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FUNK v. CABLE

March 10, 1966

Charles R. FUNK, Plaintiff,
v.
Llewlyn CABLE, J. C. Hege, John L. Hollingshead, Harry Hoffman, Marshall Witter, Margaret J. Palmer, Robert L. Johnston and Terance R. Brand, Defendants



The opinion of the court was delivered by: SHERIDAN

 This is a motion by defendants to dismiss the action because the complaint fails to state a claim upon which relief can be granted, or in the alternative, to require plaintiff to file a more definite statement.

 This action is brought pursuant to Section 1 of the Civil Rights Act of 1871, 42 U.S.C.A. § 1983. Plaintiff alleges that defendants, members of the board of directors of the School District of the Township of Montgomery, Franklin County, Pennsylvania, the tax collector of the District, a justice of the peace and a constable of Antrim Township, Franklin County, in violation of Section XI of the Wage and Profits Tax Resolution of 1960 enacted by the above board of directors, caused plaintiff to be arrested and incarcerated for failure to pay a wage and profit tax. He alleges that such arrest and imprisonment was illegal, malicious and without reasonable and probable cause with the result that he was deprived of his rights, privileges and/or immunities secured by the Constitution and laws of the United States.

 Defendants' motion to dismiss for failure to state a claim was originally based on two grounds; that the Pennsylvania one year statute of limitations barred the action and that plaintiff's complaint was deficient in that it failed to contain an allegation that he obtained a favorable conclusion to the alleged prosecution. The latter ground was withdrawn, however, with the result that only the question of the statute of limitations is now before this court.

 In actions under this section, the State statute of limitations is controlling. The statute to be applied is that which the state would apply had an action been brought in a court of that state. Swan v. Board of Higher Educ. of the City of N.Y., 2 Cir. 1963, 319 F.2d 56; Crawford v. Zeitler, 6 Cir. 1964, 326 F.2d 119. Where a complaint under this section includes allegations which give rise to several causes of action under state law, the federal courts may apply the most applicable state statute. Beauregard v. Wingard, S.D.Calif.1964, 230 F. Supp. 167.

 Defendants state that the alleged illegal arrest and imprisonment occurred on July 11 and 12, 1963. The instant action was not filed until July 9, 1965. They contend that actions for malicious prosecution and false arrest are governed by 12 P.S. § 51 which provides for a one year period of limitation. They cite a Pennsylvania Common Pleas Court case for the proposition that within the intendment of the statute, false arrest includes false imprisonment. They conclude, therefore, that since this action is based on malicious prosecution, false arrest and imprisonment, the one year statute applies.

 Plaintiff concedes that if the cause of action sounded only in false arrest or malicious prosecution, it would be barred by the one year statute of limitations. He contends, however, that the facts of this case give rise to four additional causes of action subject to at least a two year period of limitations; abuse of legal process; false imprisonment; assault and battery; and invasion of privacy.

 A review of the complaint indicates that the allegation could sound in the Pennsylvania action of abuse of process. In Sachs v. Levy, E.D.Pa.1963, 216 F. Supp. 44, it was pointed out that in Pennsylvania an action for malicious use of process is the same as an action for malicious prosecution and is therefore subject to the one year period of limitation specified in 12 P.S. § 51; however, the action of abuse of process being an action recognized by the Pennsylvania courts as different from that of malicious use of process, is not subject to 12 P.S. § 51. In Sachs the gravaman and the elements of the misconduct were summarized as follows:

 
"1. An ulterior motive either at the initiation of process or thereafter;
 
"2. A wilful or improper act in the use of process contrary to what is regular in the conduct of such a proceeding; and
 
"3. A seizure of the person or property of the plaintiff.
 
"The ulterior motive usually takes the form of coercion, or extortion to obtain a collateral advantage not involved in the proceeding itself, such as payment of a debt or blackmail.
 
"The improper use of the process cannot be inferred from the motive but must be proved separately.
 
"An arrest of the person of a plaintiff could constitute the element of seizure ...

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