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Adams Outdoor Advertising Ltd. Partnership v. Pennsylvania Department of Transportation

United States District Court, E.D. Pennsylvania

June 5, 2018





         Plaintiff Adams Outdoor Advertising Limited Partnership (“Adams”), whose Amended Complaint focused on the Interchange Prohibition, [2] challenges the constitutionality of Pennsylvania's Outdoor Advertising Control Act of 1971, 36 P.S. §§ 2718.101 - 2718.115 (the “Act”). See also Pa. Code §§ 445.1 - 445.9. On February 9, 2018, this Court dismissed Adams's vagueness challenge regarding the 500-feet spacing requirement in the Interchange Prohibition, as well as Adams's substantive due process and equal protection claims.[3] The claims that survived the Motion to Dismiss are Adams's claim that the Interchange Prohibition fails First Amendment scrutiny, the facial challenge to the Act under the First Amendment based on the absence of any time limits for PennDOT to act on applications for sign permits, and Adams's as-applied challenge under the First Amendment based on the one-year delay before PennDOT decided its permit application. Adams has filed a Motion for Reconsideration asking this Court to reconsider its ruling dismissing Adams's vagueness challenge. The parties have also filed cross-motions for summary judgment.

         For the reasons set forth below, because Adams does not cite any justification for reconsideration of the decision on the Motion to Dismiss, the Motion for Reconsideration is denied.

         Summary judgment is granted in Adams's favor based on the lack of time limits in the Act, and the permit requirement in 36 P.S. § 2718.107 is declared unconstitutional. The need for the existence of time limits in government issuance or denial of permit applications is based on the decision of the United States Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965).

         Summary judgment as to Adams's constitutional challenge to the Interchange Prohibition and the exemptions in §§ 2718.104 and § 2718.105(c)(2)(iv) is granted in Richards's favor.

         Adams's as-applied challenge to the Act based on the one-year delay before its application was decided is now moot.


         The Act was passed in 1971 to “control the erection and maintenance of outdoor advertising devices in areas adjacent to the interstate and primary systems.” 36 P.S. § 2718.102. The purpose of the Act is to “assur[e] the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the national policy to protect the public investment in the interstate and primary systems; to promote the welfare, convenience and recreational value of public travel; and to preserve natural beauty.” Id. The Secretary of PennDOT is tasked with enforcing the Act and promulgating rules and regulations governing outdoor advertising devices. 36 P.S. §§ 2718.106 - 2718.107. The current Secretary of PennDOT is Defendant Leslie S. Richards.

         Section 105(c)(2) of the Act contains restrictions, which must be “strictly adhere[d] to” by the secretary, on the spacing of outdoor advertising signs. 36 P.S. § 2718.105(a), (c)(2). For sign structures “outside the boundaries of cities of all classes and boroughs, no structure may be erected adjacent to or within five hundred feet of an interchange or safety rest area, measured along the interstate or limited access primary from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way.” 36 P.S. § 2718.105(c)(2)(i) (“Interchange Prohibition”). Since 1997, PennDOT has interpreted and applied the 500-feet spacing restriction in the Interchange Prohibition to both sides of a divided highway, meaning that a structure across from an interchange would be considered nonconforming if within 500 feet of the interchange. See Am. Compl. Ex. B, ECF No. 10 (“1997 Strike-Off Letter”). The Section further provides that “for purposes of determining spacing requirements, ” “[o]fficial[5] and ‘on premise' signs, [6] as defined in section 131(c) of Title 23, United States Code, shall not be counted nor shall measurements be made from them.” 36 P.S. § 2718.105(c)(2)(iv).

         Adams “is in the business of off-premise signs commonly referred to as billboards, . . . [and] of selling the space on those off-premise signs to advertisers.” Lois Arciszewski[7] Dep. 20:6-8, 24 - 21:1, ECF No. 31-3. “An off-premise sign by definition advertises a product or service that's not located on the land parcel where the sign structure is located.” Id. at 20:15-18. The advertisements could be of commercial or non-commercial messages. Id. 21:2-13. At times, Adams constructs billboards but may also hire contractors to construct the billboards. Id. at 22:2-10.

         On March 8, 2016, Adams submitted to PennDOT an application to construct an off-premise sign on the east bound side of State Route 22 in Hanover Township, Northampton County, Pennsylvania. Arciszewski Dep. Ex. 3. On the west bound side of Route 22, across from the proposed sign location, is an interchange. Id. at 58:17-20. The proposed sign would be within 500 feet of the interchange on the opposite side of Route 22. Id. at 58:13-20. Adams acknowledges that the location of its proposed sign would be nonconforming with the Act, as interpreted by the 1997 Strike-Off Letter. Id. at 61:8-23.

