Vincent Tulio v. Lansdale Borough ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1644
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VINCENT J. TULIO,
Appellant
v.
LANSDALE BOROUGH
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:22-cv-02423)
District Judge: Honorable Timothy J. Savage
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Submitted Under Third Circuit L.A.R. 34.1(a)
on December 14, 2023
Before: BIBAS, PORTER, and FISHER, Circuit Judges
(Filed: December 18, 2023 )
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OPINION*
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BIBAS, Circuit Judge.
If litigants wait too long to sue, they will find the courthouse doors shut. Vincent Tulio
bought a warehouse in Lansdale, Pennsylvania, and converted it into an eight-unit com-
mercial building. When he bought it, its sewer fee was based on having three toilets. After
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
the renovations, it had six. But the Borough of Lansdale insisted on computing the sewer
bill based on seven toilets. For three years, he complained to the Borough and its staff, but
to no avail.
Frustrated, Tulio refused to pay his utility bills. So the Borough put liens on his property
for unpaid sewer and electric fees. And in 2011, it cut off his electricity (except to one unit)
and water. In 2015, because there were still outstanding bills, it denied him use-and-
occupancy permits. Even after he paid off many of the bills, the liens stayed put.
Pennsylvania state law has a process to challenge liens under the Municipal Claims and
Tax Liens Act, 53 Pa. Cons. Stat. § 7182 (the Act). Tulio sued in state court two years ago
but has failed to pursue that process. Instead, in 2022, he filed this federal civil-rights suit
under 42 U.S.C. § 1983, claiming that the Borough had violated due process and taken his
property without just compensation. He also included a state-law claim for breach of a
2013 settlement agreement.
The District Court granted summary judgment for the Borough on Tulio’s federal
claims and declined to exercise supplemental jurisdiction over the remaining state-law
claim. Tulio now appeals. We review his claims de novo. Tundo v. County of Passaic, 923
F.3d 283, 286 (3d Cir. 2019).
Tulio’s suit comes far too late. In Pennsylvania, the statute of limitations for § 1983
claims based on torts is two years. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009); see 42
Pa. Cons. Stat. § 5524(4), (7). Tulio’s claims arise from the 2011 shutoff of his utilities and
liens the Borough imposed between 2008 and 2015. He wanted to sue as early as 2011; in
2015 his lawyer confirmed that he should have sued then. And the persistence of liens is
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not a continuing violation that can extend the statute of limitations. Cowell v. Palmer Town-
ship, 263 F.3d 286, 293–95 (3d Cir. 2001). Likewise, he should have brought his breach-
of-settlement claim within the four-year statute of limitations. 42 Pa. Cons. Stat.
§ 5525(a)(8). He is thus out of time.
In any event, Tulio’s due-process claim fails on the merits. He had no right to a pre-
deprivation hearing before the Borough recorded its utility liens. Augustin v. City of Phil-
adelphia, 897 F.3d 142, 144–45, 149 (3d Cir. 2018). The Act’s post-deprivation proce-
dures, we have held, satisfy due process. Id. at 153. Plus, because there is a state remedy
that is not “patently inadequate,” Tulio’s failure to pursue it bars his federal due-process
claim. Holland v. Rosen, 895 F.3d 272, 297 (3d Cir. 2018) (internal quotation marks omit-
ted). Having tossed out the federal claims, the District Court properly declined to exercise
jurisdiction over the state-law one. See 28 U.S.C. § 1367(c)(3). So it correctly granted sum-
mary judgment, and we will affirm.
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