 position in Tuttle was clarified by Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Pembaur noted that a single decision can constitute a "policy" where "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Id. at 483-84, 106 S.Ct. at 1300. As plaintiffs allege that such a deliberate choice occurred in this case, we reject the defendants' municipal policy argument.
We must also address whether the district court properly dismissed the plaintiffs' claim that the delay in issuing the building permit constituted an unconstitutional taking of property without just compensation.
Plaintiffs have not asserted a claim under the Just Compensation clause and do not assert that their property was taken from them by inverse condemnation.... There are no elements of a taking which would justify an eminent domain proceeding. No government entity took possession of the land. Neither in this case could Plaintiffs argue that there was any restrictive zoning laws or development regulations.
App. at 360-61.
Finally, defendants argue that plaintiffs waived this argument by filing a defective notice of appeal. They point out that this argument was only presented to the district court in the context of the plaintiffs' motion to vacate the district court's order of June 4, 1987, and that since the notice of appeal filed by the plaintiff refers only to that order, the plaintiffs have not appealed the district court's order of July 22, 1987, denying their motion to vacate.
The plaintiffs concede in their brief to this Court that they did not plead this claim against the defendant municipality of Bethel Park, and we will thus not consider the claim against that defendant. The plaintiffs, however, insist that their unconstitutional taking claim against the individual defendants is properly before us. We agree.
Plaintiffs raised this issue in their complaint against the individual defendants, and the district judge considered the merits of this claim in the context of the plaintiffs' motion to vacate the district court's order granting summary judgment. Although the plaintiffs, in a brief to the district court stated that they had not raised such a claim, they now admit that "in drafting such brief [we] erroneously overlooked the Amended Complaint... which does plead such a claim." Appellants' Brief at 18. It is also significant that the brief at issue was filed prior to the Supreme Court's decision in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, ___ U.S. ___, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), which expanded the ability of property owners to assert claims that their fifth amendment right to not have property taken without just compensation has been violated. We conclude that the plaintiffs did not waive this claim against the individual defendants.
We also find that the plaintiffs' notice of appeal was not defective. There is a "policy of liberal construction of notices of appeal... in situations where the intent to appeal an unmentioned or mislabeled ruling is apparent and there is no prejudice to the adverse party." Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir. 1984) (quoting parenthetically C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.), cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981)). In addition, an appeal of a grant of summary judgment invokes this Court's jurisdiction over the disposition of all claims in a complaint. Murray v. Commercial Union Ins. Co. (Commercial), 782 F.2d 432, 434-35 (3d Cir. 1986). We thus conclude that the district judge's orders of June 4, 1987 and July 22, 1987 are both properly before us.
Turning to the merits of the plaintiffs' unconstitutional taking claim, it is clear that the plaintiffs have not and cannot make out a claim that their property was "taken" without just compensation. Although the Supreme Court in First Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, ___ U.S. ___, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), extended this doctrine to encompass actions seeking damages for a temporary taking, the Court held that a temporary taking is not different in kind from a permanent taking when the temporary taking denies a landowner all use of his property. Id. 107 S.Ct. at 2388. The Court noted that it was not addressing the "quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like...." Id. at 2389.
As the plaintiffs here were merely denied a particular building permit, and retained the right to put their land to a variety of alternative uses, the actions of the defendants can not be said to have denied them all use of their property. Indeed, they have made no such allegation. We will affirm the district court's orders granting the defendants summary judgment on this claim, and denying the plaintiffs' motion to vacate the court's order of summary judgment.
We will reverse the district court's order granting the defendants summary judgment on plaintiffs' claim that they were denied their constitutional right to substantive due process, and will affirm the district court's dismissal of the remainder of the plaintiffs' claims. Each party to bear its own costs.
holding that, because "Pennsylvania affords a full judicial mechanism with which to challenge the administrative decision" at issue, "plaintiffs have no justifiable due process claim"
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Summary of this case from Sutton v. Chanceford Twp.Chelmsford Minibus and Coach Hire will transport you to all day time venues such as shopping malls and activity centres with relative ease and professionalism.
The main centre for shopping is the Meadows in Chelmsford and it has many stores such as Burtons, Boots, Herbal Inn, Hayes, Naked Flame Candles, Regis Hairstylists, Dorothy Perkins, Mad-house, Minx and also Mr Shoes. The main lunch and dinning can be provided by Costa Coffee and also Millie’s Cookies as well. There is also an onsite Odeon Cinema and this offers various discounts for young people, summer savings and also family events as well. You can also join the Odeon Premier which allows you to take part in the film fan Tuesday offerings.
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For a more relaxing and insightful day out you can visit the Chelmsford Museum which is open on most days except for Fridays and has various sections such as the pre-history geology and also the Victorian kitchen section as well.A New York Times reporter has fabricated and plagiarised dozens of stories that have appeared in the paper, according to a report published on its own front page yesterday. The "frequent acts of journalistic fraud" committed by Jayson Blair "represent a low point in the 152-year history of the newspaper", it said.
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It transpired that Blair had often filed from New York while pretending to be at the scenes