274 F.3d 109 (3rd Cir.

2001)

E. MARVIN HERR, INDIVIDUALLY AND T/A MILLWOOD

PARK ASSOCIATES
v.
PEQUEA TOWNSHIP; VIRGINIA K. BRADY,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY;
BRUCE G. GROFF, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; MARTIN P. HUGHES,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
E. MARVIN HERR, APPELLANT
No. 00-2473

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued May 14, 2001
December 11, 2001
1

On Appeal From the United States District Court For the Eastern District of
Pennsylvania (D.C. Civil Action No. 99-cv-00199) District Judge: Honorable
Franklin S. VanAntwerpenEdward M. Posner (Argued) Jeffrey P. Wallack
Drinker, Biddle & Reath 18th and Cherry Streets One Logan Square
Philadelphia, PA 19103, for Appellant.

Kevin J. O'Brien (Argued) Marks, O'Neil, O'Brien & Courtney 1880 Jfk
Boulevard, Suite 1200 Philadelphia, PA 19103, for Appellees.

Before: Scirica, Garth and Stapleton, Circuit Judges

OPINION OF THE COURT

Stapleton, Circuit Judge
4

E. Marvin Herr, a land developer, appeals the grant of summary judgment to

Pequea Township ("Township") and its three supervisors, Virginia Brady,
Bruce Groff, and Martin Hughes (collectively, "defendants"), in this civil rights
action. Herr alleges that his right to substantive due process was violated by an

eleven year campaign of the Township and its officers to delay and obstruct his
development of an industrial park.
5

The defendants adopted a land use plan and a sewer facilities plan based in part
on their view that industrial development within the Township should be
restricted. Over the next eleven years, Herr, who wished to construct an
industrial park and who had applied to the Lancaster County Planning
Commission ("LCPC") for approval of a subdivision plan prior to the effective
date of these plans, sought the necessary authorization for his development
from the LCPC, the Department of Environmental Review ("DER"), the
Environmental Hearing Board ("EHB"), the Zoning Hearing Board ("ZHB"),
and the courts. The Township participated in the proceedings before each of
these bodies. While it acknowledged that Herr's project was grandfathered
under the prior land use plan if he completed it within five years, the Township
insisted that he had no vested right to municipal sewer services under the prior
sewer facilities plan and argued that the Township's new plan should be
enforced. After Herr secured an order from the DER directing the Township to
amend its sewer facilities plan so as to provide municipal sewer service to his
property and obtained a land use permit from the LCPC, the Township took the
position in further proceedings that not all conditions of the LCPC's approval
had been fulfilled and that the five year grandfathering had expired before
completion of the project. Ultimately, Herr secured the necessary authority to
go forward with his industrial park.

Herr claims that the defendants' conduct with respect to his proposed
development was motivated throughout by a strong desire to preserve
agricultural land and restrain development in the Township. In support of this
claim, he has tendered evidence tending to show that the individual defendants
had run for office on "anti-development" platforms and that their adoption of a
new zoning ordinance and sewer facilities plan was intended to make it more
difficult for developers to secure approvals of their projects. Herr stresses, for
example, that the new zoning ordinance reduced the land zoned industrial by
68 percent.

While Herr points to the defendants' adoption of the new zoning ordinance and
sewer plan as evidence of their "anti-development bias," we do not understand
him to contend that the defendants' actions with respect to those plans violated
his right to substantive due process. Decisions on whether to adopt or amend
zoning ordinances and municipal services plans are legislative ones that must
survive due process review unless "the governmental body could have had no
legitimate reason for its decisions." Pace Resources, Inc. v. Shrewsbury
Township, 808 F.2d 1023, 1034 (3d Cir. 1987). The desire to limit development

is such a legitimate reason. Id.

8

Rather, Herr claims that the defendants conspired to prevent him from securing
the necessary approvals from other government agencies, or to delay the receipt
of those approvals until his project would no longer be grandfathered under the
prior ordinance. In support of this contention, he submitted what he regards as a
"smoking gun" letter from Dr. Alan Peterson, the Chairman of the Pequea
Township Environmental Advisory Council, to the Township's legal counsel
dated February 19, 1994. That letter states in part:

Only Virginia Brady and I in the township know the following: (Do not state
this back to the township in any manner). The owner must sell the lots, then all
land development plans must be approved by 10/94 or they become
nonconforming lots in the Ag. District. Obviously the longer we can stall (if we
can't win this with the [Department of Environmental Review]), the better.

10

App. at 374-75.

11

According to Herr, the defendants' conspiracy consisted of (1) resisting before

the LCPC, the DER, the Board, and the courts Herr's efforts to secure the right
to proceed; (2) instructing its own personnel to carefully scrutinize Herr's
proposal in order to identify any possible problems; and (3) communicating
with the LCPC, the DER, the State Fish Commission, the State Game
Commission, and other governmental agencies voicing various concerns about
the proposed project.

12

Herr relies on a line of our cases which hold that a township or other agency
acting under color of state law denies a landowner substantive due process if it
denies or delays action on his permit application for reasons unrelated to the
merits of the application. See Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d
118, 124-25 (3d Cir. 2000) (holding that delay of permitting process because of
community resistance to proposed low income housing project provided jury
with a basis from which it could reasonably find that decision maker acted in
bad faith or due to an improper motive violating developer's substantive due
process rights); DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 601-02
(3d Cir. 1995) (holding that denial of permit based on decision maker's personal
financial interest, if proven, establishes a violation of the right to be free from
arbitrary and capricious government action); Blanche Rd. Corp. v. Bensalem
Township, 57 F.3d 253, 267-68 (3d Cir. 1995) (holding that conspiracy to delay
permits for industrial park for political reasons unrelated to the merits of an
application is sufficient to establish a substantive due process violation);

Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 696-97 (3d Cir. 1993)
(holding that the jury could reasonably infer improper motive when lease was
allegedly terminated based upon decision maker's economic interest); Bello v.
Walker, 840 F.2d 1124, 1129-30 (3d Cir. 1988) (holding that a municipal
corporation's denial of a building permit for partisan political or personal
reasons unrelated to the merits of the case, if proven, establishes a substantive
due process violation). Herr correctly points out that, while the ultimate issue
before the LCPC and the other governmental bodies was whether to permit a
new industrial park, resolution of that issue properly turned on whether his
development met the criteria established by law. The defendants' opposition,
according to Herr, was motivated by a determination to stop his development
without regard to whether it met those criteria.
13

Unlike the defendants in the cases cited by Herr, however, the Township and its
supervisors were not authorized to issue permits for Herr's industrial park. The
LCPC alone had that authority. Herr's claim is thus not that the defendants
subverted a decision making process by taking irrelevant considerations into
account. It is rather that the defendants contested issues before the bodies
authorized to resolve various permitting issues because they wished to defeat or
delay the approval of Herr's project by those bodies. This claim is materially
different from the claims asserted in Bello and its progeny.

14

We conclude that there is evidence from which a trier of fact could conclude
that the Township's challenged conduct was motivated by a desire to stop Herr's
development. At the same time, we conclude that there is no evidence from
which a trier of fact could conclude that the Township took frivolous positions
or otherwise unreasonably delayed the proceedings before the various state
bodies. We hold that where a township participates in proceedings before other
governmental agencies authorized to resolve issues like those here presented,
the township and its supervisors are not subject to liability for delay occasioned
by those proceedings solely because their participation was motivated by a
desire to delay or prevent the project for which approval is sought.1
I.

15

Herr sought to develop approximately 45 acres of land that he owns in Pequea

Township, Lancaster County, Pennsylvania. By October 9, 1989, he learned of
a proposed land use plan under which the zoning of his land would be changed
so as to permit only agricultural use. On December 5, 1989, Herr submitted to
the LCPC a subdivision plan to construct an industrial park on this property
("Millwood Industrial Park" or "Millwood"). At the time he submitted this plan,
his property was zoned industrial, and the existing sewage facilities plan ("the

1971 sewage facilities plan") was a county-wide plan providing public sewers
pursuant to the Pennsylvania Sewage Facilities Act ("Act 537"). The LCPC
considered and rejected the industrial park plan twice, and Herr resubmitted it
twice. Ultimately, the LCPC granted preliminary conditional approval on
October 9, 1990, and preliminary unconditional approval on February 25, 1991.
16

After Herr's subdivision plan was filed but several months before the LCPC
approvals, Pequea Township, on August 22, 1990, adopted a new Township
map to conform with Lancaster County's comprehensive plan. On the new map,
the land where Herr's proposed industrial park was to be situated was rezoned
from industrial to agricultural. Under Pennsylvania law, Herr was allowed five
years from the date of the preliminary approval to complete his nonconforming development.2 Following adoption of the new zoning, the
Township began to revise its sewage facilities plan to comport with its new land
planning scheme. On June 3, 1992, the Township repealed prior sewage plans
and adopted a new sewage plan. The new plan provided for the extension of
public sewers into areas of the Township designated for development but not
into areas designated for agricultural use. Accordingly, the permitted sewage
disposal for the area in which Millwood was situated was changed from public
sewers to on-lot disposal systems. As required, the Township submitted its
sewage facilities plan to the DER for approval under Act 537.

