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July 13, 1982


The opinion of the court was delivered by: POLLAK


 LOUIS H. POLLAK, District Judge.

 This action arises out of an unsuccessful attempt by the plaintiff to sell a parcel of land located in Falls Township, Bucks County, known as "Rock Run." On April 10, 1978, the plaintiff entered into an agreement of sale of Rock Run that depended, in part, upon the final approval by the Township of development plans for the parcel. When this approval was not forthcoming, the purchaser withdrew from the agreement and, apparently unable to recoup its purchase money deposit from plaintiff voluntarily, instituted a suit in this court for its return. W-W Rock Run v. Glassman, C.A. No. 79-2037 (E.D.Pa.). The plaintiff's defense in that action is that she had performed her part of the contract, but that Falls Township had illegally refused to acknowledge that the development plans were approved as a matter of law. Plaintiff was granted leave to join the Township as a third-party defendant in that action.

 On July 26, 1979, plaintiff filed this related action directly against the Township, its Board of Supervisors and the Township Solicitor. She alleged that in failing to acknowledge that the aforesaid development plans were approved and by imposing oppressive requirements as pre-conditions to the issuance of building permits, the defendants violated her federal constitutional rights under the due process, the equal protection and takings clauses. The new action was brought under 42 U.S.C. § 1983; plaintiff also alleged certain state law claims brought under this court's pendent jurisdiction.

 Defendants then moved to dismiss the complaint on several grounds including, inter alia, failure to state a cognizable claim under § 1983. Rejecting the various grounds for dismissal put forward by defendants, I denied the motion to dismiss in a memorandum filed on March 31, 1980. I concluded that discovery would aid in the determination of whether plaintiff could indeed make out a constitutional claim for relief, and I suggested that defendants could renew their challenge to plaintiff's claim in the form of a motion for summary judgment at discovery's conclusion, if they then considered such a motion appropriate. A substantial period of discovery ensued, and a voluminous record of documentary and testimonial evidence has been assembled. Defendants now move for summary judgment under Rule 56, F.R.Civ.P.


 Summary judgment is proper only when the record clearly establishes that no genuine issue of material fact remains to be tried and that the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). Any doubt respecting the existence of material factual issues must be resolved against the moving party, and all inferences from the underlying facts must be viewed in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Company, 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).

 In view of these guidelines, the undisputed facts in this matter can be stated as follows.

 In August, 1973, plaintiff filed with the Township of Falls an application for approval of site plans for the development of a project known as "Rock Run Village." At the time plaintiff filed these preliminary plans, her property, Rock Run, was zoned "G-A" (Garden Apartments) under the Falls Township Zoning Ordinance of 1955 which was then in effect. G-A zoning permitted the kind of development projected in plaintiff's site plans. However, after plaintiff submitted these plans, the Township Board of Supervisors rezoned Rock Run from G-A to "R-1", a classification which does not permit the type of development set out in the plans. The Board of Supervisors also rejected and returned plaintiff's site plans on the ground that they did not contain sufficient information. Plaintiff challenged both these actions by the Board through administrative and judicial channels, and on May 1, 1974, the Court of Common Pleas of Bucks County declared the rezoning of Rock Run illegal and void. On February 14, 1975, the same court entered an order deeming plaintiff's preliminary plans approved.

 Acting through her then attorney, William J. Carlin, plaintiff filed with the Township on March 25, 1975 what she regarded to be her final plans for the development of Rock Run. Plaintiff never received formal notice that the Township regarded these plans as a submission for final approval. Neither the Township Board of Supervisors, nor its Planning Commission, set a date for a hearing on the plans, nor did plaintiff ever receive notice that the submitted plans had been formally approved or rejected.

 Mr. Carlin, then and now a township solicitor for a community neighboring Falls Township and an attorney well-versed in local zoning procedures and practices, testified on deposition that his normal practice in situations such as this, where townships have allowed ninety days or more to pass without taking formal action on submissions for site plan approvals, was to "file an appeal" pursuant to section 508(3) of the municipalities Planning Act, 53 P.S. § 10508(3), with the Court of Common Pleas to secure a legal "determination that the plans were deemed approved" by action of law. *fn1" Deposition of William J. Carlin at 149-150. But in this instance Carlin decided on behalf of his client not to press the Township Board of Supervisors to take formal administrative action respecting her plans or to seek a judicial determination that the plans were deemed approved by action of law. Instead, he decided simply to go forward with the next, and final, stage of ushering plaintiff's project through the local procedures, seeking the requisite building permits.

