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Paulus, Adrian and Keiler v. Pennich

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


March 22, 1985

PAULUS, ADRIAN AND KEILER, JOHN AND CENTRUM PRIME MEATS
v.
D. W. PENNICH, CHAIRMAN, THE PENNSYLVANIA LIQUOR CONTROL BROAD AND THE PENNSYLVANIA LIQUOR CONTROL BOARD AND STEVEN STONE, ESQUIRE AND EDWARD S. ELLERS, ESQUIRE AND ARNOLD LEE LIPMAN AND ARLENE LOVE LIPMAN, HUSBAND AND WIFE AND HONORABLE SAMUEL RAPPAPORT AND WASHINGTON SQUARE WEST PROJECT AREA COMMITTEE AND WASHINGTON SQUARE WEST CIVIC ASSOCIATION ADRIAN PAULUS, ET AL., APPELLANTS

Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 83-2887, District Judge: Honorable Joseph L. McGlynn, Jr.

Author: Hunter

Before: HUNTER, GARTH, and VAN DUSEN, Circuit Judges

MEMORANDUM OPINION OF THE COURT

HUNTER, Circuit Judge :

1. This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania, dismissing with prejudice an action under 42 U.S.C. § 1983 brought by Adrian Paulus, John Keiler, and Centrum Prime Meats, Inc. (collectively referred to as "Centrum") against Washington Square West Project Area Committee ("PAC"), Washington Square West Civic Association, individual members of these two entities, Pennsylvania State Representative Samuel Rappaport, the Pennsylvania Liquor Control Board ("the Board"), and its Chairman. We will affirm the judgment of the district court.

2. In January 1980, Centrum purchased a delicatessen in Philadelphia's Washington Square area and entered into an agreement to purchase the establishment's Eating Place License, permitting the sale of beer, from the prior owner. The Board's approval was necessary for this transfer to take effect. Centrum solicited PAC's support of its application to the Board, but PAC determined to oppose the license transfer, allegedly because some of its members had financial interests in a rival establishment, the Corner Deli. Beginning in May, 1980, PAC lobbied state legislators, including Rappaport, to oppose Centrum's application. In August 1980, Rappaport and the other individual defendants testified in opposition to Centrum's application at an administrative hearing before the Board, which denied the application, although it had approved a similar application from the Corner Deli two months earlier. Centrum then challenged the Board's decision in the Pennsylvania state courts, and again PAC members testified against Centrum. Ultimately, the Commonwealth Court of Pennsylvania instructed the Board to grant the license to Centrum, holding that the Board had abused its discretion in bowing to "political pressures" and denying Centrum's application, while granting the Corner Deli's. See Centrum Prime Meats, Inc. v. Pennsylvania Liquor Control Board, 455 A.2d 742 (1983).

3. In June, 1983, Centrum commenced this action, alleging that the individual defendants' actions amounted to a conspiracy with the Board in violation of 42 U.S.C. § 1983, and seeking money damages.*fn1 The district court held that the defendants' efforts to prevent Centrum from obtaining the license through lobbying and testimony before the Board and the state court were protected under the first amendment Noerr-Pennington doctrine announced in Eastern Railroad Presidents Conference v. Noerr-Motor Freight, 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965); and California Motor Transport Co. v. Trucking, Unlimited, 404 U.S. 508 (1972). Alternatively, the district court held that, even if the Noerr-Pennington doctrine did not apply, Centrum's § 1983 action was time-barred under the most analogous state statute of limitations, Pennsylvania's two-year statute for abuse of process. The district court therefore dismissed Centrum's complaint with prejudice.

4. On appeal, Centrum argues that the defendants' conduct falls into the sham exception to the Noerr-Pennington doctrine, because they purported to oppose Centrum's license application on statutory grounds, while allegedly their true motivation was financial self-interest. We need not decide whether this allegation is sufficient to invoke the sham exception, since we agree with the district court that Centrum's claim is governed by the two-year statute of limitations for abuse of process, and is therefore time-barred.

5. Attempts to influence political and judicial decisions that lose their first amendment protection under Noerr-Pennington's sham exception are frequently analogized to the state tort of abuse of process. See California Motor Transport, 404 U.S. at 513; Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 471 (7th Cir. 1982). Centrum, however, argues that Pennsylvania's six-year statute of limitations for economic torts applies to this action, attempting to analogize the claim here to one for interference with contractual relations and "driving out of business." We find this analogy inapposite. As Centrum itself argued before the district court, the complaint read in its most favorable light alleges a conspiracy to "mak[e] a sham of the Pennsylvania Liquor License application procedure." Such an allegation is squarely analogous to one of abuse of process. Since in § 1983 actions federal courts must apply the most analogous state statute of limitations, the district court properly looked to Pennsylvania's two-year statute, and held Centrum's claim, brought more than two years after any defendant had testified against Centrum's application, to be time-barred.

6. Accordingly, the judgment of the district court will be affirmed.


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