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February 4, 1980

George CHASE, Sgt. John Doe, Joseph O'Neill, Frank L. Rizzo, Ralph Dennis, Joseph R. Glancey, and The City of Philadelphia.

The opinion of the court was delivered by: POLLAK


On April 11, 1979, plaintiff Colie B. Chappelle, Esq., a lawyer practicing in Philadelphia, commenced this action against Philadelphia Municipal Court Judge Ralph Dennis; President Judge of the Municipal Court Joseph R. Glancey; Officer George Chase and Sergeant "John Doe" of the Philadelphia police force; former Police Commissioner Joseph O'Neill; former Mayor Frank L. Rizzo; and the City of Philadelphia. The complaint asserts (1) federal claims said to arise under the Fourteenth Amendment and under 42 U.S.C. § 1983 and other federal civil rights statutes, and (2) state law claims asserted to be pendent to the federal claims.

 Judge Dennis has moved to dismiss on the grounds (1) that this Court lacks jurisdiction over him because he is protected by judicial immunity, and (2) that the complaint fails to state a claim against him upon which relief can be granted. Judge Glancey has moved to dismiss on the immunity grounds and on the additional grounds that (1) respondeat superior does not reach mere negligence in civil rights cases, and (2), even if it did, he cannot be vicariously liable if Judge Dennis is not primarily liable. Defendants Chase, O'Neill, Rizzo and the City have moved to dismiss (1) for lack of jurisdiction and failure to state viable causes of action, and (2) because the claims are time-barred.

 The time-bar defenses, though more modest in implication than the jurisdictional defenses, are broader in scope, since, if meritorious, they bar most of the claims made against all of the defendants. I will, therefore, begin by assuming, arguendo, that the challenges to jurisdiction and the asserted causes of action are unfounded, *fn1" and will address the various statute of limitations questions. To put the questions in context, it is necessary to summarize the factual allegations of the complaint.


 On the basis of these alleged events, Mr. Chappelle has charged all the defendants with violating his federal constitutional and statutory rights, and also various state common law rights. Specifically, he has accused them of depriving him of his rights (1) to be free of illegal seizure of his person, (2) to be free of cruel and unusual punishment, (3) to due process and equal protection, and (4) to "freely, fully, and truthfully" participate in judicial proceedings; he has also accused them of assault and battery, defamation, false arrest and false imprisonment. Finally, he has charged them (although this would appear to apply only to the defendant City and its former Mayor and Police Commissioner) with negligent failure properly to "discipline, restrict and control employees known to be dangerous" and with failing to take "adequate precautions in the hiring and retention of police officers and judges."

 Since there are no specifically stated federal statutes of limitations governing actions under 42 U.S.C. § 1983, 42 U.S.C. § 1988 instructs that the controlling provision is the most appropriate limitations period provided by state law, "so far as the same is not inconsistent with the Constitution and laws of the United States." *fn2" See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975).

 Defendants contend that under Pennsylvania law plaintiff's claims sounding in conspiracy and defamation are subject to a one-year statute of limitations. Plaintiff alleges that Judge Dennis and Officer Chase and another person named "Morris" (not named as a defendant or otherwise identified in the complaint) each "conspired with others to defame" plaintiff. Complaint PP 28-30. Assuming that a conspiracy to defame can give rise to a cause of action under § 1983, (but see Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)), these claims are nonetheless time-barred. Although the Court of Common Pleas did hold, in Smith v. Morris, 40 D.C. 237 (Pa.C.P.1941), that such an alleged conspiracy was subject to a six-year statute of limitations, I am persuaded that the proper Pennsylvania rule, reflected in more recent decisions, instructs the court to be guided by the statute of limitations for the substantive offense alleged to have been the object of the conspiracy. Brownley v. Gettysburg College, 68 D.&C.2d 288, 297-302 (Pa.C.P.1973), aff'd 229 Pa.Super. 739, 322 A.2d 368; Auld v. Mobay Chemical Co., 300 F. Supp. 138 (W.D.Pa.1969). The relevant statutes are 12 P.S. §§ 31 and 32 which specify a one-year statute of limitations for "trespass on the case for words." These claims will be dismissed.

