Plaintiffs allege that their injuries resulted from defendants' breach of their duty to protect Michael Ward. A personal injury action based on tortious nonfeasance falls squarely within Pennsylvania's two-year limitations period. See, e.g., Bowser v. Guttendorf, 373 Pa. Super. 402, 541 A.2d 377 (1988) (applying § 5524's two-year limitation period to a suit brought by a minor based on her foster mother's failure to prevent her foster father from sexually molesting her).
Defendants' contention that "this is not a typical personal injury claim" because it involves city officials, rather than private parties, is unavailing. Defendants' Objections, at 17. The fact that the alleged duty of care in this case arose by virtue of the individual defendants' status as government officials does not alter the fact that a suit of this general character is governed by the limitations period of § 5524(2). The central question is not, as the defendants suggest, whether a cause of action is in some important sense related to the defendant's status as a public official. Rather, the decision to apply the residual limitations period depends on whether another limitations period in the subchapter is applicable to the suit, notwithstanding the official status of the defendant. Cf. Clyde v. Thornburgh, 533 F. Supp. 279, 288 (E.D. Pa. 1982) (stating that "§ 5522(b)(1) represents the legislature's considered judgment that actions against public officials which are so uncommon that they do not fall within the other specific limitations periods, should be brought within six months"). Because this suit constitutes "an action to recover damages for injuries . . . caused by . . . neglect" within the meaning of § 5524(2), section 5522(b)'s residual six-month limitation period is not applicable. See Salaneck v. State Trooper Eric Olena, 558 F. Supp. 370 (E.D. Pa. 1983) (holding that § 5522(b) is a residual limitations period not to be applied to cases which are subject to other limitations periods). Accordingly, defendants' motion to dismiss plaintiffs' state law claims against the individual defendants will be denied.
Defendants have not objected to Magistrate Hall's recommended disposition of the other issues raised in defendants' motion.
I am satisfied that Magistrate Hall's recommendations as to these issues should be adopted.
Plaintiffs' § 1983 claims are not governed by § 5522(b)'s six-month residual limitations period. Knoll v. Springfield Township School District, 763 F.2d 584 (3d Cir. 1985) (Pennsylvania's two-year limitations period governs § 1983 claims). Nor does plaintiffs' failure to comply with Pennsylvania's notice-of-claim provision bar plaintiffs' federal claims. See Brown v. United States, 239 U.S. App. D.C. 345, 742 F.2d 1498 (D.C. Cir. 1984) (holding that state notice-of-claim provision is not applicable to federal cause of action unless "deficiency" exists in federal adjudicatory scheme), cert. denied sub nom 471 U.S. 1073, 85 L. Ed. 2d 509, 105 S. Ct. 2153 (1985). Accordingly, defendants' motion to dismiss on the ground that plaintiffs' federal claims are untimely, or that they are barred as a result of plaintiffs' noncompliance with Pennsylvania's notice-of-claim provision, will be denied.
These rulings are reflected in an accompanying Order.
ORDER - February 1, 1989, Filed
After consideration of the Report and Recommendation of William F. Hall, Jr., United States Magistrate, filed on May 13, 1988, and defendants' objections thereto, I hereby adopt Magistrate Hall's recommendations as followed:
1. Defendants' motion to dismiss plaintiffs' federal and state claims on limitations grounds is hereby DENIED; this holding is without prejudice to defendants' right to challenge the timeliness of plaintiffs' claims if further development of the record so warrants;
2. Defendants' motion to dismiss plaintiffs' federal claims based on plaintiffs' noncompliance with Pennsylvania's notice-of-claim provision, 42 Pa. C.S.A. § 5522(a) is hereby DENIED;
3. Defendants' motion to dismiss plaintiffs' state claims based on plaintiffs' noncompliance with Pennsylvania's notice-of-claim provision is hereby DENIED; this holding is without prejudice to defendants' right to renew their challenge under § 5522(a) if further development of the record so warrants;
4. Defendants' motion to dismiss plaintiffs' state law claims against the individual defendants as untimely is hereby DENIED;
5. Defendants' motion to dismiss plaintiffs' punitive damages claims is hereby DENIED without prejudice.
FEBRUARY 1, 1988