17

On July 30, 1992, Herr requested that the Township amend its sewage facilities
plan so as to provide for municipal sewer service to Millwood. A little over a
month later, on September 2, 1992, that request was denied.3 Herr then filed a
"private request" with the DER under 35 Pa. Cons. Stat. Ann. S 750.5 seeking
an order requiring the Township to amend its sewage plan as it had been
requested to do.4 At the time of Herr's private request, the Department was still
reviewing the plan that the Township had submitted.

18

On September 28, 1993, the LCPC gave conditional final approval to a final
plan for Millwood that had been submitted on August 3, 1992 ("the August
1992 plan"). The approval was conditioned on Herr's satisfaction of over forty
conditions including his securing approval for his proposed sewage disposal.
On February 8, 1994, the DER granted Herr's private request and issued an
order directing the Township to revise its 1992 sewage plan.

19

Several years of litigation ensued. On March 25, 1994, the EHB reversed the
decision of the DER. In response to this decision, the DER denied Herr's private
request on April 4, 1994. Then Herr appealed, first to the EHB and next to the
Commonwealth Court. On May 31, 1996, the Commonwealth Court reversed
the EHB's decision, found in favor of Herr, and remanded the case for further

proceedings. On remand, the EHB ultimately granted summary judgment on

the sewage disposal issue. The Township and the DER both filed a petition for
reconsideration with the Board, which denied the petition, and then a petition
for review with the Commonwealth Court, which, on July 10, 1998, affirmed
the Board's decision.Pequea Township v. Herr, 716 A.2d 678, 681 (Pa.
Commonw. Ct. 1998).
20

Throughout the "sewer litigation," the Township maintained that the law
specifying the sewer requirements applicable to the Millwood site was the 1992
sewer plan. In support of this view, it took the position that (1) the 1992 plan
became effective without DER approval on October 20, 1992, pursuant to 25
Pa. Code S 71.32(c) (1989),5 and the DER accordingly lacked authority for its
original order; and (2) the statute grandfathering for five years developments
pending approval at the time of a zoning change did not apply to sewer plans
and, accordingly, Herr had no vested right to public sewer service. The Board
agreed with the Township that the 1992 plan became effective on October 20,
1992. The Commonwealth Court did not reach the merits of that issue but did
agree with the Township that the grandfathering provision for zoning
ordinances did not give Herr a right to public sewer services under the 1971
plan. Pequea Township v. Herr, 716 A.2d 678, 684 (Pa. Commonw. Ct. 1998).
The Court nevertheless decided in Herr's favor on the ground that, even if a
landowner's proposal is inconsistent with the applicable municipal sewer plan,
the DER is authorized to require its adoption upon a showing that the
provisions of the municipal plan are "inadequate" to meet the needs of the
landowner. The Commonwealth Court wrote at some length on each of the six
contentions raised by the DER and the Township.

21

On November 29, 1998, once all the sewage issues were settled, the LCPC
determined that Herr met all of the remaining conditions for approval and
permitted recordation of the final land development plan. The Township then
appealed this decision to the Court of Common Pleas, arguing (1) that Herr
failed to meet three of the other conditions imposed by the LCPC when it
conditionally approved the August 1992 plan; and (2) that Herr's vested rights
to application of the pre-existing zoning ordinance had expired because five
years had elapsed since the approval of his preliminary development plan and
no valid extension had been granted by the LCPC.

22

Meanwhile, after recordation, Herr began construction of his industrial park.

During construction, Herr erected a sign advertising the sale of lots and began
excavation. A Township zoning officer issued Herr an enforcement notice
because he believed that Herr had violated the Township's 1992 zoning
ordinance for excavation without a zoning permit and advertising the sale of

the premises without a zoning permit. Herr appealed the enforcement notice to
the Zoning Hearing Board ("ZHB"), arguing that the Township's 1980 zoning
ordinance applied rather than the 1992 zoning ordinance. The ZHB held that,
even if Herr's substantive rights were determined by the earlier zoning
ordinance, he must comply with the procedural requirements of the new
ordinance, including its permit requirements. Herr appealed to the Court of
Common Pleas.
23

The appeals to the Court of Common Pleas were consolidated. On December

29, 1999, the Court decided in favor of Herr and against the Township. With
regard to the issues raised by the Township, the Court held that the LCPC did
not abuse its discretion in granting Herr an extension and allowing recordation
of his plan. With regard to the issue raised by Herr, the Court found that the
1992 zoning ordinance requiring a permit for excavation and advertising was
inapplicable because it was substantive rather than procedural in nature and
thus adversely and improperly affected Herr's substantive rights. The Township
appealed the Court of Common Pleas decision to the Commonwealth Court,
which affirmed on January 10, 2001.
II.

24

We agree with the District Court that Herr had a property interest in Millwood
which was entitled to protection under "the substantive due process element of
the Fourteenth Amendment." Herr v. Pequea Township, No. 99-cv-199, at 17
(E.D. Pa. filed July 31, 2000). See Blanche Road, 57 F.3d at 268 n.15;
DeBlasio, 53 F.3d at 601. We thus turn to the issue of whether Herr was
deprived of that property interest in violation of substantive due process.
III.

25

With possible exceptions hereafter addressed in section IV, the injuries for
which Herr seeks redress arise from the delay occasioned by the proceedings
before the LCPC, the DER, the EHB, the ZHB and the courts of Pennsylvania.
When recovery is sought against a participant in adjudicatory proceedings
before state agencies and state courts based on its participation in those
proceedings, fundamental interests are implicated that were not implicated in
the situations before us in Bello and its progeny. Both the Constitution and the
common law provide protection for those who petition the government.

26

"[T]he [First Amendment] right to petition extends to all departments of

government" including administrative agencies and the courts. California Motor

Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). It is made
applicable to the states by the Fourteenth Amendment. Hague v. Committee for
Indus. Org., 307 U.S. 496 (1939). The protection it affords thus applies both to
petitioning state agencies and to petitioning state courts. Moreover, this
protection extends not only to petitioning for affirmative relief but also to
petitioning in opposition to applications for relief by others. Armstrong Surgical
Center, Inc. v. Armstrong County Mem. Hosp., 185 F.3d 154 (3d Cir. 1999)
(holding that the First Amendment right to petition provides protection for
opposition to a competitor's application to the State Department of Health for a
Certificate of Necessity for a medical facility).
27

While the right to petition conferred by the First and Fourteenth Amendments
does not provide an absolute immunity from liability for actions based on
petitioning activity, see California Motor Transport, 404 U.S. at 513-14, the
Supreme Court has held that such liability cannot be imposed in the absence of
a finding that the position taken lacked any reasonable basis. In Professional
Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49
(1993), Columbia Pictures sued Professional Real Estate Investors ("PRE") for
copyright infringement. PRE filed a counterclaim under the Sherman Act and
various state laws charging that the copyright infringement suit was a part of a
conspiracy to monopolize and restrain trade. When Columbia Pictures moved
for summary judgment based on its constitutionally protected right to petition,
PRE argued that the copyright suit had been instituted in bad faith, i.e., it was
brought to restrain trade and without an "honest... beli[ef] that the infringement
claim was meritorious." Id. at 54. The Supreme Court acknowledged that
petitioning immunity did not extend to liability based on the institution or
maintenance of "sham" litigation but held that litigation could be regarded as a
"sham" only if it is "objectively baseless."

28

We now outline a two-part definition of "sham" litigation. First, the lawsuit

must be objectively baseless in the sense that no reasonable litigant could
realistically expect success on the merits. If an objective litigant could
conclude that the suit is reasonably calculated to elicit a favorable outcome, the
suit is immunized..., and an antitrust claim premised on the sham exception
must fail. Only if challenged litigation is objectively meritless may a court
examine the litigant's subjective motivation. Under this second part of our
definition of sham, the court should focus on whether the baseless lawsuit
conceals "an attempt to interfere directly with the business relationships of a
competitor," through the "use [of] the governmental process-- as opposed to the
outcome of that process -- as an anticompetitive weapon," Omni, 499 U.S., at
380 (emphasis in original).

