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January 21, 1980

JOHN ELLIS, et al.

The opinion of the court was delivered by: BECKER


I. Preliminary Statement

 This civil rights action arises out of the state investigation and prosecution that followed the October 5, 1975 firebombing of the home of Radames Santiago in the Feltonville section of Philadelphia which killed five persons. The lead plaintiff is Robert Wilkinson ("Wilkinson"), who was convicted in the Philadelphia Court of Common Pleas of five counts of murder in connection with the firebombing, but who was subsequently, after serving 439 days in prison, cleared of any involvement in the crime. *fn1" The other plaintiffs are Wilkinson's wife, Christine Wilkinson, and his son, Robert Wilkinson, Jr. Defendants, all of whom are alleged to have been involved in some phase of the investigation or prosecution, include a number of Philadelphia police officers, *fn2" supervisory personnel of the police department and the District Attorney's office, *fn3" and the City of Philadelphia itself. *fn4" Advancing federal and pendent state law claims, plaintiffs seek both compensatory and punitive damages. *fn5" Before us are several motions to dismiss plaintiffs' claims, raising a variety of legal issues. We herein address and dispose of all but one of the issues raised by these motions, *fn6" while reserving decision on the final point until a later time. *fn7" Before our legal discussion, it will be useful to outline briefly plaintiffs' allegations. The complaint, which chronicles the factual basis for the plaintiffs' claims in enormous detail, alleges the following facts.

 On October 5 and 6 and November 3, 1975, the defendant detectives received written statements to the effect that plaintiff Robert Wilkinson was not involved in the crime, but that one David McGinnis, in the presence of others, had thrown the bomb. This information was, however, never investigated and, although defendants Berman, Haines, and Ellis knew of the statements prior to trial, defense counsel was never informed of them. Nor was counsel informed that, on November 14, 1975, Nelson Garcia gave a statement to police which differed materially from his previous statements.

 On the eve of plaintiff's trial, March 26, 1976, David McGinnis came forward to explain to defendants Berman, Ellis, Brennan, and Harris his involvement in the firebombing, exonerating Wilkinson. McGinnis' written statement, the complaint alleges, was not revealed to defense counsel until midway into the trial; not until even later was it disclosed that a tape-recording had existed of a portion of the interview with McGinnis, but that the tape had been destroyed by defendant Berman. During the trial, defendants Ellis, Haines, and Berman made false statements to the court concerning disclosure of exculpatory material to defense counsel.

 On October 4, 1976, after their own investigation of the firebombing incident, federal authorities furnished defendants Haines and Ellis with the entire federal investigative file. Although this investigation exculpated Wilkinson, defendant Haines refused to comply with the federal request to seek plaintiff's release. Because of this inaction, federal indictments against McGinnis and another were pursued, resulting in convictions. *fn8" The testimony at the federal trial again exonerated Wilkinson.

 Furthermore, in November, 1976, Nelson Garcia stated in a sworn deposition that he had not seen Wilkinson throw the firebomb and, on December 20, 1976, he formally recanted his state trial testimony before a state judge. At the conclusion of the hearing, Wilkinson was finally released from prison. Nonetheless, on March 3, 1977, defendants Haines and Fitzpatrick, again without disclosing to defense counsel exculpatory evidence in their possession, approved and announced a decision to retry Wilkinson, who immediately moved to dismiss the indictment. During the hearing on this motion, the complaint further alleges, defendants Ellis and Berman again perjured themselves concerning their conduct in the firebombing investigation. On March 10, 1977, the complaint in this action was filed. On June 2, 1977, the state court granted Wilkinson's motion to dismiss, holding that the prosecution was being maintained in bad faith without reasonable expectation of obtaining a supportable verdict. *fn9"

 Thus, in summary, plaintiffs have alleged:

Starting in October, 1975, Defendants intentionally and maliciously engaged in a pattern and course of conduct that included their ignoring, secreting, and destroying evidence that Wilkinson had neither thrown the bomb nor been involved evidence that, viewed fairly, amounted to conclusive proof of Wilkinson's innocence. This pattern and course of conduct was intended by the defendants to justify their continued prosecution of Plaintiff Wilkinson and thereby avoid or soften exposure of the irresponsible and unlawful course of the investigation.
Starting in early October, 1975, the defendants, under color of the laws and authority of the Commonwealth of Pennsylvania, having first pursued an erroneous course in their investigation and utilized unlawful and brutal methods, proceeded to knowingly, intentionally, and maliciously deprive Plaintiff Robert Wilkinson of his liberty and other rights secured by the Constitution of the United States after there was no sufficient or believable cause that he was guilty in an apparent attempt to foreclose or minimize the repercussions of their irresponsible, illegal, and unjustifiable acts.

 Complaint, PP 51 & 54. *fn10" We turn now to the issues raised by defendants' motions.

 II. The Statute of Limitations Issues

 Defendants contend that some or all of Wilkinson's federal and state law claims were time-barred when he filed his complaint on March 10, 1977. *fn11" We assess these contentions by first setting forth the general principles governing limitations in civil rights cases, and then by applying these principles to each of Wilkinson's claims.