         Adams had acknowledged the nonconforming nature of its sign in July 2014, but contacted PennDOT in early 2015, prior to filing the application, to discuss the proposed sign. Id. at 62:10 - 69:4. In March 2015, PennDOT advised Adams that the proposed location would not be permitted. Id. at 64:19 - 65:6. Nevertheless, Adams continued to engage in discussions with PennDOT, which maintained its position that the sign location was nonconforming. Id. at 65:3 - 69:5. Adams threatened to file legal action, sending PennDOT a draft of the complaint later filed in the instant action, but then submitted the permit application to PennDOT on March 8, 2016. Id.

         On May 9, 2016, PennDOT sent a letter to the Chief of Surveys requesting a survey of the proposed sign location. See Stephen R. Kovatis Dec. Ex. B, ECF No. 31-14. On May 15, 2016, PennDOT conducted a site visit, with both PennDOT and Adams representatives present. Id. at 55:9 - 57:8. The next communication between PennDOT and Adams was on February 3, 2017, when Adams sent an e-mail to PennDOT inquiring into the status of the application. Id. at 62:3-21. On February 6, 2017, PennDOT requested additional information related to the application, which Adams promptly provided. Id. at 75:16-23. The survey was completed on March 6, 2017, and the final drawing was completed on April 24, 2017. The same day, April 24, 2017, PennDOT officially denied the application because the proposed sign would be located within 500 feet of an interchange in violation of the Interchange Prohibition. Arciszewski Dep. at Ex. 4.

         Adams timely filed an administrative appeal of the denial. Id. at 76:8-24. Shortly thereafter, Adams requested a stay of the administrative proceedings due to the pendency of the instant action, which was initiated on March 20, 2017. Kovatis Dec. Ex. C; ECF No. 1.


         A. Motion for Reconsideration

         “The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). “Accordingly, a judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion . . .; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “It is improper on a motion for reconsideration to ask the Court to rethink what [it] had already thought through--rightly or wrongly.” Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993) (internal quotations omitted). “Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly.” Continental Casualty Co. v. Diversified Indus., 884 F.Supp. 937, 943 (E.D. Pa. 1995).

         B. Motion for Summary Judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A disputed fact is “material” if proof of its existence or nonexistence might affect the outcome of the case under applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 257.

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once such a showing has been made, the non-moving party must go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts”). The party opposing the motion must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. The court must consider the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         IV. ANALYSIS

         After a decision on the Motion to Dismiss was entered, Adams filed a Motion for Reconsideration, asking this Court to reconsider its decision dismissing the constitutional vagueness challenge to the Act. Shortly after this Motion was ripe for consideration, the parties completed discovery. They have since filed cross-motions for summary judgment.

         In its Motion for Summary Judgment, Adams argues that it is entitled to summary judgment because: (1) the Act is a content-based restriction on speech that violates Adams's First Amendment rights, as applied through the Fourteenth Amendment, because the restrictions contained in the Interchange Prohibition do not further a compelling governmental interest and are not narrowly tailored; (2) the Act, on its face, violates the First Amendment because it does not contain any deadlines for PennDOT to grant or deny sign permits; and (3) the Act, as-applied, violates the First Amendment because PennDOT's delay of over a year to respond to its permit application was unreasonable.

         In its Motion for Summary Judgment, Richards contends: (1) Adams lacks standing to pursue a challenge to the on-premise sign exemption and the official sign exemption because Adams engages exclusively in the construction of off-premise signs and has suffered no constitutional injury from either of these exemptions; (2) the exemptions do not change the content-neutrality of the Act, and the Act satisfies constitutional scrutiny; (3) there is no constitutional requirement that the Act, as a content-neutral regulation, provide a time limit for PennDOT to decide permit applications; and (4) Adams's as-applied challenge is moot because PennDOT has acted on its permit application and this Court cannot issue an injunction ordering PennDOT to take action that it has already taken.

         A. There is no basis to reconsider this Court's decision dismissing Adams's vagueness challenge, and the Motion for Reconsideration is denied.

         In the Motion for Reconsideration, Adams does not assert that there was an intervening change in the controlling law, nor does it cite to any new evidence that was not available at the time of the opinion on the Motion to Dismiss. Rather, Adams simply disagrees with this Court's decision to dismiss the constitutional vagueness challenge to the Act, and alleges that manifest injustice will result if reconsideration is not granted. But see Glendon Energy Co., 836 F.Supp. at 1122 (holding that it is not proper “on a motion for reconsideration to ask the Court to rethink what [it] had already thought through--rightly or wrongly”). Adams argues that this Court erred in relying on the Pennsylvania Commonwealth Court's opinion in George Wash. Motor Lodge Co. v. Commonwealth, Dep't of Transp., 545 A.2d 493, 494 (Pa. Commw. 1988), because PennDOT determined in a Proposed Report in 1989 that the case was not controlling. Adams also disagrees with this Court's reliance on Kegerreis Outdoor Adver. Co. v. DOT, 157 A.3d 1033, 1039 (Pa. Commw. Ct. 2017), asserting that the case decided the meaning of the term “interchange” under the Act, not the meaning of “main-traveled way” as it applies to a “divided highway.”

