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NATHANIEL MOORE v. RALPH B. MCCOMSEY (05/06/83)

filed: May 6, 1983.

NATHANIEL MOORE, APPELLANT,
v.
RALPH B. MCCOMSEY, JR., JAN B. WALTERS, HERMAN SIMMS, LIEUTENANT MARTIN, LAWRENCE RUGGIANO AND THOMAS HARTING, APPELLEES



No. 2708 Philadelphia, 1980 Appeal from Order of the Court of Common Pleas, Civil Division, of Lancaster County, No. 273 March Term, 1979.

COUNSEL

Nathaniel Moore, in propria persona.

John P. Hohenadel, Lancaster, for appellees.

Brosky, Wieand and Beck, JJ. Brosky, J., files a concurring opinion.

Author: Wieand

[ 313 Pa. Super. Page 266]

Nathaniel Moore was arrested on September 16, 1972 and charged with the fatal shooting of Edward Bruce Wiker. He was tried by jury and found guilty of murder in the first degree and was sentenced to imprisonment for life. The judgment of sentence was affirmed by the Supreme Court on July 7, 1975. See: Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975).

On February 8, 1979, Moore brought a civil action in trespass to recover damages against the public defenders

[ 313 Pa. Super. Page 267]

    assigned to represent him, alleging that their negligence had caused his conviction and incarceration.*fn1 His complaint also contained a claim against the police officers who had placed him under arrest.*fn2 Although his pro se complaint was inartfully drafted, we are able to discern therefrom causes of action for (1) civil rights violations under 42 U.S.C. § 1983, (2) false arrest, (3) false imprisonment, (4) assault and battery, and (5) malicious abuse of process. After the pleadings had been closed, the trial court granted all defendants' motions for summary judgment on grounds that Moore's alleged causes of action were barred by the statute of limitations contained in the Judicial Code at 42 Pa.C.S. § 5524. Moore appealed. We affirm.

[ 313 Pa. Super. Page 268]

"Under Pa.R.C.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party's well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him . . . . Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is further circumscribed by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto." Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178-179 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967) (footnote and citations omitted). Accord: Karns v. Tony Vitale Fireworks Page 268} Corporation, 436 Pa. 181, 184, 259 A.2d 687, 688 (1969); Del Quadro v. City of Philadelphia, 293 Pa. Super. 173, 176-177, 437 A.2d 1262, 1263 (1981); Balush v. Borough of Norristown, 292 Pa. Super. 416, 419, 437 A.2d 453, 454 (1981); Nevling v. Natoli, 290 Pa. Super. 174, 177, 434 A.2d 187, 188 (1981); Zelik v. The Daily News Publishing Co., 288 Pa. Super. 277, 279, 431 A.2d 1046, 1047 (1981); Puleo v. Broad Street Hospital, 267 Pa. Super. 581, 584, 407 A.2d 394, 396 (1979).

The Judicial Code, at 42 Pa.C.S. § 5524(1) and (2), establishes two year limitations for the commencement of actions "for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process" and "to recover damages for injuries to the person . . . caused by the . . . negligence of another."

Appellant's alleged causes of action against the arresting police officers accrued when he was arrested on September 16, 1972. The actions were barred after two years had elapsed. The present action, commenced more than six years after causes of action arose, was untimely, and the trial court ...


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