 There being no limitations period written into the Civil Rights Act, as a federal court sitting in Pennsylvania we must apply the Pennsylvania limitations period(s) for the tort or torts most analogous to the conduct alleged in the complaint. See Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974); Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974). Where the analogous state causes of action are "inextricably intertwined," all of the defendant's alleged conduct may be subsumed under one limitations period, see, e.g., Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971), but where the analogous causes of action are "separable," different statutes of limitations may be applied. See, e.g., Polite v. Diehl, supra.

 Wilkinson contends that the assault and battery, malicious prosecution, abuse of process, and intentional infliction of emotional distress causes of action alleged in his complaint are separable and thus governed by different statutes of limitations. He submits that the assault and battery and intentional infliction claims are governed by 12 P.S. § 34, which allows two years to bring personal injury actions; that the abuse of process claim is governed by 12 P.S. § 31, a two-year statute for other kinds of personal actions; and that the malicious prosecution claim is governed by the one-year period of 12 P.S. § 51. We agree with Wilkinson's analysis of these causes of action and the applicable limitations period for each, *fn12" and conclude that they are separable and not time-barred. *fn13"

 Wilkinson's cause of action for intentional infliction of emotional harm, a tort now clearly accepted under Pennsylvania law, see Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) (en banc), accrued on October 5, 1975, when, according to the allegations of the complaint, some of the police defendants beat and threatened him, told him, inter alia, that he would lose custody of Robert, Jr. unless he signed a statement implicating himself in the firebombing, and ultimately coerced an involuntary and untruthful confession from him. See complaint PP 23, 27, and 28. Defendants do not, and could not, seriously argue that these alleged activities are "inextricably intertwined" with the initial arrest. Because these allegations state a separable cause of action for injury to the person, they are governed by the two-year period of 12 P.S. § 34, and the claim was timely filed.

 Wilkinson's complaint in effect states two separate claims for malicious prosecution, or prosecution without probable cause: one relating to the initial prosecution, and a second relating to the decision to reprosecute. The limitations period applicable to an action for malicious prosecution is 12 P.S. § 51, a one-year statute, but the cause of action does not accrue until there has been a disposition terminating the underlying criminal proceeding in such a manner that it cannot be revived. See Sicola v. First National Bank, 404 Pa. 18, 170 A.2d 584 (1961). The criminal proceedings against Wilkinson were not terminated until June 2, 1977, when Judge Marshall dismissed the indictments with prejudice; hence his malicious prosecution claims were timely filed.

 Wilkinson's final state law claim is for abuse of process, which is the use of legal process against another primarily to accomplish a purpose for which it is not designed. See, e.g., Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977). Wilkinson alleges that legal process was used against him, not for the permissible purposes of bringing a guilty person to justice or enforcing the law, but for the impermissible purposes of covering up or minimizing the repercussions of defendants' illegal conduct. The statute of limitations for abuse of process is the general trespass two-year statute of 12 P.S. § 31. See, e.g., Jennings v. Shuman, supra. The abuse of process action did not accrue until the relevant defendants became aware of events, including McGinnis' confession, which suggested Wilkinson's innocence. These events were all well within the two-year period.

 Concluding as we do that Wilkinson's claims are separable and that none with the exception of his false arrest and false imprisonment claims is time-barred, see n. 13 supra, we reject defendants' statute of limitations contentions and decline to dismiss on those grounds.

 III. Prosecutorial Immunity

 A. General Principles

 The motions to dismiss by assistant district attorney defendants Haines and Berman raise several difficult issues of the extent to which prosecutorial personnel are immune from civil suits for damages under § 1983. *fn14" The preeminent case on prosecutorial immunity is Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). Accordingly, we look to Imbler and to the Third Circuit's most recent exposition of Imbler, Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979), for guidance in resolving these issues. *fn15"

 In Imbler the Supreme Court granted to a state prosecutor absolute immunity from a § 1983 suit which charged him with the knowing use of perjured testimony. The Third Circuit has characterized the Imbler holding as narrow, noting that the Court emphasized that the prosecutor's activities in Imbler "were intimately associated with the judicial phase of the criminal process," and therefore, were "functions to which the reasons for absolute immunity apply with full force." 424 U.S. at 430, 96 S. Ct. at 995. See Forsyth, supra, at 1213. Imbler left open the question whether a prosecutor should have absolute immunity for those aspects of his responsibility that cast him in the role of an administrator or investigative officer, rather than that of an advocate. In Forsyth the Third Circuit answered this question in the negative, holding that where the activities of a prosecutor depart from those which cast him in a quasi-judicial role, the protection of absolute immunity will not be available. 599 F.2d at 1214-15. For those non-advocatory functions, a prosecutor has qualified immunity only. *fn16"

 The test we derive from Imbler and Forsyth for determining the scope of immunity to be afforded for particular prosecutorial activities is a functional one: there is absolute immunity for quasi-judicial functions, but only qualified immunity for administrative or investigative functions. *fn17" Plaintiffs have suggested several factors to consider in undertaking a functional analysis of particular prosecutorial activity: the physical and temporal relationship of the activity in question to the judicial process, *fn18" the degree to which the acts depend upon legal opinions and/or discretionary judgments, *fn19" and the extent to which the acts at issue are primarily concerned with the prosecutor's role as an advocate. ...

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