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BUSKIRK v. SEIPLE

February 16, 1983

RUTH BUSKIRK and MARIAN BUSKIRK
v.
ROY SEIPLE, AMAZON LAHR, RICHARD HAGERMAN, GLENN ENGLISH, MOORE TOWNSHIP, BUSHKILL TOWNSHIP, UPPER NAZARETH TOWNSHIP and TATAMY BOROUGH



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 A frequently alleged series of events, illegal arrests and deliberate beatings, underlie plaintiffs' claims against various individual police officers and identified municipalities. *fn1" According to the complaint, Woodrow Buskirk, while driving his car in the early morning hours of October 4, 1979, suffered electrical problems which required him to pull off the road. Shortly thereafter, defendant Police Officer Roy Seiple pulled alongside of Buskirk's vehicle, required him to produce his driver's license and unsuccessfully urged him to sign an equipment repair order. Notwithstanding Seiple's knowledge that he lacked authority to force Buskirk to sign the repair order, he nevertheless pressed him to do so. Plaintiffs Ruth and Marian Buskirk subsequently arrived at the scene. When Officer Seiple, now supported by back-up units, unlawfully beat and took Woodrow Buskirk *fn2" into custody, Ruth and Marian interjected themselves into the fracas and were themselves malevolently treated by defendants and eventually charged with various offenses. In considering defendants' motion to dismiss, we are obligated to accept and credit these factual allegations. Walker Processing Equipment Co. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965); Frederiksen v. Poloway, 637 F.2d 1147, 1150 n. 1 (7th Cir.), cert. denied, 451 U.S. 1017, 69 L. Ed. 2d 389, 101 S. Ct. 3006 (1981); General Public Utilities Corp. v. United States, 551 F. Supp. 521, 524 n. 4 (E.D. Pa. 1982). Plaintiffs' six-count complaint primarily asserts claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Fourth, Eighth and Fourteenth Amendments. Additionally, plaintiffs have appended various state tort claims to their federal ones.

 Defendants, moving to dismiss, assert that the applicable statute of limitations precludes any adjudication of the complaint, that plaintiffs have failed to state a claim under § 1983, that Count II improperly purports to predicate municipal liability upon the theory of respondeat superior and that the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541 et seq., effectively immunizes them from suit. Finally, defendants argue that they may not be subjected to a claim for punitive damages. We now address these issues.

 Plaintiffs' claims against defendants accrued on October 4, 1979. Suit was instituted two years and one day later, on October 5, 1981. The operative facts underlying the federal claim are analogous to the state tort of false arrest and imprisonment and assault and battery. Pennsylvania requires that such claims be brought within two years. Haefner v. Lancaster County, 520 F. Supp. 131, 132 (E.D. Pa. 1981), aff'd, 681 F.2d 806 (3d Cir. 1982); Salaneck v. State Trooper Eric Olena, 558 F. Supp. 370 (E.D. Pa. 1983); 42 Pa. C.S.A. § 5524(1). Fed. R. Civ. P. 6(a), which governs the resolution of this issue, specifically provides that "day of the act . . . from which the designated period of time begins to run shall not be included" in determining whether suit was brought in a timely manner. Accordingly, October 5, 1979, the day after the complained of conduct occurred, is the first day which we consider in determining whether suit was filed within the prescribed time. Since suit was instituted on October 5, 1981, we conclude that this action was brought within the two-year period and is not time-barred.

 The individual defendants also argue that plaintiffs have failed to state a claim under § 1983 because when plaintiffs were arrested they, defendants, had probable cause and that the arguable use of some force to effectuate the valid arrests was privileged and not excessive. Hence, the individual defendants argue that Count I should be dismissed.

 We begin our analysis of this issue with the observation that state actors who make an arrest incur no § 1983 liability when they act in good faith and with probable cause, Pierson v. Ray, 386 U.S. 547, 555, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967) or pursuant to a valid arrest warrant. Baker v. McCollan, 443 U.S. 137, 143-44, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Druckenmiller v. United States, 548 F. Supp. 193, 194 (E.D. Pa. 1982). In specifically addressing this issue, Chief Justice Warren observed that a

 
policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.

 Pierson v. Ray, 386 U.S. at 555.