 Next, defendants argue that plaintiff's claims sounding in false arrest and malicious prosecution are governed by the one-year limitations period heretofore prescribed by former 12 P.S. § 51. Here, the false-arrest claim accrued on April 11, 1977; and the malicious prosecution claim accrued on June 3, 1977, when the criminal charges against plaintiff were withdrawn. See Sicola v. First National Bank, 404 Pa. 18, 170 A.2d 584 (1961). Since the complaint was not filed until April 11, 1979, these claims are time-barred if Section 51 controls. Furthermore, defendants assert that plaintiff's claims sounding in false imprisonment and in assault and battery and his claim charging an unlawful search of his person must be subsumed under Section 51's one-year false-arrest/malicious-prosecution limitation because the conduct giving rise to those claims was "inextricably intertwined" with Mr. Chappelle's arrest. See Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971).

 Mr. Chappelle does not dispute that the defamation claim apart the claims are all "inextricably intertwined," and that if Section 51 governs as to false arrest and malicious prosecution, it bars the other claims as well. Rather, plaintiff points to 42 Pa.C.S.A. § 5524, Pennsylvania's newly enacted limitations provision, which allows two years for actions for false arrest, malicious prosecution, assault and battery, and false imprisonment. *fn3" This provision took effect June 27, 1978. Plaintiff concedes that (1) the new act specifically provides that "no cause of action fully barred prior to the effective date of this act shall be revived by reason of the enactment of this act," and (2) accordingly, under state law, his claims which were fully barred as of April 12 and June 3, 1978 were not revived by the new two-year provision. Nonetheless, plaintiff argues that this court, in determining the timeliness of plaintiff's federal-law claims, should disregard the non-revival provision. It is plaintiff's view that the non-revival provision, by denying him recovery, "contravenes . . . Congressional policy geared to promote prosecution of meritorious civil rights claims," and therefore is, within the meaning of 42 U.S.C. § 1988, "inconsistent with the Constitution and laws of the United States."

 The Supreme Court has recently reemphasized that "Federal courts must be ever vigilant to insure that application of state law poses "no significant threat to any identifiable federal policy or interest.' " Burks v. Lasker, 441 U.S. 471, 479, 99 S. Ct. 1831, 1838, 60 L. Ed. 2d 404 (1979) (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S. Ct. 1301, 1304, 16 L. Ed. 2d 369 (1966)). Thus, "specific aberrant or hostile state rules," United States v. Little Lake Misere Land Co., 412 U.S. 580, 596, 93 S. Ct. 2389, 2398, 37 L. Ed. 2d 187 (1973), will not be applied. And state rules which operate to frustrate federal policy here the weighty policy of preventing official illegality will be displaced, lest "the prohibition of (the) federal statute . . . be set at naught." Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176, 63 S. Ct. 172, 173, 87 L. Ed. 165 (1942). In the instant case, however, plaintiff does not suggest that the non-revival provision was enacted out of hostility to civil-rights claims or that its application will adversely affect the rule of federal law in preventing abuses of power by those acting under color of state authority. Nor does he contend that the non-revival provision is unreasonable when applied to his state-law claims. Rather, the inconsistency complained of is simply that application of the provision deprives plaintiff of an opportunity to litigate his federal claims at this date. In Robertson v. Wegmann, 436 U.S. 584, 593, 98 S. Ct. 1991, 1997, 56 L. Ed. 2d 554 (1978), Justice Marshall made short shrift of a similar contention:

That a federal remedy should be available, however, does not mean that a § 1983 plaintiff . . . must be allowed to continue an action in disregard of the state law to which § 1988 refers us. A state statute cannot be considered "inconsistent" with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant. But § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby. *fn4"
Thus, since application of the non-revival provision is not inconsistent with federal law, this court is obliged to give the provision effect in ...

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