy process substantive due every -including to the ownership.” 53 F.3d used access tion than effort— believe, Cir.1995). I and the courts—to hinder of Herr’s Accordingly, well, maj. op at land. majority agrees as see properly held that that the District Court There is extensive evidence from which developing property Herr’s interest jury could find that the acted worthy an interest of due arbitrarily, irrationally, or with protection. (“Peterson”), motive. Alan S. Peterson Pequea Township Envi Chairman

B. Council, Advisory sent numer ronmental places in 1990 to such as the ous letters alleged Because ‍​​‌​​‌​‌​‌​‌​‌‌​​‌​​‌‌​​​‌​​​​​​‌‌‌‌​​‌​​​​​​‌​‌‍Herr has a violation of Conservancy, Pennsylvania Nature interest, it must be property fundamental Commission, Historical and Museum has suffered determined whether Herr Commission, Pennsylvania Game and the action was [that] from “a Commission, Pennsylvania asking irrational, Fish arbitrary, by improp- or tainted Walker, proposal possi them to review Herr’s “for Bello v. 840 F.2d er motive.” (3d Cir.1988). endangered species ble or other environ 1124, 1129 We have made rarities,” situations, possible mental “for historical or that, disputed factual “[i]n clear archaeological significance,” and “for ... of im- the determination of the existence species special (App.612a- of concern.” faith proper properly motive or bad 615a.) Peterson also another round of sent jury the finder of fact.” made as Estates, Gretkowski, early letters in 1992 to the Lancaster Wa Woodwind Ltd. (3d Cir.2000). Authority, Pennsylvania ter Power & 118, 124 also ob- We Light Company, the Suburban Lancaster served in that “we have not Woodwind Authority, Department Sewer of grant summary hesitated to vacate a others, Transportation, among informing judgment judgment or a as a matter of law pro them about concerns related to Herr’s plausibly where the evidence least (App.616a-622a.) Additionally, Vir posal. took actions government showed ginia Brady (“Brady”), K. a member of the indefensible rea- against developer Township Supervisors Board of and a de zoning sons unrelated to the merits of the action, in this similar fendant sent letters at 124. In con- dispute.” 205 F.3d this Department in 1993 to the text, October blocking delaying “the intentional or Transportation, the Bureau of Dams and permits for reasons un- of the issuance Waterways, Department Army, permit applica- merits of the related in City Engineer and the Lancaster Octo principles tion violates of substantive due (App.638a-641a.) ber 1993. actionable under [1]983.” and is Woodwind, 205 F.3d at 124-25. Dice, Eugene Peterson sent a letter attorney, stating: an light at the facts in the most