 Carlin based his decision on several considerations. First, in his view, the Township's Board of Supervisors had already demonstrated an antagonism toward plaintiff's project by what Carlin regarded as its obstructionist actions on her preliminary plans. Second, Carlin had, by late June, 1975, begun to confer and correspond with the Township's Town Manager, Gus Bauer, regarding plaintiff's application for building permits, and Bauer had specified to him various measures which plaintiff had to take in order to receive building permits. *fn2"

 Among the prerequisites for receiving a building permit from the township is prior approval of one's final site plans. Because Bauer did not specify final plan approval as a hurdle plaintiff had yet to clear to get her building permits, Carlin concluded that he and Bauer shared a common working assumption that the Township regarded or would regard the plans as constructively approved by virtue of § 508. *fn3" Carlin conceded in deposition that Bauer never confirmed that plaintiff's final plans had been approved, and "no township official, that is no elected township official, ever advised me that the [final] plans were approved." Carlin Deposition at 154. Nonetheless, encouraged by Bauer's cooperative spirit, Carlin decided that "dealing with the town manager" would prove a more expeditious way of moving plaintiff's project along than "getting hung up with the [Township] solicitor or with the Township elected officials [i.e., the Board of Supervisors]." Id. at 156.

 Carlin continued to consult with the Township Manager and with other Township officials, including the Township Engineer and its Building Official, concerning the preparation of plaintiff's application for building permits until in mid-July, 1975, he encountered an obstacle in the form of a moratorium on the issuing of sewer permits by the Township's Sewer Authority. Because a sewer permit was among the pre-requisites to receiving a building permit, plaintiff's endeavors toward that end were halted until the Sewer Authority lifted its moratorium in May, 1977.

 On December 5, 1975, during the "sewer moratorium," the Township of Falls put into effect a new zoning code encompassing the whole township. Under the new code, Rock Run fell into a new zoning designation known as "medium-high density residential" ("MHR") which does not support the kind of condominium units which plaintiff sought to construct. However, section 508(4) of the Pennsylvania Municipalities Planning Act, 53 P.S. § 10508(4), provides, in relevant part, that


When an application for approval . . . whether preliminary or final, has been approved . . . no subsequent change . . . in the zoning . . . plan shall be applied to affect adversely the right of the applicant to commence . . . the approved development . . . within three years from such approval.

 Hence, plaintiff's condominium project appeared to be insulated from the zoning change wrought by the 1975 code at least until February 14, 1978. *fn4" By plaintiff's lights this three-year grace period was one which ought to have been considered tolled during the span of the Township's "sewer moratorium." However, plaintiff never applied for such an extension of her three-year grace period nor did she seek acknowledgment of her view of the issue from the Board of Supervisors.

 The question whether plaintiff's grace period had expired, and the question whether -- and, if so, when -- plaintiff's project had received final approval, first arose as matters of concern between plaintiff and the Township in June-July, 1978. At that time, defendant David Moskowitz, then Township Solicitor, was engaged in drafting a "development agreement" between the Township and plaintiff. *fn5" Final approval of plaintiff's site plans were a prerequisite for this agreement as they were for the building permits. And, on July 28, 1978, in the course of completing a draft of the agreement, Moskowitz requested from Carlin certain information respecting Rock Run including, inter alia, the date on which plaintiff's plans received final approval. In response, Carlin provided Moskowitz with a copy of the February 14, 1975 Court of Common Pleas order deeming plaintiff's preliminary plans approved and a list of the plans which plaintiff submitted to the Township on March 25, 1975. At about the same time, Moskowitz also asked the Township official responsible for zoning code enforcement, Mr. Paul Ottey, to determine when plaintiff's plans received final approval, and Ottey informed him that the Township had no record of a submission of plans earmarked for final approval and no record of ever having granted final approval to plaintiff's plans. Moskowitz directed Ottey to continue searching the Township's records, and he then also directed the Township Engineer, Mr. Paul Piccoli, to check whether approved final plans had been filed by plaintiff with the County Recorder of Deeds. *fn6"

 During August and early September, 1978, Carlin and Moskowitz had a number of conversations regarding the status of plaintiff's plans. In these conversations, Moskowitz also broached the question of whether plaintiff did not have a "§ 508 problem." More than three years had passed since her preliminary plans had been deemed approved; therefore, her project appeared to be no longer insulated from the new 1975 zoning code. Carlin put forward his opinion (1) that the township was obligated to approve the plans which plaintiff had submitted in March, 1975 -- in what she regarded as a request for final plan approval but which the township had not recorded as such, although its officials had used these plans in assessing what modifications and additions plaintiff had to make in order to receive building permits -- as long as the plans substantially conformed to plaintiff's preliminary plans; and (2) that the township was obliged to extend plaintiff's § 508 grace period for an amount of time equal to the "sewer moratorium."

