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DE BOTTON v. MARPLE TWP.

April 22, 1988

Claude De Botton
v.
Marple Township, et al.



The opinion of the court was delivered by: GAWTHROP

 ROBERT S. GAWTHROP, III, UNITED STATES DISTRICT JUDGE

 Pending before this court is the motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), filed by the defendants, Marple Township, the Marple Township Board of Commissioners, James Phillips, Jean Marie Cella, John Butler, Louis Guerrerra, Barry Dozor, Robert Jordan, Pat Keates, Hugo Yannelli, Maureen Fitzpatrick, Bonnie Scott, Robert Haas, Gerald Connors, Richard Worley, Mark Plafker, and Joseph Aloi. For purposes of simplicity, defendants shall be referred to as "Township."

 BACKGROUND

 Plaintiff, Claude de Botton is the present owner of approximately 17.66 acres of land (tract), located in Marple Township, Delaware County, Pennsylvania. At the time the operative facts in this suit took place, Mr. de Botton was the President of Marple Gardens, Inc., a Pennsylvania corporation that originally owned the tract.

 In May of 1980, the tract was zoned R-1, thereby limiting its use to single-family detached dwellings on not less than 12,000 square foot lots. A few days later, Marple Gardens, Inc. filed a curative amendment challenge to the zoning ordinance to permit the construction of a mobile home park on the tract. The Township scheduled hearings on June 24, 1980, and June 30, 1980, to consider the proposed curative amendment. When the Township cancelled these hearings and refused a request to reschedule them, Marple Township, Inc. filed zoning appeal notices with the Delaware Court of Common Pleas in July and August of that year, based upon the Township's denial of his curative amendment.

 On February 24, 1984, the Court of Common Pleas directed that a zoning permit for a mobile park home park be issued to Marple Township, Inc. On August 7, 1987, the trial court's decision was affirmed by the Commonwealth Court. On January 27, 1987, the Supreme Court denied the Township's petition for allowance of appeal.

 On June 24, 1987, Mr. de Botton filed suit in the United States District Court for the Eastern District of Pennsylvania. He alleges: (1) that the Township violated both his substantive and procedural due process rights under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments to the United States Constitution; (2) that the Township's actions constituted a taking of property without just compensation; and (3) that the defendants conspired to prohibit mobile home parks in Marple Township, thereby violating 42 U.S.C. § 1985.

 DISCUSSION

 In considering a motion to dismiss pursuant to Fed.R. Civ. P. 12(b)(6), I must follow, of course, the accepted maxims that all well-pleaded allegations will be accepted as true, that the complaint should be construed liberally, and in favor of the plaintiff, and that a complaint should not be dismissed unless it appears beyond doubt that no set of facts may be proven which would entitle the plaintiff to the relief requested. Dudosh v. City of Allentown, 629 F. Supp. 849, 850 (E.D. Pa. 1985).

 I. Are Plaintiff's Claims Barred by the Statute of Limitations?

 The Township initially contends that all of Mr. de Botton's claims are barred by the statute of limitations. The applicable statute of limitations for Mr. de Bottom's claims under 42 U.S.C. § 1983 is Pennsylvania's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985); Sullivan v. City of Pittsburgh, Pa., 811 F.2d 171 (3d Cir.) cert. denied, 484 U.S. 849, 108 S. Ct. 148, 98 L. Ed. 2d 104 (1987). In Pennsylvania, the limitation period is the two-year limitation provided by 42 Pa. Cons. Stat. Ann. § 5524. Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir.), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985); Syre v. Commonwealth, 662 F. Supp. 550 (E.D. Pa. 1987).

 The plaintiff argues that the statute of limitations accrued on January 27, 1987, when the Pennsylvania Supreme Court denied the Township's petition for allowance of appeal. The plaintiff also suggests that, in any case, the two-year limitation is inapplicable to his direct constitutional claims which, he asserts, are governed by the five-year statute of limitations period applicable to proceedings under the Pennsylvania Eminent Domain Code. See : 42 Pa. Cons. Stat. Ann. 5526.

 A plaintiff's section 1983 claim accrues on the date he knew or had reason to know of the injury which is the basis for his action. Syre v. Com., 662 F. Supp. 550, 553 (E.D. Pa. 1987). In this case, the date implicating the statute of limitations would be June of 1980, when the Township, in effect, denied Mr. de Botton his curative amendment challenge by refusing to hold hearings on the matter. See: Peter Henderson Oil v. City of Port Arthur, Tex., 806 F.2d 1273, 1275 (5th Cir. 1987)(section 1983 action accrued date of city ordinance); McMillan v. Goleta Water Dist., 792 F.2d 1453, 1457 (9th Cir. 1986), cert. denied 480 U.S. 905, 107 S. Ct. 1348, 94 L. Ed. 2d 519 (1987)(section 1983 action accrued date Water District issued denial of plaintiff's application); Rodrigues v. Vallage of Larchmont, N.Y., 608 F. Supp. 467, 477 (D.C. N.Y. 1985)(denial of zoning variances implicated statute of limitations for section 1983 claim). Cf. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, ...


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