 Alleging that Ruth Buskirk "positioned herself between [Woodrow Buskirk] and the [arresting] officers" as the defendants were arresting Woodrow, the complaint itself may establish probable cause for Ruth's arrest. The arrest is, however, nevertheless actionable because it was purportedly accomplished with excessive force. For example, the complaint alleges that Ruth Buskirk was "kicked at, hit, pushed [and] gabbed [sic]" by defendants. Assuming that defendants had probable cause to arrest Ruth Buskirk, they were not entitled to do so with excessive force. Clark v. Ziedonis, 513 F.2d 79 (7th Cir. 1974); Everett v. City of Chester, 391 F. Supp. 26 (E.D. Pa. 1975).

 We also conclude that plaintiff Marian Buskirk has stated a claim. She complains that she was "violently pulled" from an automobile notwithstanding the fact that she was merely an observer of the events which transpired and did not attempt to impede the arrest of Woodrow Buskirk. As such, in the current procedural posture, Marian Buskirk's arrest was arguably accomplished with excessive force and lacked probable cause. It is beyond peradventure that such an arrest states a colorable claim under § 1983. Reeves v. City of Jackson, 608 F.2d 644, 650 (5th Cir. 1979).

 The existence of Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 *fn3" et seq., (Tort Claims Act), does not alter this conclusion. The Tort Claims Act, passed in response to Ayala v. Philadelphia Board of Education, 453 Pa. 584, 305 A.2d 877 (1973), reinstated the immunity of the Commonwealth's political subdivisions and governmental agencies. See, Bliss v. Allentown Public Library, 534 F. Supp. 356 (E.D. Pa. 1982). Pennsylvania's legislation cannot, however, immunize state actors who abrogate federal constitutional or statutory rights; § 1983 specifically protects such rights. Maine v. Thiboutot, 448 U.S. 1, 4, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980). Although states remain generally free to develop their own tort and immunity law, they may not exempt state actors from liability for "wholly arbitrary or irrational" conduct. Martinez v. California, 444 U.S. 277, 282, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980). Specifically, states may not immunize official conduct which violates rights protected by § 1983. Id. at 284, n. 8. Sager v. City of Woodland Peak, 543 F. Supp. 282, 290-297 (D. Colo. 1982); Walker v. Rowe, 535 F. Supp. 55, 57 (N.D. Ill. 1982). See also, Commonwealth of Pennsylvania v. Porter, 659 F.2d 306, 314-15 (3d Cir. 1981) (en banc ; plurality opinion) (The Fourteenth Amendment is the "law of the land in all of Pennsylvania".) Similarly, state law may not "frustrate or interfere with the implementation of national policies". Knoll v. Springfield Township School District, 699 F.2d 137, 147 (3d Cir. 1983), quoting, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1967). Therefore, the immunities created by Pennsylvania's statutory scheme do not impinge upon plaintiffs' ability to maintain the § 1983 action. Cf., Holman v. Hilton, 542 F. Supp. 913, (D. N.J. 1982) (declaring unconstitutional a New Jersey immunity provision which prevented state prisoners from instituting suit against public entities.)

 Our conclusion that plaintiffs, in Count I, have stated a claim under § 1983, warrants dismissal of all claims asserted directly under the Fourth, Eighth and Fourteenth Amendments. To permit litigation on the constitutional claims would "merely duplicate the § 1983 cause of action" and amount to a "redundancy". No useful purpose would be served by "authoriz[ing multiple] indistinguishable causes of action, one statutory and [others] unconstitutional". Ali v. Cuyler, No. 80-2157 slip op. at 3 (E.D. Pa. January 7, 1983), quoting, Jones v. City of Philadelphia, 481 F. Supp. 1053, 1056 (E.D. Pa. 1979). Accord, DiGiovanni v. City of Philadelphia, 531 F. Supp. 141, 144 (E.D. Pa. 1982).

 Additional reasons prohibit adjudication of the Eighth Amendment claims. Rights secured by that amendment do not inure to the benefit of pre-trial detainees and arrestees. Patzig v. O'Neil, 577 F.2d 841, 847 (3d Cir. 1978); quoting, Hampton v. Holmsberg Prison Officials, 546 F.2d 1077, 1079 (3d Cir. 1976); Goodman v. Wagner, 553 F. Supp. 255 slip op. at 2-3 (E.D. Pa. 1982); Perkins v. Wagner, 513 F. Supp. 904, ...


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