STAWAIRSKI v. BOROUGH, 262 Fed.Appx. 420 (3rd Cir. 2008)

Stephen STAWAIRSKI and Summerlee Stawairski, Appellants v. BOROUGH OF SUMMIT HILL, Appellee.

No. 06-4832.United States Court of Appeals, Third Circuit.Submitted Under Third Circuit L.A.R. 34.1(a) January 3, 2008.
Opinion Filed: January 30, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

On Appeal from the United States District Court for the Middle District of Pennsylvania, No: 06-CV-0668, District Judge: Honorable A. Richard Caputo.

Charles R. Pedri, Pedri Law Office, Hazleton, PA, for Appellants.

Andrew J. Bellwoar, Siana, Bellwoar McAndrew, Chester Springs, PA, for Appellee.

Before: FUENTES, JORDAN, Circuit Judges, and DUBOIS,[*]
District Judge.

[*] Honorable Jan E. DuBois. Senior District Judge for the United States District Court of the Eastern District of Pennsylvania, sitting by designation.

OPINION OF THE COURT
FUENTES, Circuit Judge.

The Stawairskis, appellants in this action, are owners of a parcel of land in Summit Hill, Pennsylvania. In March 2001, they leased the land to a corporation, SBA Properties, Inc. (“SBA”), permitting SBA to place a cell tower on the property. Thereafter, SBA filed a zoning application in order to place the cell tower on the Stawairskis’ land. The zoning application was denied on May 25, 2001 and the appeal was denied on August 1, 2001.[1] On February

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11, 2005, the Stawairskis filed a complaint, alleging that Summit Hill violated their substantive due process rights pursuant to 42 U.S.C. § 1983 by preventing them from using their property for the placement of a cell tower.

We affirm substantially for the reasons set forth in the District Court’s well-reasoned opinion. The District Court granted Summit Hill’s motion to dismiss the Stawairskis’ substantive due process claim, finding the claim to be time barred.[2] We exercise plenary review over a district court’s dismissal of claims pursuant to Rule 12(b)(6). Edgar v. Avaya, Inc., 503 F.3d 340, 344 (3d Cir. 2007). In Pennsylvania, the statute of limitations for a § 1983 claim alleging a violation of substantive due process is two years Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). A cause of action accrues under § 1983 when the plaintiff “knew or should have known of the injury upon which its action is based.” Id. The Stawairskis’ complaint was untimely because they were on notice of the fact that they could not put a cell tower on their property, the injury they complain of, from the time SBA’s zoning application was denied, on May 25, 2001, but did not file their complaint until February 11, 2005.[3]

[1] In addition, Summit Hill amended its zoning ordinance regulating cell towers on December 10, 2001, to limit the placement of cell towers to government-owned land. Summit Hill then rezoned a parcel of its own property for cell tower use and, on July 29 2002, leased that property to Atlas Tower Network, Inc. (“Atlas”) to install a cell tower on the land. On May 12, 2003, a zoning permit was issued for the land leased by Atlas.

[2] The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

[3] The District Court correctly found that the plaintiffs’ appeal of the original zoning decision tolled the statute of limitations until August 1, 2001. The tolling does not make the plaintiffs’ action timely.