Looking Herr, Only Brady and I in the Pequea Virginia favorable to it was town because (Do defendant, ship following: Township, the which had moved know not state township I back to the man summary judgment, believe this ner). lots, jury certainly rational could and would The owner must sell then I development plans my money all the land must be have no desire to invest in a they noncon approved by become township negative with a attitude. It 10M Ag. in the District. Obvi forming lots looks like this could take for- ously longer (if we can stall we can’t approved by ever to be the township.” DER), mn this with the better.... We (App.210a.) year want this our defeatеd after four evidence, light of this it is clear to me struggle! the issue of whether the added).) (App. (emphasis 374a-375a an motive must be sent to Brady deposition: stated at her “Devel- Indeed, jury. it is inconceivable to me However, opment put is not bad. to —-and how the District could Court have held a personal opinion put develop- this is —to otherwise. The analyzed District Court prime agricultural ment on soils is not regard the evidence without to the fact I right, personal belief have that the issue of improper motive was be- many, many years.” had for many, (App. fore the court summary judgment on a 216a.). Additionally, Brady quoted motion, in required which the court was article, newspaper regarding a 1997 draw all reasonable inferences in Herr’s “battle” between Herr and Town- Instead, favor. the District Court several ship development plan, stating: over his times drew inferences in Pequea Town- already park,” “We industrial ship’s favor direct contravention opposed paving any prime “I am over summary judgment standard. agricultural (App.585a-586a.) land.” Groff, Bruce another member of the Board instance, For the District Court drew Supervisors and a defendant following conclusions from the evi- action, quoted that saying “support was 1) dence: “the reasonable inference to be rural is preservation] desperately [for drawn is Defendants wished to zone needed to deter recent and future horren- parcel land which was permitted [another proposals being prepared by develop- dous remain consistently industriаl] to with its (App.379a.) ers.” use, than carry current rather out the April Herr received a letter in pointless changing zoning of the exercise Sneath, company Robert G. whose had agricultural grandfathering to the but buyer a potential space been of at Herr’s 2) use”; preexisting industrial “there is no in Mr. proposed park, industrial which before knew evidence us Defendants requested that him Sneath Herr release they stop development could not of Mill- sale, agreement explaining: from the Park, yet merely delay wood acted to and Associate, Warfel, My Glenn talked to 3) Plaintiff’; harass “the mere fact that zoning plans. the officer about our His Virginia Brady Dr. Peterson claims name is Wes Brocknoe ... Glenn imposed by was aware of the time limit your plans informed that under were grandfather clause under [the which litigation and the land was still zoned Herr’s land was zoned does not industrial] agricultural by Pequea Township. The 4) imply part”; an motive on her zoning liberty officer was not at to talk there was “no basis for inference us, timing about it. to important With pursued litigation Defendants the sewer encouraging. this was not genuine than a de- any purpose other stated, “Quite to have Millwood Park come about (App.210a.) Mr. also sire not Sneath 5) Plaintiff’; in and frankly, everything proposed I have heard about the form dealing no what the Pequea Township negative. with basis to determine “[t]here presents Township] ship’s litigious were.” behavior.

true motives the [of by the litany evidence of a of conduct (App.21a-25a.) beyond litigation its Township abovе and I that a motive Additionally, should note activity span years over a of eleven of—all part Township prevent delay purportedly designed which was land, ie., “not to industrialization development of and block the industrial Millwood Park about in the form come Herr’s land. Plaintiff,” (App.25a), is not proposed by zoning dispute related to the merits of (1) proof evidence includes: This Township. Herr between Herr and the Township’s campaign since 1990 to find already plan sepa- to a submitted with, or raise unfounded con- problems (the LCPC), entity rate about, Millwood Industrial Park with cerns approved plan which Herr’s before would hope problems that the raised which pass legislation could delays leading past five-year lead to prevent proposed development. would (2) grandfather period; proof of the Town- Township properly fact that the enact- The scruntiny” applica- of Herr’s ship’s “extra zoning sewage ed new ordinances with delay tions an effort to development does not goal reducing (3) past five-year period; proof attempt that its to defeat a mean actions Township’s applications denial of Herr’s development plan legitimately that had es- public sewer service motivated rea- Indeed, caped regulation proper. its were but water-quality sons unrelated to issue view, Township’s my motive en- up hold by Pequea’s rather desire to acting plans relating ordinances and new (4) development; proof irrelevant, and the District to land use is of аn no- Township’s issuance enforcement it. considering Court erred part campaign delay tice was of a devel- opment. nothing This conduct has to do III. litigation petitioning activity before majority Township’s holds that the courts, the LCPC or state and therefore—(cid:127) litigation-related protected by actions are majority’s peti- assuming even the 1st Amendment tion is correct —it would not be immunized that, therefore, they cannot form the basis by the 1st Amendment. process of Herr’s substantive due claim. prove any not Holding that Herr could B. Rejection Pequea’s Counsel’s of actions, injury majority without these the Petitioning Right summary judg- affirms the District Court’s ment dismissal of Herr’s substantive due Next, reject- Pequea Township itself has I process agree claim. cannot with this any theory dependent claim or the upon ed holding does because petition, declining rely process liability not due bar substantive theory encouraged such even after it was litigation arbitrarily irrationally and only theory to do so. Not was this never by governmental entity. initiated a raised, entertained or discussed very party to whose benefit it would re- A. Actions Pequea’s Other and dound, supplemental but when asked for Apart Litigation issue, pertaining memoranda to that both matter, As an initial Herr’s evidence in Herr and declined to embrace or support process rely theory. They due on such a did so be- of substantive parties recognized claim both that this simply is not limited to the Town- cause

