Ash v. Redevelopment Authority , 143 F. App'x 439 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-1-2005
Ash v. Redevelopment Auth
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4356
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"Ash v. Redevelopment Auth" (2005). 2005 Decisions. Paper 760.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4356
________________
PETER M. ASH,
Appellant
v.
REDEVELOPMENT AUTHORITY OF PHILADELPHIA;
LINEBARGER, GOGGAN, BLAIR & SAMPSON, LLP
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 04-cv-4644)
District Judge: Honorable John P. Fullam
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2005
Before: ALITO, SMITH and COWEN, Circuit Judges
(Filed: August 1, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Pro se appellant Peter M. Ash appeals the District Court’s dismissal of his
complaint in which he sought to challenge state court legal proceedings involving two
real estate parcels located in Philadelphia, Pennsylvania: 1441 Ellsworth Street and 4555
Lancaster Avenue. We will affirm the District Court’s order.
In 2003, the Redevelopment Authority of the City of Philadelphia (“the
Redevelopment Authority”) filed in the Court of Common Pleas an action to condemn the
property at 1441 Ellsworth Street. At the same time, the property at 4555 Lancaster
Avenue was subject to an order, entered in a separate civil action in the Court of Common
Pleas, permitting it to be sold at sheriff’s sale.1 In October 2004, Ash filed a civil rights
complaint and a petition for a temporary restraining order in the United States District
Court for the Eastern District of Pennsylvania against the Redevelopment Authority and
Linebarger Goggan Blair & Sampson, LLP (“Linebarger Goggan”), a lawfirm overseeing
the collection of unpaid property taxes on 4555 Lancaster Avenue. Ash alleged due
process and equal protection violations, the basis of which is the unlawful taking of the
property. At a hearing held on the petition for a temporary restraining order, the District
Court concluded that because Ash had not utilized available state remedies to pursue his
claims, the claims had not yet ripened. The District Court consequently dismissed Ash’s
1
According to the parties, the property at 4555 Lancaster Avenue was sold at sheriff’s
sale in November 2004. See Brief for Appellee Linebarger Goggan Blair & Sampson,
LLP, 5; Reply Brief of Appellant, 3.
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complaint without prejudice.2
Our review of the District Court’s determination of ripeness is plenary. See
Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 597 (3d Cir. 1998). The Fifth
Amendment, made applicable to state and local governments under the Fourteenth
Amendment, proscribes the taking of private property for public use without just
compensation. U.S. C ONST. amend. V, XIV; Cowell v. Palmer Township, 263 F.3d 286,
290 (3d Cir. 2001). It does not require that the compensation be paid prior to the taking,
only that “a reasonable, certain and adequate provision for obtaining compensation exist
at the time of the taking.” Williamson County Regional Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 194 (1985) (cite omitted). “[I]f a State provides an
adequate procedure for seeking just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has used the procedure and been denied
just compensation.” Id. at 195. Indeed, “[s]tate courts are fully competent to adjudicate
constitutional challenges to local land-use decisions.” San Remo Hotel v. City and
County of San Francisco, – S. Ct. –, 2005 WL 1421451, at *13 (June 20, 2005).
Pennsylvania’s Eminent Domain Code provides that a condemnee is entitled to just
compensation for the taking, injury, or destruction of his property. See 26 Pa. Const. Stat.
2
Normally, the dismissal of a complaint without prejudice is not appealable unless the
plaintiff cannot amend the complaint or where the plaintiff declares the intention to stand
on the complaint as filed, whereupon the District Court’s order becomes final. Borelli v.
City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam). Here, we have
jurisdiction to review the District Court’s determination that Ash’s federal takings claim
is not yet ripe. See Cowell v. Palmer Twp., 263 F.3d 286, 287 (3d Cir. 2001)
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Ann. § 1-601. In addition, it provides for a procedure in state court by which a property
owner may pursue relief for the taking of his property. See 26 Pa. Const. Stat. Ann. § 1-
502. The Code also states that “[i]t is intended by this act to provide a complete and
exclusive procedure and law to govern all condemnations of property for public purposes
and the assessment of damages therefor . . . .” 26 P.S. §1-303; see also Fulmer v. White
Oak Borough, 606 A.2d 589, 593- 4 (Pa. Commw. Ct. 1992) (“Where a landowner’s
property has been taken by an exercise of eminent domain, whether it be a de facto taking
or by filing of a declaration, a landowner’s only recourse is to proceed under the Code.”).
Ash does not allege that there are no state court remedies available to him or that
he tried to bring a state court action under the Eminent Domain Code. Because Ash has
not utilized state remedies, he has not been denied just compensation. Thus, he cannot at
this time show a violation of the Just Compensation Clause and his taking claim is not
ripe for review. See Cowell, 263 F.3d at 291 (“Because the plaintiffs have not availed
themselves of the appropriate procedures under Pennsylvania law to obtain just
compensation, we agree with the District Court that their takings claim is not ripe.”).
Because Ash’s due process and equal protection claims are premised on his
allegation of an unlawful taking, they too are premature. See Taylor Investment Ltd. v.
Upper Darby Township, 983 F.2d 1285, 1292-95 (3d Cir. 1992) (applying Williamson
finality rule to substantive due process, procedural due process, and equal protection
claims). Indeed, until Ash has pursued his remedies in state court, a federal court cannot
4
make a complete determination as to his allegations that he did not receive proper notice
of the state court proceedings and that he was treated differently based on his race.
Entertaining these claims would allow Ash to circumvent the ripeness doctrine. See
Bateman v. City of West Bountiful, 89 F.3d 704, 709 (10 th Cir. 1996) (recognizing “that
the ripeness requirement of Williamson applies to due process and equal protection
claims that rest upon the same facts as a concomitant takings claim”). Accordingly, we
believe the District Court correctly dismissed Ash’s claims without prejudice.
To the extent Ash’s complaint seeks to challenge on equal protection grounds the
Court of Common Pleas order allowing the property at 4555 Lancaster Avenue to be sold
at sheriff’s sale, he is barred by the Rooker-Feldman doctrine. Cf. In re Knapper, 407
F.3d 573, 580-81 (3d Cir. 2005) (holding that Rooker -Feldman doctrine prevented
bankruptcy court from exercising subject matter jurisdiction over action brought by
debtor to set aside sheriff’s sales because of alleged due process violations). As
Linebarger Goggan notes, “Ash made no effort to pursue any available state court
remedies” concerning the order, which was entered on May 11, 2000. See Brief for
Appellee Linebarger Goggan, 7. Consequently, we understand that the order was final
when Ash filed his complaint in the District Court in October 2004. See Exxon Mobil
Corp. v. Saudi Basic Indust., Corp., 125 S. Ct. 1517, 1526-27 (2005).
Ash also appears to allege that his property was improperly taken for a private use.
See Appellant’s Informal Brief, 7. To the extent this claim is not precluded by Kelo v.
5
City of New London, Conn., --S.Ct. --, 2005 WL 1469529 (June 23, 2005), it need not be
considered here because Ash did not assert it in the District Court. See Brown v. Phillip
Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001) (“[A]rguments asserted for the first time
on appeal are deemed to be waived and consequently are not susceptible of review in this
Court absent exceptional circumstances.”).
For the above reasons, we will affirm the District Court’s order dismissing Ash’s
complaint without prejudice. Ash’s motion for the preservation of physical evidence is
denied.
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