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May 14, 1986

OFFICER GEORGE KIEFFER, Badge #1954 Individually and as a Police Officer and DOE, OFFICER JOHN, individually and as a Police Officer and ROE, OFFICER RICHARD, Individually and as a Police Officer and GOODE, W. WILSON, Individually and as Managing Director of the City of Philadelphia and GREEN, W. J., Individually and as Mayor of the City of Philadelphia and CITY OF PHILADELPHIA

The opinion of the court was delivered by: KATZ



 This case raises interesting questions about the application of the statute of limitations to a mentally ill plaintiff.

 Plaintiff claims that the defendant officers assaulted him by ordering their police dog to attack him. He contends that he was merely looking at books at a magazine stand nearby the entrance of the Suburban Train Station, at 16th Street and John F. Kennedy Boulevard, when the defendant officers first approached him. He alleges that the defendants subsequently ordered the canine attack when he attempted to exit the train station at 1600 Market Street.

 Defendants, in their motion for summary judgment, contend that this action is barred by the statute of limitations. The question is whether there is a genuine issue of fact material to the timeliness of the complaint.

 Although plaintiff's complaint alleges that these events transpired on December 22, 1983, defendants contend that they actually occurred on December 17, 1983. If defendants are correct, then plaintiff's suit is barred by the statute of limitations because it was initiated more than two years after the incident. Defendants submit police and hospital records pertaining to the incident in support of their argument. *fn2"

 Plaintiff makes three responses to defendants' motion for summary judgment. First, he contends that defendants waived the statute of limitations defense. However, I granted defendants leave to amend their answer to raise the statute of limitations defense. Second, plaintiff disputes that the incident occurred on December 17, 1983. Third, plaintiff argues that he labors under a mental incapacity which tolls the running of the statute of limitations.

 Plaintiff does not explain clearly the nature of the asserted mental incapacity. Plaintiff only asserts, without support of affidavits or other evidentiary material, the existence of a "defective mental personality," and "difficulty in remembering facts, dates and events." Plaintiff also asserts, again without support, that "part of his problem was caused and/or aggravated by the facts alleged to have happened to him. . . ."

 The hospital records attached as exhibits to defendants' motion for summary judgment clarify, to some extent, the nature of the mental incapacity of plaintiff. The records state: "the patient was noted to be either psychotic or under the influence of mind altering substances. He had had an admission . . . previously with a diagnosis of psychosis and he had been seen by Psychiatry. . . . The most probable diagnosis was schizophrenia, although schizo affective disorder could not be ruled out." See D. Ex. C-2.

 Pennsylvania therefore subscribes to a "hard rule [of limitations] as a matter of legislative policy." See Riddick v. Workmen's Compensation Appeal Board (the State Correctional Institution at Graterford), 92 Pa. Commw. 263, 499 A.2d 694, 696-97 (1985). Nonetheless, some cases are exceptions to the rule. These cases are instead treated under the "discovery rule." *fn3" This rule is "based upon the recognition that if a party, despite the exercise of diligence, cannot ascertain his injury, the statute of limitations should not run against his claim." Anthony v. Koppers Co., Inc., 284 Pa. Super. 81, 89, 425 A.2d 428, 432 (Pa. Super. Ct. 1980) (emphasis in original), rev'd, 496 Pa. 119, 436 A.2d 181 (1981) (holding discovery rule inapplicable to wrongful death and survival actions). It is a "judicially created rule generally applicable to all statutes of limitations and to all cases where the injury or its cause is not immediately evident." Id. at 95, 425 A.2d at 436.

 Statutes of limitations impose upon plaintiffs the general duty "to use all reasonable diligence to properly inform" themselves "of the facts and circumstances upon which the right of recovery is based and to institute the suit within the prescribed statutory period. . . ." See Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963) (citations omitted). Application of the discovery rule accordingly turns upon the reasonableness of the plaintiff's diligence in ascertaining the facts giving rise to the cause of action. See Gemignani v. Philadelphia Phillies National League Baseball Club, 287 F. Supp. 465, 467 (E.D. Pa. 1967); Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). Most applications of the discovery rule concern a plaintiff's inability to discover the injury, or cause of injury, at issue. See Anthony, 284 Pa. Super. 81, 425 A.2d 428 (citing examples of discovery rule cases); see also Pocono International Raceway, 503 Pa. at 85, 468 A.2d at 471 (describing plaintiff's diligence in learning of injury as "salient point"). Nonetheless, the general rule governing all statutes of limitations questions is one of "reasonable diligence;" therefore, the discovery rule logically applies to all facets of the plaintiff's timeliness in discovering a cause of action, including the determination of the date of injury. Cf. Bayless v. Philadelphia National League Club, 579 F.2d 37, 41 (3d Cir. 1978) (discovery rule applies to plaintiff's determination of what or who hurt him).

 It is therefore appropriate in this case to examine the reasonableness of Mr. Person's efforts to identify the date of his injuries. Although a mental disability cannot toll the statute of limitations, it is "among the many factors which can be weighed . . . in determining the time of discovery, insofar as that condition was caused by the defendant." See Greenberg v. McCabe, 453 F. Supp. 765 & n.1 (E.D. Pa. 1978), aff'd, 594 F.2d 854 (3d Cir.) cert. denied, 444 U.S. 840, 100 S. Ct. 78, 100 S. Ct. 79, 62 L. Ed. 2d 51 (1979). That is, mental disabilities caused by a defendant may be considered in evaluating the reasonableness of plaintiff's diligence. Id. at 768-69. This does not conflict with the general tort principle that reasonableness is measured with reference to objective standards, because "at issue is the objective effect of the defendant's [conduct] on discoverability by ...

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