127 variety principles apply due McArdle do garden substantive case was appeal.... the instant Because the is- process proceeding. regarding process sues abuse of Likewise, majority’s upon reliance in by [Herr] not been raised the instant (3d F.2d 1083 v. 961 McArdle Tronetti appeal pro- and because has not [Herr] Cir.1992) par urged upon — which finding duced evidence to allow a There, analyzed we inapposite. ties—is process, Township] argues [the abuse § claim a malicious plaintiffs 1983 that McArdle has no relevance in of his claim violation process use of civil appeal.... principles instant [T]he Referring to Lee rights. 14th Amendment McArdle have no determinative effect on Mihalich, Cir.1988), and F.2d 66 v. ability to decide Honorable Court’s that “a claim of progeny, its we reasoned that there is insufficient evidence of rec- may state a process malicious use of jury finding ord to a reasonable support § claim if it includes the elements process law tort as it has devel of a substantive due violation. that 30 common McArdle, F.2d at 1088. Ac oped.” Similarly, agrees that his claims are that such a claim cordingly, required we process not malicious use of claims. While (1) “act the defendant requires proof I acknowledge recognize that we should in manner or with grossly negligent ed jurisprudence the correct even if counsel for a primarily out clause and probable so, not, to do we should as the declines securing than that of purpose other here, majority has done devise our own in adjudication ... of the claim proper (or theory immunity) after coun- (2) based; proceedings are which deliberately rejected theory, sel has in have terminated favor proceedings it is flawed and lacks particularly since they are person against whom Indeed, jurisprudence. I support our brought.” Id. improvident think it inappropriate of McArdle’s Setting aside the issue counsel’s, theory for panel’s to substitute a questionable viability Supreme after the it is obvious from our particularly when Oliver, Albright Court decision of im- jurisprudence own issue 127 L.Ed.2d U.S. S.Ct. proper motive a substantive due (1994),3 majority, by claiming jury is one for the and not for the case against “Herr’s 1983 claim defen- Woodwind, 124; at judge. See 205 F.3d the com- analogous dants this case is Grant, 98 F.3d at 124-25. pro- mon law tort of malicious use of civil Nevertheless, ap- if were even McArdle actor,” maj. op. a state see cess (as previ- plicable, Herr’s claims discussed again directly repeated contradicts the just than abuse of ously) encompass more equivocal of both Herr’s and the positions Rather, are based process. his claims Township’s counsel that Herr’s claims showing evidence that the upon specific process were not malicious use of claims. Indeed, the indus- Township delayed blocked and Supplemental in a Letter Brief (ordered Court), 1, every pos- trial of his land at by dated this June system of the court is Township specifically the conceded that: sible turn. The use including Supreme holding Albright— progeny, McArdle. 