29

Professional Real Estate Investors, 508 U.S. at 60-61 (citations omitted).

30

The petitioning immunity that the Court upheld in PRE was immunity from
antitrust liability. The Court pointed out, however, that the principles being
relied upon were not limited to antitrust liability and noted that the same
principles had been applied by it to liability under the National Labor Relations
Act. See Bell Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983)
(holding that for a civil suit to be enjoined, there must be both an improper
motive on the part of the plaintiff and a lack of a reasonable basis for the suit).
Moreover, the Supreme Court in PRE stressed that its holding was consistent
with the protection traditionally afforded petitioning activity under the common
law:

31

[T]he Court of Appeals correctly held that sham litigation must constitute the
pursuit of claims so baseless that no reasonable litigant could realistically
expect to secure favorable relief.

32

The existence of probable cause to institute legal proceedings precludes a

finding that an antitrust defendant has engaged in sham litigation. The notion of
probable cause, as understood and applied in the common-law tort of wrongful
civil proceedings, requires the plaintiff to prove that the defendant lacked
probable cause to institute an unsuccessful civil lawsuit and that the defendant
pressed the action for an improper, malicious purpose. Probable cause to
institute civil proceedings requires no more than a "reasonabl[e] belie[f] that
there is a chance that [a] claim may be held valid upon adjudication." Because
the absence of probable cause is an essential element of the tort, the existence
of probable cause is an absolute defense. Just as evidence of anticompetitive
intent cannot affect the objective prong of [the] sham exception, a showing of
malice alone will neither entitle the wrongful civil proceedings plaintiff to
prevail nor permit the factfinder to infer the absence of probable cause.

33

Professional Real Estate Investors, 408 U.S. at 62-63 (footnote and citations
omitted).

34

The law applied in PRE is generally referred to in the case law as the NoerrPennington doctrine.6 Since PRE, the courts of appeals have frequently held
that the restrictions on liability there recognized are applicable to liability under
state tort laws, e.g., State of Missouri v. National Organization of Women, 620
F.2d 1301, 1318-19 (8th Cir. 1980), and to liability under the Civil Rights Act,
e.g., Video Intern Productions, Inc. v. Warner-Amex Cable Communications,
Inc., 858 F.2d 1075, 1084 (5th Cir. 1988) ("... we hold that any behavior by a

private party that is protected from anti-trust liability by the Noerr-Pennington

doctrine is also outside to scope of S 1983 liability"); Gorman Towers, Inc. v.
Bogoslavsky, 626 F.2d 607, 614-15 (8th Cir. 1980) (same); Stern v. United
States Gypsum, Inc., 547 F.2d 1329, 1342-46 (7th Cir. 1977).
35

We reached a similar conclusion in Brownsville Golden Age Nursing Home,

Inc. v. Wells, 839 F.2d 155, 159-60 (3d Cir. 1988). There, two private
individuals and a public official were charged with having conspired to mount a
campaign to get the Commonwealth of Pennsylvania to revoke the license of
the plaintiff nursing home. This conspiracy was alleged to have violated state
tort law. In support of its case, the plaintiff submitted a "smoking gun" letter
written by a member of the official's staff arguably reflecting an agreement to
work together to secure termination of the license. We made the following
observations that are instructive here:

36

In a somewhat analogous situation, it has been held that persons who were
successful in persuading the Forest Service to reduce or abandon its timber
sales program to protect the wilderness quality of an area could not be liable
under state tort law for interference with an advantageous relationship. Sierra
Club v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972). Judge Zirpoli based the
decision on the First Amendment right to seek to influence government action.

37

Two lines of cases support the Sierra Club decision and that which we uphold
here: the defamation cases, e.g., New York Times v. Sullivan, 376 U.S. 254, 84
S. Ct. 710, 11 L.Ed. 2d 686 (1964), emphasizing the constitutional importance
of communication on matters of public interest; and the Noerr-Pennington cases
teaching that the collusive use by competitors of legislative, administrative or
judicial process does not, without more, give rise to an anti-trust violation, see,
e.g., Eastern R.R. Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S. Ct.
523, L.Ed. 2d 464 (1961); California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508, 93 S. Ct. 609, 30 L.Ed 2d 642 (1972).

38

The rule that liability cannot be imposed for damage caused by inducing
legislative, administrative, or judicial action is applicable here. The conduct on
which this suit is based is protected by the firmly rooted principle, endemic to a
democratic government, that enactment of and adherence to law is the
responsibility of all.

39

Brownsville, 839 F.2d at 159-60 (footnote omitted).

40

Also helpful is our decision in McArdle v. Tronetti, 961 F.2d 1083 (3d Cir.

1992). There, a state employee, a prison counselor, allegedly prosecuted in bad

faith a civil proceeding to have the plaintiff involuntarily committed to a mental
health treatment facility. The plaintiff instituted his suit under the Civil Rights
Act, 42 U.S.C. S 1983, claiming a violation of his right to substantive due
process. We held that this claim was analogous to "a common law tort of
malicious use of civil process by a state actor" and that "claims of malicious
prosecution brought under Section 1983 `must include the elements of the
common law tort as it has developed.' " Id. at 1088 (quoting Rose v. Bartle, 871
F.2d 331, 349 (3d Cir. 1989)). We cited to section 674 of the Restatement
(Second) of Torts as evidencing those elements. That section provides:
41

One who takes an active part in the initiation, continuation or procurement of

civil proceedings against another is subject to liability to the other for wrongful
civil proceedings if

42

(a) he acts without probable cause, and primarily for a purpose other than that
of securing the proper adjudication of the claim in which the proceedings are
based, and

43

(b) except when they are ex parte, the proceedings have terminated in favor of
the person against whom they are brought.

44

"In determining probable cause for initiation of civil proceedings, all that is
necessary is that the claimant reasonably believe that there is a sound chance
that his claim may be held legally valid upon adjudication." Restatement
(Second) of Torts, S 675, cmt. (e) (1976).7

45

Herr's S 1983 claim against the defendants in this case is analogous to the
common law tort of malicious use of civil process by a state actor. Accordingly,
liability cannot be imposed under the teaching of McArdle unless all elements
of the common law tort are satisfied. This includes the requirement that the
defendants resisted Herr's efforts to secure approval "without probable cause
and primarily for a purpose other than securing the proper adjudication" of
Herr's claim. Nor, of course, can liability be imposed in a manner inconsistent
with the Constitution.

46

As Justice Souter points out in his concurring opinion in PRE, there may be a
conceptual difference between the Constitutional "probable cause" requirement
as articulated in PRE and the term "probable cause" as employed by the
Restatement and the common law. PRE, 508 U.S. at 66-67 (Souter, J.,
concurring). PRE's "probable cause" is wholly objective -- liability may be

imposed only if "no reasonable litigant could realistically expect to secure

favorable relief." PRE, 508 U.S. at 62. The common law's "probable cause"
may have a subjective component -- the defendant must "reasonably believe
that there is a sound chance that his claim may be held legally valid."
Restatement (Second) of Torts S 675, cmt. (e). In most situations, this will be a
distinction without a difference. If a person has undertaken to participate in
civil proceedings and the circumstances are such that he could have a
reasonable expectation that he may succeed, it will be the rare case indeed in
which he does not actually have that expectation. In any event, we need not
determine in this case whether there are cases in which the distinction would
make a difference. It does not here.
47

The record in this case will not support a conclusion that the defendants'
resistance to Herr's application was frivolous in the sense that no reasonable
litigant could realistically expect to prevail. Nor will it support an inference that
the defendants had no belief that they had a "sound chance" of prevailing. As
the District Court pointed out, they took no appeal from the LCPC's original
conditional approval in 1992 and thus did not contest that Herr was entitled for
five years to the benefits of the prior zoning ordinance. Moreover, their basic
position in the sewer litigation that Herr had no vested rights to municipal
sewer services under the 1971 sewage facilities plan was ultimately sustained
by the Commonwealth Court. Thus, what Herr characterizes as a bad faith "end
run" around the grandfathering provision of the zoning law was, in reality, a
winning argument. Even Herr's "smoking gun" letter, to the extent it can be
taken as reflecting the defendants' views, evidences that the Township expected
that it might well prevail before the DER and that the possibility of the five
year period expiring was regarded as only an additional, incidental benefit of
the defendants' resistance before the state agency and the courts.

48

While Herr characterizes the defendants' resistance in conclusory terms as

frivolous, he has not identified any specific issue and articulated why it was not
a litigable one. Our search of the record has not identified such an issue, and we
find no suggestion in the opinions of the decision- making agencies that any of
them regarded the Township's positions as frivolous. Both the 1998 opinion of
the Commonwealth Court in the sewer litigation and the 1999 opinion of the
Court of Common Pleas in the ensuing litigation analyze the issues presented
with care and some detail. If either court had viewed one or more of those
issues as frivolous, we are confident that some evidence of that view would
have found its way into the opinions.8
IV.

