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December 27, 1963

Verle G. CONARD, Plaintiff,
Lewis S. STITZEL, Warden, Berks County Prison, Defendant

The opinion of the court was delivered by: FREEDMAN

Plaintiff sues under the Civil Rights Acts *fn1" for violation of constitutional rights guaranteed by the Eighth Amendment's provision against cruel and unusual punishment and the Fourteenth Amendment's provision against denial of the equal protection of the laws. He charges that the defendant, who is Warden of the Berks County Prison, subjected him to cruel and unusual punishment while he was incarcerated there from sometime in May 1959 to July 22, 1959. He alleges that he was given inadequate food and accommodations, was deprived of medical care, was denied the rights and privileges normally afforded prisoners, and that in consequence he suffered physical and mental pain and anguish. *fn2" Plaintiff escaped from the Berks County Prison on July 22, 1959, but was recaptured on October 19, 1959 and has since been incarcerated.

Defendant has moved for judgment on the pleadings on the ground that the action is barred by the statute of limitations.

 We deal here with a federal cause of action. There is no general federal statute of limitations, *fn3" and Congress has not specified a limitation period for this specific cause of action. In such circumstances it has long been the general practice of the federal courts to apply the relevant state statute of limitations. *fn4" The application of state statutes of limitations to federal causes of action is not ordinarily inconsistent with federal policy. Indeed, the failure of Congress to designate a limitation period may be said to indicate a congressional intention that the state period should apply. *fn5"

 In Campbell v. Haverhill, *fn6" the Supreme Court held that a state statute of limitations barred a patent infringement action in the federal courts. This conclusion was said to be compelled by the Act of Congress that: 'The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.' *fn7" But the court went on to assign reasons of general policy: 'Why should the plaintiff in an action for the infringement of a patent be entitled to a privilege denied to plaintiffs in other actions of tort? If States cannot discriminate against such plaintiffs, why should Congress by its silence be assumed to have discriminated in their favor? Why, too, should the fact that Congress has created the right, limit the defenses to which the defendant would otherwise be entitled? Is it not more reasonable to presume that Congress, in authorizing an action for infringement, intended to subject such action to the general laws of the State applicable to actions of a similar nature?' *fn8"

 It is not always easy to decide what is the applicable state statute. Resort must necessarily be had to the decisions of the state courts which have dealt with state causes of action of a similar nature. Thus in Gordon v. Loew's Inc., *fn9" an antitrust suit under the Clayton Act was held barred by a New Jersey statute of limitations, N.J.S. 2A:14-1, N.J.S.A., for 'actions at law brought for any forfeiture upon any penal statute' because the New Jersey courts had held the statute applicable to a treble damage action by a tenant against his landlord under the State Rent Control Act, N.J.S. 2A:42-14 et seq., N.J.S.A. The state court view was permitted to prevail even though an antitrust suit is not covered by the federal statute of limitations for actions in the nature of a penalty or forfeiture. *fn10" The principle of the Gordon case has been reaffirmed in this circuit in Carlton Lamp Corp. v. General Electric Co., 254 F.2d 815 (3d Cir. 1958); Dean Oil Co. v. American Oil Co., 254 F.2d 816 (3d Cir. 1958); and Shapiro v. Paramount Film Distributing Corp., 274 F.2d 743 (3d Cir. 1960).

 Since there is no Pennsylvania statute of limitations of general applicability to actions to vindicate invasions of constitutional rights, determination of the applicable statute of limitations must be made from the nature of the conduct complained of. Here the gravamen of the complaint is that defendant caused plaintiff to suffer physical and psychological injury. The statute of limitations under which this case falls is the Act of June 24, 1895 (P.L. 236, § 2, 12 P.S. § 34), which prescribes a two-year period of limitations in suits 'brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death * * *.'

 The Act of 1895 has been construed broadly and has been applied to actions for injuries done to the person whether the claim sounded in tort or assumpsit. *fn11" It has also been applied to a damage action for invasion of the right of privacy on the ground that such a claim is for 'injury wrongfully done to the person' and not for injury to property. *fn12"

 Plaintiff urges that his action falls outside the scope of the statute for personal injuries on the authority of Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958). There an action under the Federal Civil Rights Act was held not within the Illinois statute for injuries to the person, but governed by the limitation period for 'civil actions not otherwise provided for.' Ill.Rev.Stat.1955, c. 83, § 16. That case is based on the construction which the Illinois state courts have given to their statutes. It sheds little light on the statutory framework of Pennsylvania, which has no similar 'catch-all' provision. *fn13"

 Since the present action is governed by the Act of 1895 it is of no moment that the claim might also fit within the language of the colonial Act of March 27, 1713 (1 Smith's Laws 76, § 1, 12 P.S. § 31). It has been authoritatively decided that the Act of 1713 was impliedly repealed by the later Act of 1895 to the extent that it dealt with the same subjects. *fn14"

 It follows, therefore, that the plaintiff's imprisonment during all or part of the two-year period immediately preceding the filing of his complaint did not toll the running of the applicable Pennsylvania statute of limitations.

 It remains to be considered whether I must modify or reject entirely the state statute of limitations in order to protect the federal cause of action or safeguard a federal policy inherent in it.

 The fundamental premise on which federal courts apply state statutes of limitations to federal causes of action is that thereby the implied intention of Congress is carried out. But in some circumstances it is highly unreasonable to ascribe such an intention to Congress. Thus federal courts will not apply a state statute of limitations which discriminates against federal causes of action by expressly fixing a shorter period for them than for similar state actions. *fn17" And the established federal equitable doctrine that fraudulent concealment of a wrong suspends the operation of laches or statutes of limitations *fn18" has been applied in actions on federal causes to which state statutes of limitations were held applicable. *fn19" So too, federal courts have refused to apply the provision of would have allowed service in the state which would have tolled its operation because of defendant's absence from the state, where the service of process provisions of the federal antitrust laws would have allowed service int he state during that period. *fn20" Finally, it has been held in an action under § 303(b) of the Labor Management Relations Act *fn21" that the close interrelation between the various statutes which comprise the federal labor program renders the need for a uniform rule as to the limitation of actions so great as to preclude the application of the diverse state periods. *fn22"

 The present case is not one calling for special intervention against the operation of the state statute of limitations. There is no discrimination against the assertion of federal rights, for the absence of a tolling provision in cases under the Act of 1895 applies equally to state and federal causes of action. There is no established federal judicial principle that periods of limitation should not run on federal causes of action while a potential plaintiff is in prison. Nor is there any closely interwoven federal statutory scheme which will be hampered unless actions under the Federal Civil Rights Acts are preserved during imprisonment. The general and 'catch-all' language of the Civil Rights Acts gives rise to federal causes of action for many unrelated types of wrongs, and there is no such need for uniformity as exists in areas such as federal ...

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