United States District Court, E.D. Pennsylvania
OPINION PLAINTIFF'S MOTION FOR RECONSIDERATION,
ECF NO. 27-DENIED PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, ECF NO. 30 -GRANTED IN PART, DENIED IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF NO.
31-GRANTED IN PART, DENIED IN PART
F. LEESON, JR. UNITED STATES DISTRICT JUDGE.
Adams Outdoor Advertising Limited Partnership
(“Adams”), whose Amended Complaint focused on the
Interchange Prohibition,  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. 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.
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.
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).
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
as-applied challenge to the Act based on the one-year delay
before its application was decided is now moot.
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.
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 and ‘on premise' signs,
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).
“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 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.
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.
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.
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
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.
STANDARDS OF REVIEW
Motion for Reconsideration
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).
Motion for Summary Judgment
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.
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).
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.
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.
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.
There is no basis to reconsider this Court's decision
dismissing Adams's vagueness challenge, and the Motion
for Reconsideration is denied.
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
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 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. 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
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
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.
Motion for Reconsideration is denied.
Summary judgment is entered in favor of Richards as to
Adams's claim that the Interchange Prohibition is an
unconstitutional restraint on free
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 ...