49

To the extent the rule of decision here is grounded in the common law, it makes
no difference whether we are analyzing the liability of the Township or the
liability of the supervisors in their individual capacities. The elements of Herr's
claim would be the same in either event, and if Herr has not come forward with
evidence that satisfies each essential element of the analogous state tort,
summary judgment is appropriate. To the extent the rule of decision here is an
immunity rooted in the First Amendment, the analysis of the Township's
liability involves an additional issue. It is clear that public officials sued in their
individual capacity are entitled to the immunity provided under the NoerrPennington doctrine. See Brownsville Golden Age Nursing Home, 839 F.2d at
159-60. We have found no case addressing the issue of whether a municipal
corporation is entitled to such immunity.9 We predict, however, that the
Supreme Court would hold that it is.

50

In situations of this kind, a township and its supervisors represent their

constituents and facilitate their participation in the governmental process.
Indeed, if municipal governments are discouraged from utilizing municipal
funds to finance participation in proceedings before other governmental
agencies, their citizens are likely to be left without a voice in important matters
pending before those agencies. Moreover, municipal governments are among
those most likely to be in possession of information relevant to the kinds of
decisions that had to be made here and are among those most likely to be aware
of the decision makers' need for information. A rule which would discourage
municipalities from expressing concerns and taking a position before other
governmental agencies would "deprive the government of a valuable source of
information." Noerr, 365 U.S. at 139. Granting petitioning immunity to
townships would thus serve the purposes of the right to petition clause. While
the Supreme Court has held that townships are not entitled to the across-theboard, common law, qualified immunity enjoyed by public officials who
exercise discretionary functions, Owen v. City of Independence, 445 U.S. 622,
649-50 (1980), the rationale of that decision is inapposite here. Petitioning
immunity is a limited immunity based on a specific provision of the
Constitution itself and extending it to townships would not only be consistent
with, but would further, the purposes of the right to petition clause.

51

We therefore hold that neither the Township nor its supervisors may be held
liable based on the delays occasioned by the proceedings before the LCPC and
other public bodies in the absence of a showing, not made upon this record, that
they lacked "probable cause" for the positions they took.
V.

52

In addition to the claims predicated on the delays occasioned by the

proceedings before the LCPC and other public bodies, Herr's brief makes the
following allegations:

53

As in Blanche Road, there is substantial evidence that defendants tried to delay

or stop Mr. Herr's development through "extra scrutiny" of Mr. Herr's plans -both improper reviews and never-ending searches for "problems" with or
additional conditions for the plans. Additional "problems" or conditions, the
Township supposed, might cause the LCPC to disapprove the project or Mr.
Herr to abandon it. For example, there is evidence that defendants caused the
Township zoning officer to give special attention to reviews of plans for
Millwood Industrial Park. Similarly, there is evidence that the Township
conducted numerous, time-consuming reviews to find "every possible
violation" in Mr. Herr's plans (Blanche Road, 57 F.3d at 260) and, thereafter,
reported all such reviews to the LCPC in the hope that the LCPC would
disapprove the plans.

54

Finally, there is evidence of the Township's and the Supervisors' efforts to

foster unfounded opposition to Millwood Industrial Park from public agencies
and private parties alike. The Township repeatedly sent out letters attempting to
"engender any concerns" or otherwise "get Mr. Herr on something else"
(Blanche Road, 57 F.3d at 258) as a means to "slow down and shut down" (Id.
at 260) the project.

55

Appellant's Br. at 31-32.

56

While these charges are cast in a somewhat different form and are obviously
intended to bring these aspects of Herr's case within the teachings of Blanche
Road, we conclude that they, too, are barred by the protection afforded for
petitioning activity. To the extent these claims are based on communications to
the LCPC and other responsible state agencies, a straightforward application of
the principles already discussed leads to the conclusion that there can be no S
1983 liability. Calling concerns about a proposed development to the attention
of the responsible state agencies lies at the core of privileged activity, and this
is true without regard to the number of concerns expressed so long as there is
some rational basis for those concerns. In making these charges, Herr has
identified no problem communicated to a state agency that has been shown to
have no rational basis.

57

In Blanche Road, we held that the defendants might have exposed themselves
to S 1983 liability "by ordering that Blanche Road's applications be reviewed

with greater scrutiny in order to slow down the development." 57 F.3d at 269.
We so held, however, in the context of a situation in which the defendants
comprised the permitting authority and their alleged conduct "improperly
interfered with the process by which the township issued permits... for reasons
unrelated to the merits of the application for permits." Blanche Road, 57 F.3d at
267-68.
58

Here, the charge is that the defendants instructed Township employees to apply
"extra scrutiny" in their review of Herr's proposal in order to identify problems
relevant to Herr's application before the LCPC and other state agencies. We
conclude that this essential precursor to the Township's actual communications
with the state agencies also comes within the law's protection for petitioning
activity and that this is true regardless of how thorough the employees were
instructed to be in identifying problems with the jurisdiction of the petitioned
agencies.
VI.

59

The judgment of the District Court will be affirmed.

NOTES:
1

The dissent correctly notes that the Township and its supervisors have asked us
to affirm the judgment of the District Court on the ground that the evidence
presents no material dispute of fact as to whether they had an improper motive.
If Bello and its progeny were the controlling authority here and motive were
the legally relevant issue, we would find ourselves hard pressed to uphold the
District Court's judgment. However, "when the judgment of a district court is
[legally] correct, it may be affirmed for reasons not given by the Court and not
advanced to it." Video International Production, Inc. v. Warner-Amex Cable
Communications, Inc., 858 F.2d 1075, 1085 (5th Cir. 1988) (quoting Laird v.
Shell Oil Co., 770 F.2d 508, 511 (5th Cir. 1985)); Elliott Coal Mining Co. v.
Director, 17 F.3d 616, 628 n. 16 (3d Cir. 1994).

Under Pennsylvania law, once a development proposal is submitted, the zoning

regulations in place are not subject to change (with respect to that proposal) for
five years after the preliminary proposal is approved. See 53 Pa. C.S.A. S
10508(4)(i).

Section 71.53 of the DER regulations, as then in effect, provided:

(f) A municipality may refuse to adopt a proposed revision to their official plan
for new land development for reasons, including, but not limited to:
(1) The plan is not technically or administratively able to be implemented.
(2) Present and future sewage disposal needs of the area, remaining acreage or
delineated lots are not adequately addressed.
(3) The plan is not consistent with municipal land use plans and ordinances,
subdivision ordinances or other ordinances or plans for controlling land use or
development.
(4) The plan is not consistent with the comprehensive sewage program of the
municipality as contained in the official plan.
(5) The plan does not meet the consistency requirements of S 71.21(a)(5)(i)(iii).
25 Pa. Code S 71.53(f) (1989).
4

Section 750.5(b), as then in effect, provided:

Any person who is a resident or property owner in a municipality may request
the department to order the municipality to revise its official plan where said
person can show that the official plan is inadequate to meet the resident's or
property owner's sewage disposal needs. Such request may only be made after a
prior demand upon and refusal by the municipality to so revise its official plan.
The request to the department shall contain a description of the area of the
municipality in question and an enumeration of all reasons advanced by said
person to show the official plan's inadequacy. Such person shall give notice to
the municipality of the request to the department.

This section provides:

Upon the Department's failure to act on a complete official plan or revision
within 120 days of its submission, the official plan or official plan revision will
be considered approved, unless the Department informs the municipality prior
to the end of 120 days that additional time is necessary to complete its review.
The additional time may not exceed 60 days.

From the seminal cases of Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v.
Pennington, 381 U.S. 657 (1965).

Contrary to the suggestion of the dissent, we do not read Albright v. Oliver, 510
U.S. 266 (1994), a case dealing with an alleged malicious prosecution that
implicated the Fourth Amendment, as overruling McArdle, a case dealing with
an alleged malicious use of civil process that did not implicate the Fourth
Amendment. Also, contrary to the suggestion of the dissent, we believe
McArdle stands for the proposition that the principles we endorsed in
Brownsville are applicable to an alleged constitutional tort based on substantive
due process.

We fail to perceive any similarity between this case and Grant v. City of
Pittsburgh, 98 F.3d 116 (3d Cir. 1996). There we were asked to decide
"whether, in applying Harlow's objective test for qualified immunity, a Court
may `consider' evidence of a defendant's state of mind when motivation is an
essential element of the civil rights claim." Id. at 123. Our answer was in the
affirmative. That answer is not helpful here, however. Because the positions
taken by the Township have not been shown to be "objectively baseless" or
asserted without "probable cause," the motive behind taking those positions is
not legally relevant to the propriety of the summary judgment entered against
Herr.