 Moskowitz told Carlin in these conversations that he thought Carlin's view of these two issues was probably correct, *fn7" and indicated that he would be willing to recommend to the Board of Supervisors that they act accordingly. However, Carlin never requested that Moskowitz pursue the matter with the Board of Supervisors. Their discussions ceased abruptly as a result of the events which precipitated this suit. After the purchaser, W-W Rock Run Corporation, withdrew from its agreement of sale with plaintiff on September 28, 1978, and plaintiff's "deal was dead," plaintiff withdrew from the process of negotiating a development agreement with the Township, and the § 508 questions which the attorneys had discussed became, from plaintiff's perspective, academic. Carlin Deposition at 180.

 As I have already noted, plaintiff entered into the agreement of sale of her property, Rock Run, on April 10, 1978. The agreement set September 28, 1978 as the settlement date. Also included in the agreement were provisions requiring that the final plans for Rock Run be fully approved by the Township, and that all necessary building permits be available to the purchaser prior to settlement. Agreement of Sale, para. 8, Exhibit E to Defendants' Motion for Summary Judgment. On September 11, 1978, a Norman Powell, acting as a representative of the purchaser, W-W Rock Run Corporation, asked David Cooper, the Township's Zoning Officer and defendant Dale Saxman, a member of the Board of Supervisors, about the status of the project. Cooper and Saxman told Powell that plaintiff had not secured from the township final plan approval for the project and that building permits were, therefore, not then available. Powell reported back on these conversations to the principals of W-W Rock Run, and, partly on the basis of this report, the corporation withdrew from its agreement of sale with plaintiff.

 Another factor which figured in W-W Rock Run's decision to withdraw from the agreement was the fact that the draft development agreement prepared by Moskowitz imposed a sizeable cash escrow requirement on the would-be developer of Rock Run. *fn8" Shortly before the settlement date, September 28, 1978, the purchaser protested to Mitchell Stanner, plaintiff's real estate broker for Rock Run, about the cash escrow requirement, and Stanner asked the Township code enforcement official, Paul Ottey whether a bond or letter of credit could be substituted for cash. *fn9" Ottey informed him that the Board of Supervisors would insist on cash. At about the same time, plaintiff's husband, Donald Glassman, raised the same question with the Solicitor, Moskowitz, and received the same response. Glassman also inquired whether the escrow amount and particularly the administrative fee were negotiable, and Moskowitz replied that they were not.

 The common practice in this period among developers negotiating development agreements with Falls and other townships in Bucks County when they were dissatisfied with any of the draft terms of such agreements was to meet with the Township's Board of Supervisors and attempt to negotiate changes in the drafts. *fn10" Although aware that this avenue was open to her, plaintiff never availed herself of it. Moskowitz only mailed the draft to Carlin on September 5, 1978, and by September 28, as I have noted, plaintiff's deal with W-W Rock Run was dead, and with its plaintiff's concern regarding the draft's contents.


 As I have observed, the complaint alleges that defendants' conduct violated her rights under three provisions of the Constitution: the takings clause, the due process clause, and the equal protection clause. At oral argument, counsel for plaintiff withdrew plaintiff's claim under the takings clause and announced that she would rely solely on her two other constitutional claims. *fn11" Counsel also announced that plaintiff's due process claim rests upon defendants' conduct respecting the site plans plaintiff submitted on March 25, 1975, and that her equal protection claim is grounded on the various escrow requirements contained in the draft agreement prepared by defendant Moskowitz. *fn12"

 A. Plaintiff's Due Process Claim

 The crux of plaintiff's due process claim is set out in the following paragraphs of her complaint:


35. In violation of its clear statutory mandate and in an effort to deprive plaintiff of due process of law, the defendants have refused to issue approval of the final plans for the development of plaintiff's property or acknowledge that final plans have been deemed approved by operation of law, but instead have illegally withheld approval and maintained that said final plans have not been deemed approved by operation of law.


36. The action of the defendants in failing to acknowledge the approval of the final plans submitted by the plaintiff is contrary to applicable Township Ordinances and the laws of the Commonwealth of Pennsylvania and was and is being done solely for the purpose of denying plaintiff the lawful development of her property.


38. Defendants, acting individually and in concert, have undertaken to frustrate, hinder, delay and prevent the development of plaintiff's property solely for the purpose of inflicting economic harm upon plaintiff under the guise of law.

 Plaintiff, then, does not complain of the rules created by statute and local ordinance to govern the approval of final plans. *fn13" Rather, she alleges deliberate transgressions of those rules, and contends that these alleged transgressions violated her right to due process.