3. The Court’s in Mihalich and its malicious, suggested prosecution See, which that a City Philadelphia, e.g., v. Gallo of exрlicit must be constitu- claim anchored (3d Cir.1998) (‘‘[Albright] has text, Amendment, tional such as the Fourth great uncertainty created in the law” of mali generalized pro- rather than notions of due Bivens). prosecution under 1983 and cious viability cast doubt on the of Lee v. cess—has one, just important, evidentiary albeit ex- government’s actions that are within the ample Township’s power may tactics. Accord- but nevertheless be constitu- ingly, particular tional violations in a holding ap- the McArdle—even if case be- government’s cause of the plicable circumspect too to of motive exer- be value —is cising power. as to Herr’s pro- claims of substantive due cess. Accordingly, because of this clear indica- tion in process jurispru- substantive due A Right C. to Trump Petition Cannot dence that it government’s legal is not the Illegal Municipal Actions and Can- authority to power exercise its but its mo- Legitimate Substantive Defeat in analyzing tive that is relevant a substan- Due Process Claim claim, process tive due I agree cannot majority’s the holding Township if right petition Even were relevant did not violate Herr’s pro- substantive due case, in this it cannot defeat or overcome rights simply cess because its actions were process individual’s substantive due protected by right petition. the right where presented evidence has been Township the engaged has By immunizing motive and intent when- arbitrary capricious behavior. The ever there petitioning activity on the improper motives of the cannot part of government, majority the effec- by be immunized resorting right to a tively renders the 14th power- Amendment majority and the has cited to no less, turning it surplusage any into mere authority which support would such aber- improper time litigious activity by a munic- jurisdiction. rant ipality is asserted. essentially This “would government insulate liability officials from Though it is true that the First Amend very harm our substantive due encompasses ment a right petition, this process precedents sought to redress: right is “not absolute.” Filippo San using government authority to take ac- Bongiovanni, 30 F.3d Cir. that, tions because mo- 1994). Additionally, the doctrine of sub public officials, tives have no rational stantive process due does not require that relationship legitimate to a government government actions taken be Grant, purpose.” (empha- 98 F.3d at 125 illegal to process constitute a due violation. added). sis Instead, process substantive due “protects individual liberty against ‘certain govern way, this petition which, — ment regardless actions majority’s reasoning, virtually al- fairness of ” procedures implement used to ways them.’ defeats evidence of a substantive Heights, Collins v. Harker 503 U.S. at process due violation—would insulate the 112 S.Ct. 1061 (quoting Daniels v. Township very from the arbitrary and ca- Williams, 327, 331, 474 U.S. pricious 106 S.Ct. governmental conduct (1986)) added). 88 L.Ed.2d 662 (emphasis meant protected by to be 14th Amend- Indeed, repeatedly courts have explained By ment. reasoning, peti- substantive due protects tion would also immunize a municipality of against “the arbitrary pow exercise Equal under Protection government.” Walker, ers of Bello v. 840 Clause—also a 14th Amendment claim— (3d 1124, Cir.1988) (internal F.2d 1128 notwithstanding particular evidence that a omitted). quotation marks Implicit municipality this pursued delay litigation statement is that the actions that form the tactics because of an individual’s race or basis of process beliefs, substantive due religious just claims are long so as it could