The dissent cites one case, Video International Production, Inc. v. WarnerAmex Cable Communications, Inc., 858 F.2d 1073 (5th Cir. 1988), as standing
for the proposition that petitioning immunity cannot apply to a public entity. In
that case, however, the plaintiff did not seek to impose liability on the
defendant city based on petitioning activity. The complaint was based on the
city's own zoning enforcement decisions and, as the Court noted, "it is
impossible for the government to petition itself." Id. at 1086. Video
International did not involve a situation, like the one before us, in which the
plaintiff seeks to impose liability on a municipality for petitioning a distinct
public entity authorized by state law to resolve land planning issues. Video
International would be of help here only if Herr were suing a public entity
which had denied it a permit for reasons unrelated to the merits of the permit
application.
GARTH, Circuit Judge, dissenting:

60

I must dissent from the majority's opinion, because I would hold that there
exists a genuine issue of material fact as to whether Pequea Township's actions
violated Herr's substantive due process rights and, therefore, I would remand
for trial. I part company from the majority, which holds that the 1st
Amendment right to petition permits the Township to use litigation and the
judicial process in order to prevent Herr from developing his property. For the

following reasons, in my opinion, the majority has erred:

61

1. Many of the actions taken by Pequea Township, which deliberately delayed

and obstructed Herr in the development of his property, were actions which
arose from other than Court proceedings and the judicial process, and thus may
not be considered within the rubric of the Township's right to petition under the
1st Amendment. In short -- Herr's evidence in support of this substantive due
process claim is not simply limited to the Township's litigious behavior.

62

2. Pequea itself has rejected any claim or theory dependent upon the right to
petition. In short -- Pequea has declined to rely on any such theory even after it
was encouraged to do so.

63

3. Even if a right to petition were relevant in this case (as the majority believes
it to be), it cannot defeat or overcome an individual's substantive due process
right where the Township of Pequea has engaged in arbitrary and capricious
developmental conduct. In short -- the improper motives of the Township
cannot be immunized by resorting to a right to petition theory and the majority
has cited to no authority which would support such aberrant jurisprudence.

64

a. In an effort to bolster its conclusion that Herr's action is barred by Pequea

Township's right to petition -- a theory to which not even Pequea itself has
subscribed -- the majority claims that the Noerr- Pennington doctrine supports
its thesis. 1 But Noerr- Pennington immunity applies to private, not
governmental, entities, and as I have pointed out and will amplify later in this
dissent, Herr's charges encompass more than just petitioning activity. In short -Noerr-Pennington immunity may not be looked to in an effort to resolve this
controversy.

65

4. Of even greater significance, the majority has ignored, and has not even
referred to, a Third Circuit opinion relevant here. Grant v. Pittsburgh, 98 F.3d
116 (3d Cir. 1996) holds, albeit in a qualified immunity context, that claims of
substantive due process violations of the kind alleged by Herr require careful
examination by the courts of the motive and intent of the relevant government
entity involved. In short -- the majority's opinion would ignore Grant's
teachings, and would preclude Herr's evidence of improper motive and intent on
the basis of a right to petition. That preclusion is not recognized in our
jurisprudence.
I.

66

It should be recalled that Herr is a landowner with property in Pequea

Township. He submitted a plan for an industrial park to the Lancaster County
Planning Commission ("LCPC"), which granted preliminary and final approval
to his plan. According to the relevant Pequea Township ordinances, Herr's
industrial park was to be provided with public sewer service. It was only after
Herr received approval from the LCPC that the Township modified its
ordinances and engaged in multiple court and other actions which the record
reveals were designed to prevent the development of Herr's property in
accordance with the industrial nature of the zoning approval. It did so because
the Township desired the property to be used for agricultural purposes rather
than the zoned industrial purposes.

67

Herr, whose legal position to develop an industrial property was eventually

upheld by the courts of Pennsylvania,2 faced roadblocks at every step of his
attempts at industrial development for over eleven years. It was not just a case
of litigating his rights (which he was forced to do), but it was a case where the
Township, which had a very deliberate and intentional motive to prevent Herr
from developing his property, obstructed Herr at every turn of the road.

68

Both parties tried this case to summary judgment on the issue that Herr's
substantive due process rights had been violated. Counsel for both parties
rejected the majority's suggestion that McArdle v. Tronetti, 961 F.2d 1083 (3d
cir. 1992), had anything to do with Herr's predicament. McArdle is a classic
malicious abuse of prosecution case, whose viability is in substantial doubt after
the Supreme Court decision in Albright v. Oliver, 510 U.S. 266 (1994).
Moreover, neither counsel relied on any aspect of Pequea Township's 1st
Amendment right to petition or the Noerr- Pennington doctrine. Rather, both
parties in this case approached the issue on appeal in a straight-forward manner
-- the one asserting and the other denying a substantive due process violation.

69

The plaintiff, Herr, contended that Pequea Township was motivated by a desire
to retain his property as agricultural property. Herr, who had purchased the
property and was "grandfathered" into the zoning of the property as industrial
(so long as he developed the property within five years), claimed that Pequea
Township's acts were taken in bad faith and with an improper motive, thus
preventing him from developing his property. Pequea, on the other hand,
argued that motive was not an issue, and that if it had been, their motives were
proper.

70

I suggest that this is the issue that must be resolved, not the issues
manufactured by the majority on which they have decided to resolve this

controversy.
II.
71

We have held that "non-legislative state action," which is the type of state
action at issue here, "may... give rise to a substantive due process claim upon
allegations that the government deliberately and arbitrarily abused its power."
Nicholas v. Pennsylvania State University, 227 F.3d 133, 139 (3d Cir. 2000)
(internal quotation marks omitted). A substantive due process claim arising out
of non-legislative state action has two elements: 1) "we must look, as a
threshold matter, to whether the property interest being deprived is
`fundamental' under the Constitution," Nicholas, 227 F.3d at 142; and 2) the
plaintiff "also must demonstrate that [he] was the victim of `a governmental
action [that] was arbitrary, irrational, or tainted by improper motive.' "
Woodwind Estates, Ltd. v. Gretowski, 205 F.3d 118, 124 (3d Cir. 2000). Grant
v. City of Pittsburgh, 93 F.3d 116, 124-25 (3d Cir. 1996) adds that a court is to
consider evidence of a defendant's state of mind [here, Pequea's] when
motivation is an essential element [as it is here] of the plaintiff's [Herr's] civil
rights claim.
A.

72

There can be no doubt that the property interest at issue here is "fundamental."
"Indeed," as we held in DeBlasio v. Zoning Board of Adjustment for the
Township of West Amwell, "one would be hard-pressed to find a property
interest more worthy of substantive due process protection than ownership." 53
F.3d 592, 601 (3d Cir. 1995). Accordingly, I believe, and the majority agrees as
well, see maj. op at 115, that the District Court properly held that Herr's interest
in developing his property was an interest worthy of due process protection.
B.

73

Because Herr has alleged a violation of a fundamental property interest, it must

be determined whether Herr has suffered from "a governmental action [that]
was arbitrary, irrational, or tainted by improper motive." Bello v. Walker, 840
F.2d 1124, 1129 (3d Cir.1988). We have made clear that, "[i]n disputed factual
situations, the determination of the existence of improper motive or bad faith is
properly made by the jury as the finder of fact." Woodwind Estates, Ltd. v.
Gretowski, 205 F.3d 118, 124 (3d Cir. 2000). We also observed in Woodwind
that "we have not hesitated to vacate a grant of summary judgment or a
judgment as a matter of law where the evidence at least plausibly showed that

the government took actions against the developer for indefensible reasons
unrelated to the merits of the zoning dispute." 205 F.3d at 124. In this context,
"the intentional blocking or delaying of the issuance of permits for reasons
unrelated to the merits of the permit application violates principles of
substantive due process and is actionable under S [1]983." Woodwind, 205
F.3d at 124-25.
74

Looking at the facts in the light most favorable to Herr, because it was Pequea
Township, the defendant, which had moved for summary judgment, I believe
that a rational jury could and would certainly find that the Township
intentionally blocked or delayed Herr's development of his property "for
reasons unrelated to the merits" of his development plan. Indeed, the evidence
suggests that the Township used every effort -- including access to the courts -to hinder development of Herr's land.