 It is a doctrine of relatively ancient vintage that "mere violation of a state statute does not infringe the federal constitution." Snowden v. Hughes, 321 U.S. 1, 11, 64 S. Ct. 397, 402, 88 L. Ed. 497 (1944); see also Owensboro Water Works Company v. Owensboro, 200 U.S. 38, 47, 26 S. Ct. 249, 252, 50 L. Ed. 361 (1906). The Supreme Court has long observed this distinction between state law violations giving rise to a cause of action in the state courts and constitutional violations cognizable in federal courts; the distinction has not been eroded by the sea-change in due process analysis brought about by such cases as Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1971), and Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1974). Those cases fashioned a two-step due process analysis inquiring first whether an individual has a legitimate claim to "liberty" or "property" and, second what process is due if he is deprived of such a claim. For purposes of the first inquiry, the Court has turned to state and local law as potential sources of "liberty" and "property" interests. But for purposes of the second inquiry, it has measured the process that is due by looking to federal constitutional standards. See Vitek v. Jones, 445 U.S. 480, 490 n.6, 100 S. Ct. 1254, 1262 n.6, 63 L. Ed. 2d 552 (1980).

 The independent federal standard which applies in cases such as this one -- where officials are charged with transgressing the rules intended by local or state lawmakers to govern their conduct -- is one of non-arbitrariness. *fn14" Block v. Potter, 631 F.2d 233 (3d Cir. 1980); South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.) (en banc) cert. denied, 416 U.S. 901, 94 S. Ct. 1625, 40 L. Ed. 2d 119 (1974) ("the only question which the federal district courts may consider is whether the action of the zoning commission is arbitrary and capricious").

 In addition, the individual defendants, the Solicitor and the Supervisors, are entitled to a qualified immunity which is not enjoyed by the Board or the Township. Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). Thus, with respect to the individual defendants plaintiff must be capable of showing intentional violations of her rights or reckless disregard for them. Id.

 Plaintiff has surely alleged such intentional infringement of her right to fair treatment at defendants' hands; she has alleged malicious treatment meted out for impermissible purposes unrelated to "the general welfare." See South Gwinnet Venture, supra at 7; Block v. Potter, supra at 236. But, for reasons which follow, I have determined that plaintiff has not mustered evidence sufficient to raise her allegations to the level of a factual dispute, and I have concluded on the basis of the undisputed facts that defendants are entitled to summary judgment on plaintiff's due process claim.

 1. The Defendant Board of Supervisors and its Defendant-Members, Chimera, Ianni, Saxman, Seller and Vislosky

 The Board of Supervisors quite reasonably raise a query at the threshold of plaintiff's claim against it: What action or conduct on the Supervisors' part does plaintiff contend to have been tainted by arbitrariness or malice? More precisely, where, in the factual narrative which emerges from the record, does one find any actions or omissions by the Board which correspond to plaintiff's of refusal to act respecting her final plans or to acknowledge approval of the final plans by operation of § 508? I am unable to find any such actions or omissions.

 It is undisputed that in late June, 1975, when ninety days had passed from the filing of plaintiff's final plans, plaintiff, through her attorney, decided not to request formal administrative action respecting her plans by the Supervisors or to seek a judicial determination that they were deemed approved. Instead, she chose to rely on the acquiescence of certain of the Township's non-elected administrative officials in going forward with the next stage of the application procedures. *fn15" Hence, in this initial period, no occasion arose for the Supervisors to act in connection with plaintiff's plans -- in an arbitrary fashion or otherwise.

 In the entire time span from March, 1975 to September, 1978, the record reveals only one action respecting plaintiff's plans by the Board of Supervisors. This occurred in early 1978 when, at plaintiff's behest, the Board directed the Township Solicitor, Mr. Moskowitz, to draft a development agreement for plaintiff's project. In preparing this draft agreement, Moskowitz initiated his search for final approved plans and the date of their approval, and this search, in turn, led to the correspondence and conversations between him and plaintiff's attorney which I have recounted.

 Here, again, it is undisputed that plaintiff never sought from the Board of Supervisors, either directly or via Moskowitz, acknowledgment of, or any decision upon, plaintiff's claim that her final plans were "approved" by operation of § 508. Plaintiff stopped pursuing her application without having initiated any contact or negotiations with the Board regarding the development agreement. *fn16" The record simply lacks a jot of evidence from which a fact-finder could infer that at any time during these, no doubt, anxious months in the summer and early fall of 1978, plaintiff suffered an arbitrary action or refusal to act by defendant Board of Supervisors respecting her ill-starred final plans.