129 508, 510, 609, justification 92 30 some non-frivolous U.S. S.Ct. L.Ed.2d 642 articulate (1972)). its lawsuit. Such result support to juris- clearly contrary to our constitutional doctrine, Noerr-Pennington

prudence. it, however, the rationale behind is not First, case, applicable here. it Pennington Applicable D. is Not Noerr seeks to too much. Because immunize and Not Relevant to Government charges include more than appro- Misconduct priate petitioning activity Pequea’s part on (see III.A., In an to its conclusion that effort bolster supra), application Section claim is barred Herr’s due Noerr-Pennington here cannot insulate majority Township’s right petition, to or immunize from Herr’s claims. Noerr-Pennington claims that doc- Second, importantly, and more howev supports trine its thesis. our most er, Noerr-Pennington immunity applies doctrine, exposition recent we have private parties to —not Noerr-Pennington immunity as described seeking gov redress from the entities — follows: ernment. See Video International Pro doctrine, Noerr-Pennington ‍​​‌​​‌​‌​‌​‌​‌‌​​‌​​‌‌​​​‌​​​​​​‌‌‌‌​​‌​​​​​​‌​‌‍Under the duction, Inc. v. Warner-Amex Cable may be immunized private parties Inc., Communications, 1075, 858 F.2d stemming from antitrust against liability 1082-84, Noerr-Penning- (applying 1086 injuries flowing petitioning. from valid protection private operator ton cable types This includes two distinct of ac- antitrust, § against tort and 1983 co- petitioner may tions. A be immune from conspirator liability, noting but as to injuries antitrust which result from municipal liability “Noerr-Penning- ... petitioning parties itself. Also protection apply ton does not to the liability arising from are immune see also government”); Professional injuries govern- the antitrust caused Investors, v. Real Estate Inc. Columbia petition- ment action which results from Ind., Inc., 49, Pictures 508 U.S. 113 ing. (1993) 1920, (pro 123 L.Ed.2d 611 S.Ct. Company, tecting private companies against A.D. Inc. v. movie Bedell Wholesale Inc., liability); Bill Res Philip Morris 263 F.3d antitrust Johnson’s Cir.2001) (citations omitted). taurants, NLRB, Inc. v. 461 U.S. “Rooted (1983) L.Ed.2d 277 the First Amendment and fears about the 103 S.Ct. liability chilling political speech,” (extending protection 1st Amendment threat of private employer who filed lawsuit Noerr-Pennington generally doctrine in vi entity against employee allegedly former private petitions insulates a which Labor Relations government for redress from antitrust olation of the National Act); Transport liability improper pur- “even if there is an Motor Co. California Unlimited, Trucking 404 U.S. pose petitioning or motive” behind the ac- (1972) (refus added). 609, 30 L.Ed.2d 642 tivity. (emphasis Id. at 250 We S.Ct. ing apply protections 1st Amendment immunity have also noted that “the reach- company only legislative private trucking because petitioning es not exception); government, but fell within “sham” Gorman and executive branches Towers, Bogoslavsky, all Inc. v. depart- ‘the extends to (8th Cir.1980) Government,’ (immunizing private including the ments of the against Motor defendants judiciary.” (quoting Id. California Unlimited, Noerr-Pennington protec- Trucking 404 the basis of Transp. Co. v. 130