75

There is extensive evidence from which a jury could find that the Township
acted arbitrarily, irrationally, or with improper motive. Alan S. Peterson
("Peterson"), Chairman of the Pequea Township Environmental Advisory
Council, sent numerous letters in 1990 to such places as the Nature
Conservancy, the Pennsylvania Historical and Museum Commission, the
Pennsylvania Game Commission, and the Pennsylvania Fish Commission,
asking them to review Herr's proposal "for possible endangered species or other
environmental rarities," "for possible historical or archaeological significance,"
and "for... species of special concern." (App. 612a-615a.) Peterson also sent
another round of letters in early 1992 to the Lancaster Water Authority, the
Pennsylvania Power & Light Company, the Suburban Lancaster Sewer
Authority, and Department of Transportation, among others, informing them
about concerns related to Herr's proposal. (App. 616a-622a.) Additionally,
Virginia K. Brady ("Brady"), a member of the Township Board of Supervisors
and a defendant in this action, sent similar letters in October 1993 to the
Department of Transportation, the Bureau of Dams and Waterways, the
Department of the Army, and the Lancaster City Engineer in October 1993.
(App. 638a-641a.)

76

Peterson sent a letter to Eugene Dice, an attorney, stating:

77

Only Virginia Brady and I in the township know the following: (Do not state
this back to the township in any manner). The owner must sell the lots, then all
the land development plans must be approved by 10/94 or they become
nonconforming lots in the Ag. District. Obviously the longer we can stall (if we
can't win this with DER), the better.... We want this defeated after our four year
struggle!

78

(App. 374a-375a (emphasis added).)

79

Brady stated at her deposition: "Development is not bad. However, to put -- and
this is a personal opinion-- to put development on prime agricultural soils is not
right, and that is a personal belief I have had for many, many, many years."
(App. 216a.). Additionally, Brady was quoted in a 1997 newspaper article,
regarding the "battle" between Herr and Pequea Township over his
development plan, as stating: "We already have an industrial park," and "I am
opposed to paving over any prime agricultural land." (App. 585a-586a.) Bruce
Groff, another member of the Board of Supervisors and a defendant in this
action, was quoted as saying that "support [for rural preservation] is desperately
needed to deter recent and future horrendous proposals being prepared by
developers." (App. 379a.)

80

Herr received a letter in April 1999 from Robert G. Sneath, whose company
had been a potential buyer of space at Herr's proposed industrial park, in which
Mr. Sneath requested that Herr release him from the agreement of sale,
explaining:

81

My Associate, Glenn Warfel, talked to the zoning officer about our plans. His
name is Wes Brocknoe... Glenn was informed that your plans were under
litigation and the land was still zoned agricultural by Pequea Township. The
zoning officer was not at liberty to talk about it. With timing important to us,
this was not encouraging.

82

(App. 210a.) Mr. Sneath also stated, "Quite frankly, everything I have heard
about dealing with Pequea Township is negative. I have no desire to invest my
money in a township with a negative attitude. It looks like this development
could take forever to be approved by the township." (App. 210a.)

83

In light of this evidence, it is clear to me that the issue of whether the Township
had an improper motive must be sent to the jury. Indeed, it is inconceivable to
me how the District Court could have held otherwise. The District Court
analyzed the evidence without regard to the fact that the issue of improper
motive was before the court on a summary judgment motion, in which the court
was required to draw all reasonable inferences in Herr's favor. Instead, the
District Court several times drew inferences in Pequea Township's favor in
direct contravention of the summary judgment standard.

84

For instance, the District Court drew the following conclusions from the
evidence: 1) "the reasonable inference to be drawn is that Defendants wished to

zone [another land parcel which was permitted to remain industrial]

consistently with its current use, rather than carry out the pointless exercise of
changing the zoning to agricultural but grandfathering the pre-existing
industrial use"; 2) "there is no evidence before us that Defendants knew they
could not stop development of Millwood Park, yet acted merely to delay and
harass Plaintiff "; 3) "the mere fact that Dr. Peterson claims that Virginia Brady
was aware of the time limit imposed by [the grandfather clause under which
Herr's land was zoned industrial] does not imply an improper motive on her
part"; 4) there was "no basis for an inference that Defendants pursued the sewer
litigation for any purpose other than a genuine desire not to have Millwood
Park come about in the form proposed by Plaintiff "; and 5) "[t]here is no basis
to determine what the true motives [of the Township] were." (App. 21a-25a.)
85

Additionally, I should note that a motive on the part of the Township to prevent
industrialization of land, i.e., "not to have Millwood Park come about in the
form proposed by Plaintiff," (App. 25a), is not related to the merits of the
zoning dispute between Herr and the Township. Herr had already submitted his
plan to a separate governmental entity (the LCPC), which approved Herr's plan
before the Township could pass legislation which would prevent the proposed
development. The fact that the Township properly enacted new zoning and
sewage ordinances with the goal of reducing development does not mean that
its actions to attempt to defeat a development plan that had legitimately escaped
its regulation were proper. Indeed, in my view, the Township's motive in
enacting new ordinances and plans relating to land use is irrelevant, and the
District Court erred in considering it.
III.

86

The majority holds that the Township's litigation-related actions are protected
by the 1st Amendment right to petition and that, therefore, they cannot form the
basis of Herr's substantive due process claim. Holding that Herr could not prove
any injury without these actions, the majority affirms the District Court's
summary judgment dismissal of Herr's substantive due process claim. I cannot
agree with this holding because the right to petition does not bar substantive
due process liability for litigation arbitrarily and irrationally initiated by a
governmental entity.

87

A. Pequea's Actions Other and Apart from Litigation

88

As an initial matter, Herr's evidence in support of his substantive due process

claim is not simply limited to the Township's litigious behavior. Herr presents

evidence of a litany of conduct by the Township above and beyond its litigation
activity over a span of eleven years-- all of which was purportedly designed to
delay and block the industrial development of Herr's land.
89

This evidence includes: (1) proof of the Township's campaign since 1990 to
find problems with, or raise unfounded concerns about, Millwood Industrial
Park with the hope that the problems raised would lead to delays leading past
the five-year grandfather period; (2) proof of the Township's "extra scruntiny"
of Herr's applications in an effort to delay the development past the five-year
period; (3) proof of the Township's denial of Herr's applications for public
sewer service motivated by reasons unrelated to water-quality issue but rather
by Pequea's desire to hold up Herr's development; and (4) proof that the
Township's issuance of an enforcement notice was part of a campaign to delay
development. This conduct has nothing to do with litigation or petitioning
activity before the LCPC or state courts, and therefore -- even assuming the
majority's right to petition is correct -- it would not be immunized by the 1st
Amendment.

90

B. Counsel's Rejection of Pequea's Petitioning Right

91

Next, Pequea Township itself has rejected any claim or theory dependent upon
the right to petition, declining to rely on any such theory even after it was
encouraged to do so. Not only was this theory never raised, entertained or
discussed by the very party to whose benefit it would redound, but when asked
for supplemental memoranda pertaining to that issue, both Herr and Pequea
declined to embrace or rely on such a theory. They did so because both parties
recognized that this case was a garden variety substantive due process
proceeding.

92

Likewise, the majority's reliance upon McArdle v. Tronetti, 961 F.2d 1083 (3d
Cir. 1992) -- which it urged upon the parties -- is inapposite. There, we
analyzed the plaintiff's S 1983 claim as a malicious use of civil process claim in
violation of his 14th Amendment rights. Referring to Lee v. Mihalich, 847 F.2d
66 (3d Cir. 1988), and its progeny, we reasoned that "a claim of malicious use
of process may state a S 1983 claim if it includes the elements of that common
law tort as it has developed." McArdle, 961 F.2d at 1088. Accordingly, we
required that such a claim requires proof that (1) the defendant "acted in a
grossly negligent manner or without probable clause and primarily for a
purpose other than that of securing the proper... adjudication of the claim in
which the proceedings are based; and (2) the proceedings have terminated in
favor of the person against whom they are brought." Id.

93

Setting aside the issue of McArdle's questionable viability after the Supreme
Court decision in Albright v. Oliver, 510 U.S. 266 (1994),3 the majority, by
claiming that "Herr's S 1983 claim against the defendants in this case is
analogous to the common law tort of malicious use of civil process by a state
actor," see maj. op. at 118, again directly contradicts the repeated and equivocal
positions of both Herr's and the Township's counsel that Herr's claims were not
malicious use of process claims. Indeed, in a Supplemental Letter Brief dated
June 1, 2000 (ordered by this Court), the Township specifically conceded that:

94

the McArdle principles do not apply to the instant appeal.... Because the issues
regarding abuse of process have not been raised by [Herr] in the instant appeal
and because [Herr] has not produced evidence to allow a finding of abuse of
process, [the Township] argues that McArdle has no relevance to the instant
appeal.... [T]he principles of McArdle have no determinative effect on this
Honorable Court's ability to decide that there is insufficient evidence of record
to support a reasonable jury finding of a substantive due process violation.