 With one exception, the record is silent with respect to distinct acts by the individual defendant-members of the Board of Supervisors, in their official capacities or otherwise. The exception is Mr. Dale Saxman. As I have noted, on September 11, 1978, Saxman told an emissary from W-W Rock Run Corporation, who had been sent to inquire about the status of plaintiff's project with the Township, that plaintiff had not secured final plan approval. In so doing, Saxman merely stated to Powell the upshot of the search for submitted and approved final plans which Moskowitz had initiated in the Township offices. In light of the undisputed facts already recited, a fact-finder could not reasonably infer from this statement, as plaintiff would have me infer, that Saxman, acting in concert with other defendants, was deliberately contriving to thwart plaintiff's project.

 2. Defendant David Moskowitz

 Nothing in plaintiff's pleadings or submissions points me toward any conduct on Mr. Moskowitz's part respecting plaintiff's site plans which plaintiff asserts to have been arbitrary. On the basis of the undisputed facts, I conclude that neither Moskowitz's search of the Township records nor his conduct in discussions and correspondence with plaintiff's attorney was colored by any discernible arbitrariness or bad faith.

 3. Defendant Township of Falls

 Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), teaches that a municipality may be found liable under § 1983. Monell also teaches that to hold a municipality liable under § 1983 a plaintiff must demonstrate (a) either a formal policy, or an informal custom of such long duration as to have the force of law, which (b) causes an unconstitutional deprivation of civil rights by one of its employees. Id. at 691-94, 98 S. Ct. at 2036-37.

 Plaintiff contends that the Township infringed the due process clause by dint of the conduct of various of its administrative officials in first appearing to acquiesce in plaintiff's view that her final plans were "approved" and then, in response to Moskowitz's queries, stating that they could find no record of plaintiff's submission of final plans for Township approval. No doubt this congerie of events was upsetting to plaintiff. However, I have carefully considered the undisputed facts which underlie plaintiff's contention, and I conclude that the narrative which emerges is a tale of some bureaucratic sloppiness but not "arbitrary and capricious" conduct that runs afoul of the due process clause. *fn17" Because I have determined that the Township employees' conduct worked no deprivation of plaintiff's right to due process, I need not consider what bearing Township policy or custom may have had on that conduct.

 B. Plaintiff's Equal Protection Claim

 The allegations which comprise plaintiff's equal protection claim are set out in the margin. *fn18" Essentially, plaintiff contends that the cash escrow requirement and other financing provisions included by Solicitor Moskowitz in the agreement for Rock Run *fn19" imposed on her project conditions which the Township had imposed on no other developers. By imposing these conditions, and asserting that at least some of them were "non-negotiable," the defendants, so plaintiff claims, infringed her constitutional right to equal protection.

 In order to sustain her claim, plaintiff must be capable of showing "purposeful discrimination" on defendants' part aimed at defeating her ambitions for Rock Run. Kadar Corp. v. Milbury, 549 F.2d 230, 236 (1st Cir. 1977); Harrison v. Brooks, supra at 407; Williams v. Patton, 410 F. Supp. 1 (E.D.Pa.1976); see also Snowden v. Hughes, supra. I have culled the pleadings, affidavits, exhibits and depositions, and I find no evidence which could support, either directly or by way of reasonable inference, a finding of intentional discrimination by any of the defendants based on the escrow requirements in plaintiff's development agreement or any statements by defendants about those requirements. In short, the undisputed facts compel the conclusion that defendants are entitled to summary judgment on plaintiff's equal protection claim.

 I find no evidence which could support an inference that in early 1978 when the Board of Supervisors decided to adopt Solicitor Moskowitz's prototype development agreement, the Board, or any of its members, or Moskowitz, intended to single out plaintiff for discriminatory treatment. The undisputed evidence runs in a contrary direction; it supports the conclusion that these defendants, in fashioning and adopting the prototype agreement, implemented a set of policy decisions which they intended to apply to developers generally. Likewise, I can find neither evidence nor the promise of evidence from which a fact-finder could conclude that the particular requirements contained in the draft agreement for Rock Run reveal anything other than a good-faith assessment of what provisions and financial requirements were necessary to protect the Township's interests. *fn20"


 In over two years, plaintiff has proven unable to produce evidence sufficient to transmute the "opprobrious epithets," Snowden, supra at 11, 64 S. Ct. at 402, of malice and discrimination in her § 1983 complaint into factual issues warranting a trial. Instead, she has offered no more than conclusory allegations and suspicions arising out of her disappointment that the Rock Run "deal" fell through. It is time to put away that disappointment. *fn21"

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