Filed: Oct. 21, 2002
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 10-21-2002 Lipschultz v. Logan Assistance Precedential or Non-Precedential: Non-Precedential Docket No. 01-1564 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Lipschultz v. Logan Assistance" (2002). 2002 Decisions. Paper 664. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/664 This decision is brought to you for free and open access b
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 10-21-2002 Lipschultz v. Logan Assistance Precedential or Non-Precedential: Non-Precedential Docket No. 01-1564 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "Lipschultz v. Logan Assistance" (2002). 2002 Decisions. Paper 664. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/664 This decision is brought to you for free and open access by..
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Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-21-2002
Lipschultz v. Logan Assistance
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-1564
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"Lipschultz v. Logan Assistance" (2002). 2002 Decisions. Paper 664.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/664
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 01-1564 & 01-1565
______________
HARRY T. LIPSCHULTZ;
ESTATE OF SYLVIA LIPSCHULTZ;
SYLVIA HOLDINGS, INC.,
Appellants
v.
LOGAN ASSISTANCE CORPORATION;
REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA;
NOEL EISENSTAT; OFFICE OF HOUSING AND COMMUNITY DEVELOPMENT;
JOHN KROMER; DEPARTMENT OF LICENSES AND INSPECTIONS;
CITY OF PHILADELPHIA
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 99-cv-03626
(Honorable J. Curtis Joyner)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 4, 2002
Before: SCIRICA and ROSENN, Circuit Judges, and WARD, District Judge*
*The Honorable Robert J. Ward , United States District Judge for the Southern District
of New York, sitting by designation.
(Filed October 21, 2002)
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
Harry Lipschultz and the estate of his mother Sylvia Lipschultz, property owners in
the Logan section of Philadelphia, filed this § 1983 claim based on the City of
Philadelphia's decision to compensate only residential landowners for property damage in
the neighborhood. Because the Lipschultzes's causes of action were time barred, we will
affirm.
I.
The City first discovered that Logan buildings were sinking in 1984. In
September 1986, Philadelphia Mayor Wilson Goode issued a compensation letter to Logan
residents affected by the property damage. The policy authorized the City to provide
compensation for residents who wished to move out of Logan but excluded businesses and
mixed-use properties from compensation packages.
The Lipschultzes owned four properties in the Logan section of Philadelphia,
consisting of residential units and a family pharmacy. The City offered to compensate the
Lipschultzes for their residential units, but they decided to remain in Logan. A decade
later, in July 1997, the family sold the pharmacy's assets. In May 1999, the Lipschultzes
initiated these lawsuits against the City and its representatives. The District Court granted
summary judgment in favor of the City and the other defendants on some counts and
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dismissed the other counts without prejudice. We consolidated the separate cases on this
appeal.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
We have jurisdiction under 28 U.S.C. § 1291.
III.
A federal court should apply the state's statute of limitations for personal injury
claims brought under 42 U.S.C. § 1983. E.g., Sameric Corp. v. City of Philadelphia, 142
F.3d 582, 599 (3d Cir. 1998). In Pennsylvania, the relevant statutory period is two years.
See Pa. Cons.Stat. Ann. § 5524 (West Supp. 1997). This period begins to toll from the
time a grievant "knew or should have known of the injury upon which its action is based."
Sameric, 142 F.3d at 599.
Here, the Lipschultzes knew of their injuries as far back as 1986. Mayor Goode's
initial correspondence to Logan community members specifically offered compensation
only to owner-occupants of residential units. This letter put the Lipschultzes on notice of
their pharmacy's ineligibility for compensation.
The Lipschultzes admit they "were aware of the City's policy of not compensating
businesses." Brief for Appellants at 48. Nevertheless, they argue they did not incur an
actionable injury until they "gave up on Logan and sold their assets." Id. Based on Mayor
Goode's letter, the Lipschultzes knew or should have known residents would depart Logan
and injure their pharmacy's business. At the very least, they admitted in a March 15, 1996,
3
letter that their neighborhood had been "decimated" by the departure of many residents.
Nevertheless, they did not file claims until May 25, 1999.
As the Supreme Court has recognized, statutes of limitations are not "simply
technicalities," but rather, "fundamental to a well-ordered judicial system." Board of
Regents v. Tomanio, 446 U.S. 478, 487 (1980). Here, the statute of limitations bars the
Lipschultzes' claims.
IV.
In an effort to revive their time-barred claims, the Lipschultzes argue the City's
disbursement of federal and local funds to Logan residents constituted continuing
violations. The continuing violations doctrine1 is an "equitable exception to the timely
filing requirement." West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995).
To determine whether there was a continuing violation, we undertake a three-factor
analysis of the defendant's affirmative acts. Cowell v. Palmer Twp., 263 F.3d 286, 292-93
(3d Cir. 2001) ("The focus of the continuing violations doctrine is on affirmative acts of
the defendants."). Specifically, we look to the subject matter, frequency, and degree of
permanence of the defendant's conduct. Id. (holding that the degree of permanence is the
"most important of the factors"); see also Berry v. Board of Supervisors,
715 F.2d 971, 981
(5th Cir. 1983). To establish a continuing violation, the plaintiff has the burden of proving
1
This doctrine also is known as the "continuing wrong" doctrine. E.g., Sameric Corp. v.
City of Philadelphia,
142 F.3d 582, 599 (3d Cir. 1998).
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that the defendant's conduct is "more than the occurrence of isolated or sporadic acts."
Cowell, 263 F.3d at 292 (quoting
West, 45 F.3d at 755).
The Lipschultzes did not meet their burden here. "A continuing violation is
occasioned by continual unlawful acts, not continual ill effects from an original violation."
Id. at 293 (quoting Ocean Acres Ltd. v. Dare County Bd. of Health,
707 F.2d 103, 106 (4th
Cir. 1983)). In Cowell, a township imposed two municipal liens on plaintiffs' land.
Plaintiffs failed to bring their § 1983 claim until six years after the imposition of the
second lien, long after the statute of limitations had run. We held the Township's conduct
in issuing the liens and later refusing to remove them constituted a single, rather than
continual, act, meaning the continuing violations doctrine did not apply.
Here, the Lipschultzes' argument rests on the premise that each disbursement to
Logan residents represented a separate unlawful act. But these disbursements were merely
consequences of the City's policy rather than independent discriminatory conduct.2 As the
Supreme Court expressed, "the proper focus [for the continuing violation theory] is upon
the time of the discriminatory acts, not upon the time at which the consequences of the
acts become most painful." Delaware State College v. Ricks, 449 U.S. 250, 258 (1980)
(emphasis in original). Here, the allegedly discriminatory act occurred in September 1986
when the City issued its policy excluding businesses and mixed-use properties from
2
The decision cited by the Lipschultzes, Brenner v. Local 514, 927 F.2d 1283, 1296 (3d
Cir. 1991), does not support their proposition. Brenner involved repeated hostile acts by
the Local against certain union members. This pattern of continual conduct was not present
in Cowell nor this case.
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compensatory relief. All of the Lipschultzes' injuries stem from this single, permanent act,
meaning the continuing violations doctrine does not apply.
V.
For the foregoing reasons we will affirm the judgment of the District Court.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Circuit Judge
DATED: October 21, 2002
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