95

Similarly, Herr agrees that his claims are not malicious use of process claims.
While I acknowledge that we should recognize the correct jurisprudence even if
counsel declines to do so, we should not, as the majority has done here, devise
our own theory of liability (or immunity) after counsel has deliberately rejected
that theory, particularly since it is flawed and lacks support in our
jurisprudence. Indeed, I think it is inappropriate and improvident to substitute a
panel's theory for counsel's, particularly when it is obvious from our own
jurisprudence that the issue of improper motive in a substantive due process
case is one for the jury and not for the judge. See Woodwind, 205 F.3d at 124;
Grant, 93 F.3d at 124-25.

96

Nevertheless, even if McArdle were applicable, Herr's claims (as discussed

previously) encompass more than just abuse of process. Rather, his claims are
based upon specific evidence showing that the Township blocked and delayed
the industrial development of his land at every possible turn. The use of the
court system is just one, albeit important, evidentiary example of the
Township's tactics. Accordingly, the holding in McArdle -- even if applicable -is too circumspect to be of value as to Herr's claims of substantive due process.

97

C. A Right to Petition Cannot Trump Illegal Municipal Actions and Cannot

Defeat a Legitimate Substantive Due Process Claim

98

Even if a right to petition were relevant in this case, it cannot defeat or

overcome an individual's substantive due process right where evidence has been

presented that the Township of Pequea has engaged in arbitrary and capricious
behavior. The improper motives of the Township cannot be immunized by
resorting to a right to petition and the majority has cited to no authority which
would support such aberrant jurisdiction.
99

Though it is true that the First Amendment encompasses a right to petition, this
right is "not absolute." San Filippo v. Bongiovanni, 30 F.3d 424, 435 (3d Cir.
1994). Additionally, the doctrine of substantive due process does not require
that the actions taken by the government be illegal to constitute a due process
violation. Instead, substantive due process "protects individual liberty against
`certain government actions regardless of the fairness of the procedures used to
implement them.' " Collins v. Harker Heights, 503 U.S. at 125 (quoting Daniels
v. Williams, 474 U.S. 327, 331 (1986)) (emphasis added). Indeed, courts have
repeatedly explained that substantive due process protects against "the arbitrary
exercise of the powers of government." Bello v. Walker, 840 F.3d 1124, 1128
(3d Cir. 1988) (internal quotation marks omitted). Implicit in this statement is
that the actions that form the basis of substantive due process claims are actions
that are within the government's power but nevertheless may be constitutional
violations in a particular case because of the government's motive in exercising
that power.

100 Accordingly, because of this clear indication in substantive due process

jurisprudence that it is not the government's legal authority to exercise its power
but its motive that is relevant in analyzing a substantive due process claim, I
cannot agree with the majority's holding that the Township did not violate
Herr's substantive due process rights simply because its actions were protected
by the right to petition.
101 By immunizing motive and intent whenever there is petitioning activity on the
part of the government, the majority effectively renders the 14th Amendment
powerless, turning it into mere surplusage any time improper litigious activity
by a municipality is asserted. This "would essentially insulate government
officials from liability for the very harm our substantive due process precedents
have sought to redress: using government authority to take actions that, because
of the improper motives of public officials, have no rational relationship to a
legitimate government purpose." Grant, 98 F.3d at 125 (emphasis added).
102 In this way, the right to petition -- which, by the majority's reasoning, virtually
always defeats any evidence of a substantive due process violation -- would
insulate the Township from the very arbitrary and capricious governmental
conduct that is meant to be protected by the 14th Amendment. By this
reasoning, the right to petition would also immunize a municipality of liability

under the Equal Protection Clause -- also a 14th Amendment claim -notwithstanding evidence that a particular municipality had pursued delay
litigation tactics because of an individual's race or religious beliefs, just so long
as it could articulate some non-frivolous justification to support its lawsuit.
Such a result is clearly contrary to our constitutional jurisprudence.
103 D. Noerr-Pennington is Not Applicable and Not Relevant to Government
Misconduct
104 In an effort to bolster its conclusion that Herr's due process claim is barred by
the Township's right to petition, the majority claims that the Noerr-Pennington
doctrine supports its thesis. In our most recent exposition of the doctrine, we
have described Noerr-Pennington immunity as follows:
105 Under the Noerr-Pennington doctrine, private parties may be immunized
against liability stemming from antitrust injuries flowing from valid petitioning.
This includes two distinct types of actions. A petitioner may be immune from
the antitrust injuries which result from the petitioning itself. Also... parties are
immune from liability arising from the antitrust injuries caused by government
action which results from petitioning.
106 A.D. Bedell Wholesale Company, Inc. v. Philip Morris Inc., 263 F.3d 239, 251
(3d Cir. 2001) (citations omitted). "Rooted in the First Amendment and fears
about the threat of liability chilling political speech," the Noerr-Pennington
doctrine generally insulates a private entity which petitions the government for
redress from antitrust liability "even if there is an improper purpose or motive"
behind the petitioning activity. Id. at 250 (emphasis added). We have also
noted that "the immunity reaches not only to petitioning the legislative and
executive branches of government, but `the right to petition extends to all
departments of the Government,' including the judiciary." Id. (quoting
California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972)).
107 The Noerr-Pennington doctrine, and the rationale behind it, however, is not
applicable here. First, in this case, it seeks to immunize too much. Because
Herr's charges include more than appropriate petitioning activity on Pequea's
part (see Section III.A., supra), the application of Noerr-Pennington here
cannot insulate or immunize Pequea from Herr's claims.
108 Second, and more importantly, however, Noerr-Pennington immunity applies to
private parties -- not governmental entities -- seeking redress from the

government. See Video International Production, Inc. v. Warner-Amex Cable

Communications, Inc., 858 F.2d 1075, 1082-84, 86 (applying Noerr-Pennington
protection to private cable operator against antitrust, tort and S 1983 coconspirator liability, but noting as to municipal liability that "Noerr-Pennington
protection does not apply to the government"); see also Professional Real Estate
Investors, Inc. v. Columbia Pictures Ind., Inc., 508 U.S. 49 (1993) (protecting
private movie companies against antitrust liability); Bill Johnson's Restaurants,
Inc. v. NLRB, 461 U.S. 731 (1983) (extending 1st Amendment protection to
private employer who filed lawsuit against former employee allegedly in
violation of the National Labor Relations Act); California Motor Transport Co.
v. Trucking Unlimited, 404 U.S. 508 (1972) (refusing to apply 1st Amendment
protections to private trucking company because it fell within "sham"
exception); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980)
(immunizing private defendants against S 1983 liability on the basis of NoerrPennington protection, but holding public officials immune on grounds other
than Noerr-Pennington immunity); State of Missouri v. National Organization
for Women, 620 F.2d 1301 (8th Cir. 1980) (protecting private women's
organization against antitrust liability); Stern v. United States Gypsum, Inc.,
547 F.2d 1329 (7th Cir. 1977) (protecting corporation and its officers against S
1985 liability). To the extent that the majority has cited one case that could
arguably be seen as extending this immunity to a governmental entity, the
protection immunized the party only against statutory liability, not against a
constitutional deprivation. See Armstrong Surgical Center, Inc. v. Armstrong
County Memorial Hospital, 185 F.3d 154 (3d Cir. 1999).4
109 Accordingly, the application of the Noerr-Pennington doctrine cannot resolve,
and cannot be analogous to, the following conflict: whether a governmental
entity's [Pequea's] 1st Amendment right to petition always trumps an individual
citizen's [Herr's] 14th Amendment due process right to be free from arbitrary
and capricious government activity.5 The majority provides no authority
extending Noerr-Pennington to conduct by government entities which have
been shown to have acted in violation of constitutional restrictions. Nor do I
know of any authority purporting to extend Noerr-Pennington in such a way so
as to per se defeat an individual's constitutional rights under the 14th
Amendment.
110 One of the cases cited by the majority, Brownsville Golden Age Nursing
Home, Inc. v. Wells, 839 F.2d 155 (3d Cir. 1988), involved a nursing home
operator that filed state tort claims against two private individuals and a public
official. There, the nursing home alleged that the defendants improperly
scrutinized its operations through a publicity and letter-writing campaign which
ultimately led to its loss of license. This Court affirmed the district court's grant

