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GAGLIARDI v. LYNN (12/20/71)

decided: December 20, 1971.

GAGLIARDI, APPELLANT,
v.
LYNN



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1969, No. 1004, in case of John Gagliardi v. George W. Lynn and Abert Belan.

COUNSEL

Paul A. Simmons, with him Tempest & Simmons, for appellant.

Leo Kostman and William K. Herrington, with them Richard G. Zeleznik, and Weis & Weis, for appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Pomeroy

[ 446 Pa. Page 145]

This is an appeal from a summary judgment in an action in trespass entered in favor of appellees, defendants below. The complaint in the case is entitled "Complaint in Trespass for false imprisonment". The

[ 446 Pa. Page 146]

    answers did not deny any factual averments, but asserted as new matter the bar of the statute of limitations. No depositions were taken nor affidavits filed, and the only facts before us are those set forth in the amended complaint; these must be taken as true for purposes of this appeal. See Pa. R. C. P. 1035(b); Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174 (1966) (a case involving a motion for judgment on the pleadings). The facts relevant to disposition of this appeal are as follows:

On July 14, 1967, the mayor of West Mifflin Borough, George W. Lynn, one of the two appellees, informed a resident of the borough, John Gagliardi, the appellant, that in order for him to continue with construction work then in progress on Gagliardi's property, he would have to secure a permit and post a bond pursuant to a borough ordinance. When appellant disputed this order, Mayor Lynn directed a borough police officer, appellee Belan, to detain appellant in the local jail. The resulting incarceration lasted for some nine hours. When brought before a justice of the peace three days later for a hearing on the charges against him (unspecified in the complaint), the justice of the peace determined that the asserted authority for appellant's imprisonment was not contained in any Borough ordinance. The complaint charges that the acts of the appellees in causing the imprisonment were willful, malicious and unlawful and without cause or provocation, all to the loss and damage of appellant. Ordinary and punitive damages were demanded.

The suit was commenced on May 6, 1969, by the filing of a complaint which was promptly served. After preliminary objections, an amended complaint was filed.

The lower court, in sustaining defendant's motion for summary judgment, held the action to be barred

[ 446 Pa. Page 147]

    by the Act of July 1, 1935, P. L. 503, 12 P.S. § 51, which establishes a one year period of limitations applicable to actions of malicious prosecution and false arrest. That act provides as follows: "Every suit to recover damages for malicious prosecution or for false arrest, because of a right of action hereafter accruing, must be brought ...


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