tion, holding public officials immune rights but individual's constitutional under the grounds Noerr-Penning- other than 14th Amendment. immunity); ton State Missouri v. majority, One of the cases cited Women, Organization National Home, Age Nursing Brownsville Golden (8th Cir.1980) F.2d 1301 (protecting pri Wells, Cir.1988), Inc. v. 839 F.2d 155 organization vate anti against women’s nursing involved a operator home liability); trust v. Stern United States against private filed state tort claims two Inc., (7th Gypsum, 547 F.2d 1329 Cir. There, a public individuals and official. 1977) (protecting corporation and its of the nursing alleged home that the defen- against liability). ficers To the improperly dants scrutinized operations its majority extent has cited one through publicity a arguably letter-writing case that could cam- be seen as ex tending immunity governmen paign ultimately to a which led to its loss of entity, tal protection immunized the license. This Court affirmed the district party only against statutory liability, not grant summary court’s judgment against deprivation. a constitutional See against nursing home because it failed Center, Armstrong Surgical Inc. to “raise a material fact” issue of on its Armstrong County Hospital, Memorial state law claims of tortious interference (3d Cir.1999).4 185 F.3d 154 with business and civil conspira- relations cy. Accordingly, application (emphasis original). Id. Spe- Noerr-Pennington doctrine cannot re- cifically, we agreed with the district court solve, to, and cannot analogous be the fol- plaintiff failed to show that the lowing governmental conflict: whether a defendants actions were “unlawful” “im- or entity’s [Pequea’s] right 1st Amendment (as torts) proper” required by those since petition always trumps an individual citi- Pennsylvania conclusively courts had zen’s 14th pro- [Herr’s] Amendment due determined that the revocation of the right cess arbitrary be free from and home’s license was warranted “because of capricious government activity.5 ma- its nursing serious violations of home stan- jority provides authority extending no dards.” Id. Noerr-Pennington by govern- to conduct Invoking, by analogy, principles un- ment which entities have been shown to cases, derlying e.g., defamation New York have acted in violation of constitutional Sullivan, Times v. restrictions. Nor I U.S. 84 S.Ct. do know of author- ity (1964), purporting to L.Ed.2d 686 Noerr-Penning- extend and Noerr- ton in way cases, such a per Pennington so se defeat an we held that the defen- See, Armstrong, 4. Noerr-Pennington protection nity private parties.” e.g., id. at 159-61, added). hospital physi- (emphasis was afforded to a and its staff cians from antitrust under the Sher- entities, government It is axiomatic that un- Act. man citizens, private like are limited the Consti- caption suggests While the of that case ways tution from certain conduct in that indi- hospital may county hospi- been {see, e.g., viduals are not the Due Process tal, "municipali- the issue of whether it was Clause). Equal Clause and the Protection ty” "government entity” or a was never Therefore, providing private citizen an abso- Indeed, opinion ap- addressed. itself per immunity arising lute se from his her pears to have referred to the defendant hos- 1st Amendment is far differ- pital "private party” as a a number of providing ent than such an absolute constitu- times, explicitly characterized the entity tional to a such as Noerr-Pennington immunity Pequea Township. as an "immu- motion summary judgment ficials’ based calling [plaintiffs] “in viola- actions dants’ immunity. This Court re- upon qualified and federal attention of state tions to the immunity qualified manded the issue for eliciting public interest and authorities specific as to the conduct of liability.” of tort reevaluation as the basis cannot serve defendant, Brovmsville, specifically but noted that ruling This each 839 F.2d at 160. examining from in case “courts are not barred the situation this cry a far from in of a defendant’s state of mind credible evi- evidence presented Herr has wherein plaintiff whether a has ad- Township’s considering motiva- showing that the dence duced sufficient evidence to withstand delay litigat- tactics and behind its tions summary judgment quali- on the issue of prompted by were ing the “sewer” issue immunity, fied where such state of mind is rightful from his to thwart Herr desire of the constitutional an essential element develop property his as well as claim to (citations at 124 omit- violation itself.” Id. delay sufficiently such scheme to ted). particular, specifically In our Court period would ex- five-year grandfather that, addition, allegations recognized In unlike pire. Brownsville, claims sound

made in process substantive due violation [t]he authority and not constitutional direct alleged precisely in this case is sort statutory liability. common law or state clearly of claim where established law de- legal illegal

makes the conduct Pittsburgh E. Grant pending u-pon the intent with lohich it nature, very sub- рerformed. By their evidence of the Finally, by disregarding kind process stantive due claims intent, majority motive and Township’s le- application otherwise involve v. Pitts- ignored holding has our Grant government machinery gitimate Cir.1996). There, burgh, 98 F.3d 116 illegitimate [W]hen end.... achieve (a developer) brought suit land Grant the same officials invoke administrative § city under certain officials against they illicit purpose, with an processes alia, violations of his sub- alleging, inter process violating are substantive dtie process rights. particular, stantive due time, and, same ‘clear- at the guarantees by city nomination claimed Grant ly established’ law. buildings pres- two for historic officials of Pittsburgh Historic (citations omitted) under ervation (emphasis at 125 Id. Structures, District, Objects Or- Sites added). in the context Although decided dinance, Title Pittsburg, Pa.Code expressly rec- immunity, Grant qualified 513, effectively prevented buildings acknowledges that substantive ognizes and thereby being demolished and the use of claims often involve process due develop the plans to thwarted Grant’s by gov- governmental processes legitimate lo- buildings ends, on which the were property illegitimate officials for ernment nomination alleged that the cated. Grant upon inquiry focuses proper interest, by public but utilized, was not motivated but processes propriety personal politics by partisan rather motives of the officials upon rather bearing preserva- the historic having no involved. defendants buildings.

