Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges.
SUR PETITION FOR REHEARING
The petition for rehearing filed by Appellees in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judges Adams, Weis, Garth and Hunter would grant rehearing in banc.
STATEMENT OF JUDGE ADAMS SUR DENIAL OF PETITION FOR REHEARING
The panel decides that the six-month limitations period of 42 Pa. Cons. Stat. Ann. § 5522(b)(1) (Purdon 1981) is inapplicable to actions brought under 42 U.S.C. § 1983, because six months is so brief as to be inconsistent with the policies of section 1983. This position is taken despite the panel's recognition that in section 1983 actions the federal courts must normally borrow the state limitations period governing analogous causes of action, and that, had the present action been brought "in state court under state law, it would have been subject to the six-month limitations period." 699 F.2d at 141.
In holding that the six-month period is too constricting, the panel breaks with the two other circuits that have decided this issue. In Burns v. Sullivan, 619 F.2d 99, 106-107 (1st Cir. 1980), the court held that a six-month limitation is reasonable in section 1983 cases, and Warren v. Norman Realty Co., 513 F.2d 730, 733-35 (8th Cir. 1975), applied a 180 day limit of a Nebraska statute of limitations to a federal action under 42 U.S.C. § 1982.*fn1
As the panel notes, this Court is not authorized to cure lacunae in federal law by borrowing state statutes of limitations that frustrate national policies. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 367, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977). But in its most recent declaration on the subject, the Supreme Court warned that state statutes of limitations are normally binding in section 1983 cases:
In § 1983 actions . . . a state statute of limitations and the coordinate tolling rules are more than a technical obstacle to be circumvented if possible. In most cases, they are binding rules of law. In 42 U.S.C. § 1988, Congress "quite clearly instructs [federal courts] to refer to state statutes" when federal law provides no rule of decision for actions brought under § 1983. Robertson v. Wegmann, 436 U.S. 584, 56 L. Ed. 2d 554, 98 S. Ct. 1991 (1978). See also Carlson v. Green, [446 U.S. 14, 22 n.10, 64 L. Ed. 2d 15, 100 S. Ct. 1468 n.10 (1980)]. As we held in Robertson, by its terms, § 1988 authorizes federal courts to disregard an otherwise applicable state rule of law only if the state law is "inconsistent with the Constitution and laws of the United States."
Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 484-85, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980) (footnote omitted).
The Supreme Court in Tomanio took occasion to reiterate its emphasis on "the importance of the policies underlying state statutes of limitations." Id. at 487. To gauge whether state limitations statutes are consistent with the policies underlying section 1983, Tomanio instructed the federal courts that "the state and federal policies which ...