The opinion of the court was delivered by: GORBEY
Defendants have filed a motion to dismiss the complaint in this civil rights matter. The plaintiffs' claims arise out of the police handling of a domestic disturbance on August 23, 1970, which led to their arrest. They contend that they were the victims of assault and battery, that they were unlawfully taken into custody, and that charges of assault and battery upon a police officer were filed against them solely to prevent them from filing charges against the defendant police officers. The defendants contend in their motion to dismiss that this action is barred by the statute of limitations.
The complaint in this matter is composed of three counts which are founded upon the same allegations. The first count assets a claim under 42 U.S.C. § 1983. The second count asserts a claim under 42 U.S.C. § 1985, and the third count asserts a pendent claim under state tort law.
The statute of limitations in federal civil rights actions is determined by looking to the analogous state statute of limitations. In Ammlung v. City of Chester et al., 494 F.2d 811 (3d Cir. 1974), the court observed:
"Since there is no federal statute of limitations with respect to civil rights actions arising under 42 U.S.C.A. § 1983, the court below properly held that the Pennsylvania statute of limitations for analogous actions should be applied. O'Sullivan v. Felix, 1914, 233 U.S. 318, 34 S. Ct. 596, 58 L. Ed. 980; Hileman v. Knable, 3 Cir. 1968, 391 F.2d 596; Henig v. Odorioso, 3 Cir. 1967, 385 F.2d 491, cert. denied, 390 U.S. 1016, 88 S. Ct. 1269, 20 L. Ed. 2d 166, rehearing denied 1968, 391 U.S. 929, 88 S. Ct. 1814, 20 L. Ed. 2d 671; Hughes v. Smith, D.N.J. 1967, 264 F. Supp. 767, aff'd 3 Cir. 1968, 389 F.2d 42. The limitation period to be applied is that which the state would apply if the action had been brought in a court of that state. Funk v. Cable, M.D. Pa. 1966, 251 F. Supp. 598, 599. There being no Pennsylvania statute of limitations of general applicability to actions involving invasions of constitutional rights, the applicable statute of limitations must be determined from the nature of the conduct alleged. Conard v. Stitzel, E.D. Pa. 1963, 225 F. Supp. 244, 247."
There is no question that to the extent the suit seeks recovery for assault and battery the action must be brought within a two year limitation period (Act of Mar. 27, 1713, 1 Sm. L. 76, § 1, 12 P.S. § 31). Nor is it disputed that to the extent the claim is for false arrest, the statute of limitations is one year (Act of July 1, 1935, P.L. 503, No. 196, § 1, 12 P.S. § 51).
At issue is the statute of limitations for the plaintiffs' claim that charges of assault and battery on a police officer were filed against them to prevent their filing of a charge of police brutality. It is the defendants' contention that such conduct would give rise to a claim for malicious prosecution which is subject to the one year statute of limitations of 12 P.S. § 51. Plaintiffs on the other hand would characterize this conduct as abuse of process which they contend would subject their claim to the two year statute of limitations of 12 P.S. § 31.
Defendants point out that the Commonwealth of Pennsylvania recognizes three related torts; false imprisonment,
malicious use of process and malicious abuse of process. The latter two related torts frequently go under the name malicious prosecution. These are, however, two distinct actions.
Malicious abuse of process is the employment of process, where probable cause exists, but the intent is to secure objects other than those intended by law. See Morphy v. Shipley, 351 Pa. 425, 41 A.2d 671 (1945); Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413 (1943). In Publix Drug Co. v. Breyer Ice Cream Co., supra, the court observed "the gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it: . . . [cites omitted]" See also Morphy v. Shipley, supra, and Foster v. Sweeny, 14 Serg. & R. Pa. 386 (1826). A plaintiff need not prove want of probable cause where the claim is for an abuse of legal process. Morphy v. Shipley, 351 Pa. 425, 41 A.2d 671 at 673.
Thus it appears that under Pennsylvania law malicious abuse of process is concerned with the issue of process where there is probable cause and a later perversion of that process to accomplish another purpose. Malicious use of process is concerned with the issuance of process when there is no probable cause regardless of the intent for which it is issued.
We are concerned here with the malicious use of process. The complaint charges in paragraph 28: "Neither of the plaintiffs had at any time acted in a disorderly manner nor had they assaulted any police officer," and in paragraph 29: "The charges were placed against plaintiffs only after the assaults on them and Ernest Edwards by defendants, and were placed only to protect the officers against charges of brutality." Thus the plaintiffs contend that prosecution was initiated without probable cause which makes this an action for malicious use of process.
As such, the applicable statute of limitations is one year. Sachs v. Levy, 216 F. Supp. 44-46 (E.D. Pa. 1963); and see Funk v. Cable, 251 F. Supp. 598 (M.D. Pa. 1966).
A statute of limitations begins to run when the cause of action arises as determined by the occurrence of the final significant event necessary to make the claim suable. Mack Trucks, Inc. v. Bendix-Westinghouse Auto. A.B. Co., 372 F.2d 18 (3d Cir. 1966); Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949). It is also well settled that in order to maintain an action for malicious prosecution the underlying action must be terminated in the plaintiff's favor. Mayer v. Walter, 64 Pa. 283 (1870). See also Altman v. Standard Refrigerator Co., 315 Pa. 465, 173 A. 411 (1934); Baird v. Aluminum Seal Co., 250 F.2d 595 (3d Cir. 1957). Thus, the statute of limitations for malicious use of process does not begin to run until the favorable termination of the underlying prosecution. The complaint in this action was filed on August 22, 1972. The charges against plaintiff Edwards were discharged on August 24, 1970. Thus, her claim is barred by the one year statute of limitations.
Plaintiff Hughes was tried on March 27, 1972, at which time a demurrer to the charges against her was sustained. Thus, plaintiff Hughes' complaint was filed within the one year statue of limitations.