         After review, this Court concludes that Adams's arguments do not show any need to correct a clear error of law or fact, or that manifest injustice will result if reconsideration is not granted. First, as to this Court's reliance on George Wash. Motor Lodge Co., that case sets forth the current[8] holding of the Pennsylvania Commonwealth Court regarding the constitutionality of PennDOT's interpretation of the Interchange Prohibition as applying to structures on both sides of the highway.[9] See George Wash. Motor Lodge Co., 545 A.2d at 554-59 (holding that PennDOT's interpretation of the Interchange Prohibition as requiring the measurement of the distance between a sign and any intersection to be determined “no matter where the location, ” whether on the same side or both sides of the main-traveled way, “was not erroneous”). Reliance thereupon was therefore proper. Furthermore, this Court is not bound by PennDOT's interpretation of case law and, in light of the 1997 strike-off letter, not even PennDOT currently follows its reasoning in the 1989 Proposed Report.

         Second, Adams's suggestion that this Court's reference to Kegerreis Outdoor Adver. Co. was in error is also without support. This Court made one reference in its opinion to this case, as a “see also” citation to support its determination that the Commonwealth Court's construction of the Act in George Wash. Motor Lodge Co. removed any constitutional vagueness. See Opn. 15. In Kegerreis Outdoor Adver. Co., although the court was deciding whether the ramps at issue were “interchanges, ” the court reasoned that “the language of the ‘Interchange Prohibition' itself provides guidance wherein it discusses the measurement of 500 feet . . . .” Kegerreis Outdoor Adver. Co, 157 A.3d at 1040 (citing George Washington Motor Lodge Co., 545 A.2d at 495). The court summarized the holding in George Wash. Motor Lodge Co. as: “rejecting applicant's interpretation of the 500 feet requirement in the ‘Interchange Prohibition' as only applying to the side of the roadway from where the sign is visible and accepting DOT's interpretation of this requirement as applying to any and all exits or entrances from the sign.” Id. It is clear from this quotation that even though the court in Kegerreis Outdoor Adver. Co. was not addressing whether the Interchange Prohibition applies to ramps on both sides of a divided highway, the opinion in George Wash. Motor Lodge Co., which did decide this specific issue, remains good law, which was the sole purpose of this Court's “see also” reference to Kegerreis Outdoor Adver. Co..

         Finally, Adams repeats its argument that the Act is unconstitutionally vague because PennDOT changed interpretations over the years and PennDOT's current interpretation is “in direct conflict with the plain meaning of the text of the statute.” Adams's Mot. Reconsider. ¶ 9, ECF No. 27. Adams does not offer any new evidence to show that PennDOT's enforcement was arbitrary; rather, it merely seeks leave to conduct discovery to satisfy its claim. Id. at ¶ 13. But, a plaintiff is not entitled to conduct discovery where a “complaint is deficient under Rule 8.” Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009); see also Mann v. Brenner, 375 Fed.Appx. 232, 239-40 (3d Cir. 2010) (“A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and therefore may be decided on its face without extensive factual development.”). Moreover, this argument is moot because discovery is now complete. It is clear that Adams disagrees with PennDOT's current interpretation of the Act, but asserting an unsupported constitutional claim in the United States District Court is not the proper means to seek redress. See 67 Pa. Code § 491.3; Harbor Adver., Inc. v. DOT, 6 A.3d 31, 32 (Pa. Commw. Ct. 2010) (considering the petitioner's challenge to PennDOT's regulatory interpretation in a petition for review). Furthermore, the mere disagreement with an agency's interpretation of an Act, or its changed interpretations over the years, does not state a vagueness claim. See Mannix v. Phillips, 619 F.3d 187, 200-01 (2d Cir. 2010) (determining that a change in the interpretation of a statute does not mean that the statute is necessarily unconstitutionally vague). For the reasons set forth in the Opinion on the Motion to Dismiss, this Court concluded that Adams failed to show that the Interchange Prohibition either (1) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, or (2) authorizes or even encourages arbitrary and discriminatory enforce. See Hill v. Colorado, 530 U.S. 703, 732 (2000). Adams has not offered any reason to reconsider this determination.

         The Motion for Reconsideration is denied.

         B. Summary judgment is entered in favor of Richards as to Adams's claim that the Interchange Prohibition is an unconstitutional restraint on free speech.[10]

         As previously mentioned, Adams's claim that the Interchange Prohibition is unconstitutional because it restricts free speech in violation of the First Amendment survived the motion to dismiss stage. Although this Court previously concluded that the Interchange Prohibition is not unconstitutionally vague, it has ...

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