tion of Here, very of Herr’s sub- essence immunity. qualified claimed allegations depend due stantive actions taken behind the court, upon the motives failing to consider The district the individual defen- Township and individually in the role each defendant’s (see already discussed Section conduct, As denied the of- dants. nonetheless alleged II.B., ..., supra), presented particu- Herr has In the instant case when the evi- specific larized and evidence which—if light dence is viewed in the most favor- reasonably jury credited' —could lead a plaintiffs, able to it is clear that defen- by Pequea conclude that actions Town- reasonably dants could not have believed in ship this case were motivated illicit that their conduct [plain- did not violate purposes, thereby and violated Herr’s sub- defendants, rights. If tiffs’] rea- rights 14th stantive due under the sons unrelated to an appropriate govern- Amendment. mental purpose, intentionally conspired impede the development of the

IV. project, by Blanche Road ordering that The District Court noted “we be- Blanche Road’s applications be reviewed lieve Defendants are qualified entitled to greater scrutiny with in order to slow immunity.” (App.30a.) Supreme down the development by ordering and Fitzgerald: Court stated in v. Harlow that efforts be taken to shut down the “government performing officials discre- development, arbitrary such an abuse of tionary generally functions are shielded governmental power clearly would ex- for civil damages insofar as scope qualified ceed the immunity. their conduct clearly does not violate es- Accordingly, qualified the defеnse of im- statutory tablished rights or constitutional munity is not available to defendants in of which a person reasonable would have the instant matter. 800, 818, known.” 457 U.S. 102 S.Ct. Cir.1995). 57 F.3d Similarly, (1982). 73 L.Ed.2d 396 I would hold that in we held Woodwind that: “In the instant the defendants here should have known ..., case when the evidence is viewed may their actions have violated Herr’s light most plaintiff, favorable to it is and, process rights substantive due there- supervisor clear that the defendants could fore, they are not im- qualified entitled to reasonably not have believed that their However, munity. because I am satisfied conduct did not violate plaintiffs rights.” that the “improper issue of motive” must determination, be returned for jury even I believe that the defendants in this case though I believe that has have even less claim to qualified immunity violated Herr’s right constitutional than the defendants Blanche Road. If clearly was established at to be free from state intervention violation, the time of the I would hold that land clearly estab- qualified immunity issue should be ad- (in lished when Blanche Road was decided dressed us but in the District 1995), clearly it is even more established Court. light now in of the Third Circuit’s decision holding Such a would be consistent with holding Blanche Road. our holdings Blanche Corp. Road Woodwind, Bensalem Township and both V. of which involved substantive due process challenges interference I would reverse the District Court’s with land development plans. In Blanche grant summary judgment Road, we stated: trial, Township and remand the case for opinion says 6. The text of the "defendants' error. rights,” clearly typographical but this is property has fundamental

because issue of mate-

interest; is a genuine there Township acted whether the

rial fact as to motive; Town-

with an tactics, including its initiation

ship’s delay protected from substan- is not litigation, by any claimed analysis

tive due majority of petition. Because ‍​​‌​​‌​‌​‌​‌​‌‌​​‌​​‌‌​​​‌​​​​​​‌‌‌‌​​‌​​​​​​‌​‌‍otherwise, respectfully I holds panel

dissent. BENNETT,

Sally Administratrix of Bennett, of David

the Estate MURPHY, III, Individually

Francis J. Pennsylvania State Police

and as Commonwealth

Officer Nowakowski,

Pennsylvania; F. Mark

Individually capacity and in his as a Pennsylvania

Corporal State the Commonwealth Penn-

Police of

sylvania, Appellant.

No. 00-2667. Appeals, States Court

United

Third Circuit. 10, 2001. Sept.

Submitted 2, 2002.

Filed Jan.

Case Details

Case Name: Herr v. Pequea Township

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 11, 2001

Citation: 274 F.3d 109

Docket Number: 00-2473

Court Abbreviation: 3rd Cir.