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IN RE CITY OF PHILADELPHIA

February 1, 1989

IN RE CITY OF PHILADELPHIA; MICHAEL MOSES WARD, a minor, by his parent and natural guardian, Andino R. Ward, and Andino R. Ward, Individually
v.
CITY OF PHILADELPHIA, et al.


Louis H. Pollak, United States District Judge.


The opinion of the court was delivered by: POLLAK

LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE

 On May 11, 1987, plaintiffs brought this suit under 42 U.S.C. § 1983 and Pennsylvania common law against the City of Philadelphia ("City"), five present and former city officials, Mayor Wilson Goode, Leo A. Brooks, Gregore J. Sambor, and William Richmond ("individual defendants"), the Philadelphia County Children and Youth Agency, and the School District of Philadelphia. Plaintiff Michael Moses Ward alleges that the defendants' failure to protect him from the "serious physical neglect" of his living situation at the MOVE residence, prior to the destruction of the MOVE home on May 13, 1985, violated his constitutional right to due process under the Fourteenth Amendment of the United States Constitution as well as his rights under Pennsylvania common law. Plaintiffs' Complaint, para. 25, 45. Michael Ward also seeks damages for severe injuries allegedly caused by the defendants' bombing of the MOVE house on May 13, 1985. Plaintiff Andino R. Ward, Michael's father, seeks damages for the personal and medical costs associated with his son's injuries.

 This matter is presently before the court on defendants' motion to dismiss all or part of plaintiffs' claims on limitations grounds. The defendants also seek dismissal of plaintiffs' claims on the basis of plaintiffs' alleged noncompliance with Pennsylvania's notice-of-claim provision, 42 Pa. C.S.A. § 5522(a). Finally, defendants seek dismissal of plaintiffs' punitive damages claim against the City.

 This motion was submitted to Magistrate William F. Hall, Jr., for the preparation of a Report and Recommendation. On May 13, 1988, Magistrate Hall recommended that the defendants' motion be denied in all respects. Defendants subsequently filed objections to the Report and Recommendation on June 10, 1988.

 Magistrate Hall's Report and Recommendations

 Magistrate Hall concluded as follows: (1) plaintiffs' § 1983 claims are governed by Pennsylvania's two-year personal injury limitations period; (2) plaintiffs' pendent state claims are governed by Pennsylvania's two-year limitations provision, 42 Pa. C.S.A. § 5524; (3) Pennsylvania's notice-of-claim provision, 42 Pa. C.S.A. § 5522(a), does not apply to plaintiffs' federal claims; (4) defendants had actual or constructive notice of the pendent state claims relating to the events of May 13, 1985, thus satisfying the notice-of-claim provision, 42 Pa. C.S.A. § 5522(a); (5) plaintiffs sufficiently allege, with respect to their state law claims, that defendants had actual or constructive notice of events occurring prior to May 13, 1985 so as to defeat defendants' motion to dismiss pursuant to the notice-of-claim provision; (6) plaintiffs' claims based on tortious conduct occurring more than two years prior to filing are not barred by the two-year limitation period because plaintiffs sufficiently allege continuous wrongful conduct which would toll the running of the limitation period; (7) Michael Ward's claims based on events prior to the effective date of Pennsylvania's minor's tolling statute, 42 Pa. C.S.A. § 5533(b), are not time-barred because the claims did not accrue until after the effective date of that statute; and, (8) resolution of defendants' motion to dismiss plaintiffs' claim for punitive damages against the City under state law should await further development of the record.

 Defendants' Objections

 Defendants object to three of Magistrate Hall's recommendations. First, defendants contend that plaintiffs' claims arising more than two years before filing are untimely. Second, defendants argue that plaintiffs' state law claims against the City for actions occurring prior to May 13, 1985 should be dismissed based on plaintiffs' failure to file notice of their suit within six months of the accrual of their claims, in accordance with 42 Pa. C.S.A. § 5522(a). Third, defendants maintain that plaintiffs' state law claims against the individual defendants based on the defendants' failure to intervene on Michael Ward's behalf are barred by the six-month limitations period governing actions against government officials, 42 Pa. C.S.A. § 5522(b). I will discuss these objections in turn.

 I. Plaintiffs' Claims Based on Events Occurring More than Two Years Prior to Suit

 Magistrate Hall denied defendants' limitations challenge to these claims based on plaintiffs' allegations of defendants' "continuing wrongful conduct." He found that no single incident on the part of the defendants could be regarded as a cause of significant harm to plaintiffs. In such a circumstance, Magistrate Hall concluded, the limitations period on plaintiffs claims did not begin to run until the last tortious act, which occurred within two years of plaintiffs' filing.

 Defendants contend that continued wrongful conduct could not toll the running of the limitations period governing plaintiffs' claims beyond the time that plaintiffs became aware of the facts underlying their claims. Defendants further maintain that Andino Ward "had sufficient knowledge, or should have had knowledge, of the facts surround [his] claim" more than two years before the filing of plaintiffs' complaint, and that Michael Ward should be charged with "similar knowledge" of the facts underlying his claim prior to the effective date of Pennsylvania's minor's tolling statute. Defendants' Objections, at 9-10. In, defendants' view, the limitations period on all of plaintiffs' claims, except those arising out of destruction of the MOVE home, began to run more than two years before plaintiffs filed suit.

 The accrual of plaintiffs' § 1983 claims is governed by federal law. Rose v. Bartle, 692 F. Supp. 521, 529 (E.D. Pa. 1988). A cause of action accrues under federal law "when the plaintiff becomes aware, or should have become aware, of both the fact of injury and its causal connection to the defendant, although the plaintiff need not know that the defendant's conduct is tortious or unlawful." Sowers v. Bradford Area School District, 694 F. Supp. 125, 136 (W.D. Pa. 1988) (citing United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979)); see also Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982).

  This "discovery rule" applies to circumstances in which a plaintiff is a victim of continuous wrongful conduct. Kichline v. Consolidated Railroad Corporation, 800 F.2d 356, 360 (3d Cir. 1986) ("continuing conduct of defendant will not stop the ticking of the limitations clock begun when plaintiff obtained requisite information"). Thus, once an employee has or should have discovered his injury and its cause, the limitations period begins to run ...


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