of summary judgment against the nursing home because it failed to "raise a

material issue of fact" on its state law claims of tortious interference with
business relations and civil conspiracy. Id. at 159 (emphasis in original).
Specifically, we agreed with the district court that the plaintiff failed to show
that the defendants actions were "unlawful" or "improper" (as required by those
torts) since the Pennsylvania courts had conclusively determined that the
revocation of the home's license was warranted "because of its serious
violations of nursing home standards." Id.
Invoking, by analogy, the principles underlying defamation cases, e.g., New
111 York Times v. Sullivan, 376 U.S. 254 (1964), and Noerr-Pennington cases, we
held that the defendants' actions "in calling [plaintiff's] violations to the
attention of state and federal authorities and eliciting public interest cannot
serve as the basis of tort liability." Brownsville, 839 F.2d at 160. This ruling is
a far cry from the situation in this case wherein Herr has presented credible
evidence showing that the Township's motivations behind its delay tactics and
in litigating the "sewer" issue were prompted by a desire to thwart Herr from
his rightful claim to develop his property as well as a scheme to delay Herr
sufficiently such that his five-year grandfather period would expire. In addition,
unlike the allegations made in Brownsville, Herr's claims sound in direct
constitutional authority and not in state common law or statutory liability.
E. Grant v. Pittsburgh
112 Finally, by disregarding evidence of the Township's motive and intent, the
majority has ignored our holding in Grant v. Pittsburgh, 98 F.3d 116 (3d Cir.
1996). There, Grant (a land developer) brought suit against certain city officials
under S 1983 alleging, inter alia, violations of his substantive due process
rights. In particular, Grant claimed that the nomination by city officials of two
buildings for historic preservation under the Pittsburgh Historic Structures,
District, Sites and Objects Ordinance, Pittsburg, Pa. Code Title 1007, S 513,
effectively prevented the buildings from being demolished and thereby
thwarted Grant's plans to develop the property on which the buildings were
located. Grant alleged that the nomination was not motivated by public interest,
but rather by partisan and personal politics having no bearing on the historic
preservation of the buildings. The defendants claimed qualified immunity.
113 The district court, failing to consider each defendant's role individually in the
alleged conduct, nonetheless denied the officials' summary judgment motion
based upon qualified immunity. This Court remanded the qualified immunity
issue for reevaluation as to the specific conduct of each defendant, but
specifically noted that "courts are not barred from examining evidence of a

defendant's state of mind in considering whether a plaintiff has adduced

sufficient evidence to withstand summary judgment on the issue of qualified
immunity, where such state of mind is an essential element of the constitutional
violation itself." Id. at 124 (citations omitted). In particular, our Court
specifically recognized that,
114 [t]he substantive due process violation alleged in this case is precisely the sort
of claim where clearly established law makes the conduct legal or illegal
depending upon the intent with which it is performed. By their very nature,
substantive due process claims of this kind involve the application of otherwise
legitimate government machinery to achieve an illegitimate end.... [W]hen the
same officials invoke administrative processes with an illicit purpose, they are
violating substantive due process guarantees and, at the same time, `clearly
established' law.
115 Id. at 125 (citations omitted) (emphasis added). Although decided in the context
of qualified immunity, Grant expressly recognizes and acknowledges that
substantive due process claims often involve the use of legitimate governmental
processes by government officials for illegitimate ends, and that the proper
inquiry focuses not upon the propriety of the processes utilized, but rather upon
the motives of the officials involved.
116 Here, the very essence of Herr's substantive due process allegations depend
upon the motives behind the actions taken by the Township and the individual
defendants. As already discussed (see Section II.B., supra), Herr has presented
particularized and specific evidence which-- if credited -- could reasonably lead
a jury to conclude that the actions by Pequea Township in this case were
motivated by illicit purposes, and thereby violated Herr's substantive due
process rights under the 14th Amendment.
IV.
117 The District Court noted that "we believe Defendants are entitled to qualified
immunity." (App. 30a.) The Supreme Court stated in Harlow v. Fitzgerald:
"government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known." 457 U.S. 800, 818 (1982). I would hold that the
defendants here should have known that their actions may have violated Herr's
substantive due process rights and, therefore, they are not entitled to qualified
immunity. However, because I am satisfied that the issue of "improper motive"

must be returned for jury determination, even though I believe that the
Township has violated Herr's constitutional right and that the right was clearly
established at the time of the violation, I would hold that the qualified
immunity issue should be addressed not by us but in the District Court.
118 Such a holding would be consistent with our holdings in Blanche Road Corp. v.
Bensalem Township and Woodwind, both of which involved substantive due
process challenges to governmental interference with land development plans.
In Blanche Road, we stated:
119 In the instant case..., when the evidence is viewed in the light most favorable to
plaintiffs, it is clear that defendants could not have reasonably believed that
their conduct did not violate [plaintiffs'] 6 rights. If defendants, for reasons
unrelated to an appropriate governmental purpose, intentionally conspired to
impede the development of the Blanche Road project, by ordering that Blanche
Road's applications be reviewed with greater scrutiny in order to slow down the
development and by ordering that efforts be taken to shut down the
development, such an arbitrary abuse of governmental power would clearly
exceed the scope of qualified immunity. Accordingly, the defense of qualified
immunity is not available to defendants in the instant matter.
120 57 F.3d 253, 269 (3d Cir. 1995). Similarly, we held in Woodwind that: "In the
instant case..., when the evidence is viewed in the light most favorable to
plaintiff, it is clear that the supervisor defendants could not have reasonably
believed that their conduct did not violate plaintiff's rights." 205 F.3d at 125.
121 I believe that the defendants in this case have even less claim to qualified
immunity than the defendants in Blanche Road. If the right to be free from state
intervention with land development was clearly established when Blanche Road
was decided (in 1995), it is even more clearly established now in light of the
Third Circuit's decision and holding in Blanche Road.
V.
122 I would reverse the District Court's grant of summary judgment to Pequea
Township and remand the case for trial, because Herr has a fundamental
property interest; there is a genuine issue of material fact as to whether the
Township acted with an improper motive; and the Township's delay tactics,
including its initiation of litigation, is not protected from substantive due
process analysis by any claimed right to petition. Because the majority of the
panel holds otherwise, I respectfully dissent.

NOTES:
1

Named after two Supreme Court cases, Eastern Railroad Presidents Conference
v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v.
Pennington, 381 U.S. 657 (1965), Noerr-Pennington immunity protects private
parties from antitrust liability flowing from valid petitioning activity to the
government.

The majority provides that the Township's "basic position in the sewer
litigation that Herr had no vested rights to municipal sewer services under the
1971 sewage facilities plan was ultimately sustained by the Commonwealth
Court," and therefore was a "winning argument." Maj. op. at 119. This reading
by the majority, however, does not tell the whole story. In fact, the
Commonwealth Court -- while disagreeing with the Environmental Hearing
Board and ruling that the protection offered to a developer's approved plan
under S 508 of the Pennsylvania Municipalities Planning Code did not apply to
sewage facility plans-- nevertheless found the Board's error to be harmless and
ruled in favor of Herr. See Pequea Township v. Herr, 716 A.2d 678, 684-85
(Pa. Commw. Ct. 1998). Indeed, the Commonwealth Court agreed that "Herr
had established that [Pequea Township's] 1992 sewage plan was inadequate to
meet Herr's sewage disposal needs," and upheld Herr's right to municipal
sewage services from Pequea. Id. at 685.

The Supreme Court's holding in Albright -- which suggested that a malicious

prosecution claim must be anchored in explicit constitutional text, such as the
Fourth Amendment, rather than generalized notions of due process -- has cast
doubt on the viability of Lee v. Mihalich and its progeny, including McArdle.
See, e.g., Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) ("
[Albright] has created great uncertainty in the law" of malicious prosecution
under S 1983 and Bivens).

In Armstrong, Noerr-Pennington protection was afforded to a hospital and its

staff physicians from antitrust liability under the Sherman Act.
While the caption of that case suggests that the hospital may have been a
county hospital, the issue of whether it was a "municipality" or a "government
entity" was never addressed. Indeed, the opinion itself appears to have referred
to the defendant hospital as a "private party" a number of times, and explicitly
characterized the Noerr-Pennington immunity as an "immunity for private
parties." See, e.g., id. at 159-61, 62 (emphasis added).

It is axiomatic that government entities, unlike private citizens, are limited by

the Constitution from certain conduct in ways that individuals are not (see, e.g.,
the Due Process Clause and the Equal Protection Clause). Therefore, providing
a private citizen an absolute per se immunity arising from his or her 1st
Amendment right to petition is far different than providing such an absolute
constitutional right to a governmental entity such as Pequea Township.
6

The text of the opinion says "defendants' rights," but this is clearly a
typographical error.