statute of limitations would begin to run on the date of the meeting in which the Dorney executives informed LARA that auto racing at Dorney Park would be terminated pursuant to an agreement with the Township. The record reflects that this meeting occurred sometime before October 23, 1986, possibly between the fourth and eleventh of October. Therefore, according to the Township defendants, LARA's complaint, filed on October 21, 1988, is barred by the two year statute of limitations.
It is uncontested that on October 23, 1986 Dorney provided written notice to LARA that auto racing at Dorney Park would be terminated "effective November 1, 1986." Moreover, the first race of the upcoming racing season (the first race which LARA was prohibited from holding) was scheduled to occur on April 18, 1987. LARA argues that either November 1, 1986 or April 18, 1987 is the date on which the statute of limitations began to accrue.
LARA also encountered a great deal of resistance when attempting to discover the content of the settlement agreement between Dorney and the Township. In fact, the Township defendants continually denied that the termination of racing at Dorney Park was a matter to be discussed with them; instead, the Township relied upon the secrecy clause of the agreement and referred LARA back to Dorney for an explanation. This effectively denied LARA an opportunity to confirm the existence of the agreement and, more importantly, the actual reason why auto racing was being terminated. LARA argues that this conduct by the Township defendants, whether intentional or unintentional, concealed the events and circumstances underlying the cause of action, and, therefore, tolled the statute of limitations.
A cause of action does not arise until the occurrence of the final significant event necessary to sustain the cause of action. See Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18 (3d Cir. 1966), cert. denied, 387 U.S. 930, 87 S. Ct. 2053, 18 L. Ed. 2d 992 (1967). Ordinarily, this event is the time at which the putative plaintiff is injured; however, the plaintiff must have known of his or her injury and its cause. See Zeleznik v. United States, 770 F.2d 20, 22-23 (3d Cir. 1985), cert. denied, 475 U.S. 1108, 106 S. Ct. 1513, 89 L. Ed. 2d 913 (1986).
When a federal court borrows, as in this case, a State limitations of action period, that State's exceptions are also followed unless the policies underlying the federal cause of action are undermined. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464-65, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975); Swietlowich v. Bucks County, 610 F.2d 1157, 1162 (3d Cir. 1979). Under Pennsylvania law, in cases involving fraudulent concealment, the limitations period does not begin to commence until the time of the discovery or the date on which the plaintiff through the use of reasonable diligence should have discovered the cause of action. Swietlowich, 610 F.2d at 1162. The fraud involved need not include an intent to deceive potential claimants; unintentional deception will suffice. It is the effect on the plaintiff, not the intent of the defendant, that controls. Id. (citing Nesbitt v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473, 477 (1964)).
As previously stated, to establish a claim under § 1983 a plaintiff must show: (1) the conduct complained of was committed by a person acting under the color of state law and (2) the conduct deprived the claimant of rights, privileges or immunities guaranteed by the Constitution or the laws of the United States. See Robb v. Philadelphia, 733 F.2d at 535. More specifically,
A plaintiff . . . who brings a § 1983 suit based on a violation of the due process clause must allege and prove five things: (1) that he was deprived of a protected liberty or property interest; (2) that this deprivation was without due process; (3) that the defendant subjected the plaintiff, or caused the plaintiff to be subjected to, this deprivation without due process; (4) that the defendant was acting under the color of state law; and (5) that the plaintiff suffered injury as a result of the deprivation without due process.