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A. J. CUNNINGHAM PACKING CORP. v. CONGRESS FIN. CO

May 28, 1985

A. J. CUNNINGHAM PACKING CORPORATION, CHICAGO DRESSED BEEF CO., INC., CONTINENTAL FOOD PRODUCTS, INC., and FLORENCE BEEF COMPANY, Plaintiffs,
v.
CONGRESS FINANCIAL CORPORATION and PHILADELPHIA NATIONAL BANK, Defendants; PIERCE TRADING COMPANY, Plaintiff, v. CONGRESS FINANCIAL CORPORATION and PHILADELPHIA NATIONAL BANK, Defendants



The opinion of the court was delivered by: SIMMONS

I.

 Plaintiffs brought these above-captioned actions against the Defendants Congress Financial Corporation and Philadelphia National Bank on August 29, 1984, alleging violations of RICO [Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.] common law deceit, and misrepresentation. Plaintiffs claim that between September, 1979, and January, 1981, Defendants made false representations to Plaintiffs concerning the financial strength and capitalization of American International Meat Importers, Inc. (AIMI), and a related company, American International Meat Co. (AIMC), which misrepresentations the Plaintiffs allege that they relied upon in selling meat to AIMI on a credit basis.

 Defendants have moved for summary judgment, contending that the above-captioned cases are time-barred by the two year limitations period in Pennsylvania applicable to common law fraud. It is the Defendants' contention that by January 27, 1981, the date bankruptcy petitions were filed by AIMI, the Plaintiffs knew, or should have known, of the alleged misrepresentations regarding the financial condition of AIMI, and that the Plaintiffs thereafter had until January 27, 1983 to file a timely complaint.

 Oral argument has been held on all of the motions for summary judgment, briefs have been submitted in support of the respective positions, and the matter is now ready for decision by this Court. The Defendants contend that at the relevant time, the period of limitations for common law fraud in Pennsylvania was two years; Plaintiffs, however, claim that the appropriate limitations period at the relevant time was six years. Plaintiffs concede that they were on notice of the facts giving rise to their claim for relief more than two, but less than six years before the above-captioned cases were commenced.

 II.

 It is uncontested that there is no specified period of limitations for cases brought under RICO, and it is likewise uncontested that in cases brought under RICO, the common law fraud action is the most analogous state cause of action appropriate to effectuate the remedial purposes of RICO. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc). Plaintiffs acknowledge that there is no dispute as to any fact material to the resolution of Defendants' motions, and the only matter to be resolved by this Court is the question of law of whether at the relevant time, the two year or six year limitations period applied to actions for common law fraud in Pennsylvania.

 The Pennsylvania Supreme Court has never addressed this question of the applicable limitations period for common law fraud in Pennsylvania subsequent to the enactment of the 1976 Judicial Code, so this Court must predict how the Pennsylvania Supreme Court would decide the matter, and in so predicting, this Court must accord the decisional law of lower state courts "proper regard" but not conclusive effect. Safeco Insurance Company of America v. Wetherill, 622 F.3d 685, 688 (3d Cir. 1980); McKenna v. Ortho Pharmaceutical Corporation, 622 F.2d 657, 661 (3d Cir. 1980).

 Relevant to the consideration of the above-captioned cases are certain statutory provisions: 12 P.S. § 31, 42 Pa.C.S.A. § 5524(3), 42 Pa.C.S.A. § 5524(3) as amended, and 42 Pa.C.S.A. § 5527.

 A two year limitations period is provided in 42 Pa.C.S.A. § 5524 (Purdon 1981), as follows:

 
The following actions and proceedings must be commenced within two years:
 
. . .
 
(3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof.

 A six year limitations period is set forth in 42 Pa.C.S.A. § 5527 (Purdon 1981), which contains a residual provision:

 
The following actions and proceedings must be commenced within six years:
 
. . .
 
(6) Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation ...

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