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April 22, 1992


The opinion of the court was delivered by: WILLIAM J. NEALON

 On May 31, 1991, the plaintiff, while on probation, filed the above 42 U.S.C. § 1983 civil rights complaint alleging a malicious prosecution, an abuse of process and both procedural and substantive due process violations caused by the defendant district attorney's participation in a probation revocation proceeding. The defendant has moved for summary judgment asserting that the plaintiff's action is barred by the statute of limitations; the defendant is protected from suit by qualified immunity; the plaintiff has failed to adequately support his claims of malicious prosecution and abuse of process; and, finally, the record fails to establish any procedural or substantive due process violations. Upon a careful review of the present record, the court concludes that, while the action is not time-barred as the defendant suggests, the defendant is entitled to qualified immunity, and, in the alternative, the plaintiff cannot adequately support his claims. Thus, summary judgment in favor of the defendant is appropriate.


 The following facts are undisputed unless otherwise noted. Robert E. Felker (Felker) was convicted in a Pennsylvania state court on March 17, 1988, of offenses involving the hit-and-run death of a pedestrian and reckless driving. He was sentenced on July 20, 1988, to pay a fine of $ 2,500.00, to perform 250 hours of community service, and placed on probation for one year. Robert Angradi (Angradi) was Felker's assigned probation officer. On July 21, 1988, Felker, at the request of Angradi, signed a form acknowledging the Rules and Regulations of the Probation and Parole Departments (Rules and Regulations form).

 Felker appealed his conviction to the Pennsylvania Superior Court and sought a stay of sentence from the trial court. The trial court denied the stay. On September 29, 1988, while Felker's appeal was pending, Angradi directed Felker, in writing, to contact him by October 3, 1988, to sign the Rules and Regulations form *fn1" and to commence his community service. Angradi advised Felker that any failure to comply with the request would result in Angradi's filing a petition for violation for probation. In response, Felker's counsel requested the Superior Court to stay his sentence until the court resolved his appeal. On October 13, 1988, the court granted the stay.

 On March 20, 1989, the Superior Court denied Felker's appeal. The plaintiff then filed a petition for reargument on April 3, 1989. On April 4 and 13, 1989, Angradi again apprised Felker of his responsibility to sign the Rules and Regulations form and repeated his threat to file a petition for violation of probation. The plaintiff's counsel informed Angradi, by letter dated April 17, 1989, of the pending petition for reargument and, while not mentioning that the appeal constituted an automatic stay, advised Angradi to contact the Monroe County District Attorney's Office. However, there was no communication attempted between plaintiff's counsel and the district attorney's office.

 The defendant, E. David Christine (Christine), had been the District Attorney for Monroe County since January 5, 1988, and, prior to his election, had served as an assistant district attorney since 1982. He was contacted by Angradi concerning the propriety of filing the petition and on May 2, 1989, after receiving the defendant's approval, Angradi filed a petition to show cause why probation should not be revoked. The basis for the petition was the plaintiff's alleged failure to sign the Rules and Regulations form as requested by Angradi. On May 31, 1989, before the hearing commenced, Christine's office stated to the court that, because of the pending appeal, it could not go forward with the petition, and the court dismissed the petition.

 On October 1, 1990, Felker filed this complaint pursuant to 42 U.S.C. § 1983. See document 1 of record. Felker alleged that Christine's actions in prosecuting the petition for revocation of probation constituted a malicious prosecution, an abuse of process and violations of both procedural and substantive due process. The defendant moved for summary judgment asserting that the defendant was entitled to qualified immunity for his actions pertaining to the hearing. At a December 17, 1991, conference in chambers, the court directed the parties to rebrief the issues to include the statute of limitations, the elements of malicious prosecution and abuse of process and, finally, the alleged procedural or substantive due process violations. *fn2" The defendant timely complied with the court's directive and filed a second motion for summary judgment. See documents 16-18 of record. The plaintiff has replied in opposition, see document 19 of record, and the motion is now ripe for disposition. The court will address the issues seriatim.


 "In order to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Felton v. Southeastern Pennsylvania Transportation Authority, No. 91-1195, slip op. at 3 (3rd Cir. Dec. 23, 1991) (citations omitted). In determining what is a genuine issue of material fact, the court "must look to the governing substantive law and what 'disputes over facts [would] affect the outcome of the suit' under that law." Cliffs-Neddrill Turnkey Int'l-Oranjestad v. M/T Rich Duke, No. 91-3182, slip op. at 9 (3rd Cir. Oct. 17, 1991) (citation omitted). The evidence submitted must be viewed in a light most favorable to the non-moving party, O'Donnell v. United States, 891 F.2d 1079, 1082 (3rd Cir. 1989) (citation omitted), and "any 'unexplained gaps' in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment." Id. (citation omitted). In addition, the Supreme Court in Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), noted that the "'moving party is entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 322-23.


 To determine whether a claim of malicious prosecution, abuse of process or a claim of a deprivation of both procedural and substantive due process arising out of the same circumstances is time-barred, a district court must look to the analogous state law statute of limitations. Rohena v. Dept. of Treasury, 665 F.Supp. 102 (D.Puerto Rico 1987). Pennsylvania would apply a two-year statute of limitations to the present action. See 42 Pa.C.S.A. § 5524 (Purdon Supp. 1989). However, "the issue of when a cause of action accrues is a matter of federal law." Rohena, 665 F.Supp. at 102.

 In Deary v. Three Un-Named Police Officers, 746 F.2d 185 (1984), the Third Circuit Court of Appeals held that a cause of action for a claim of malicious prosecution accrues when the criminal proceedings are dismissed. Id. at 194. Accord Rose v. Bartle, 871 F.2d 331, 352 (3rd Cir. 1989). Similarly, in a case such as here, the date that the proceedings were dismissed started the running of the two-year limitations period for the plaintiff's other claims. See generally Deary, 746 F.2d at 197 n.16.

 In applying the law to the present case, it is clear that the plaintiff's claims accrued on May 31, 1989, the date that the petition for revocation was dismissed by the trial court. On that date the petition for revocation was decided in the plaintiff's favor, see discussion ante on that element of the tort, and the last element of the tort, allegedly, had been completed. Thus, his claims are not time-barred as the defendant suggests and the court will address the remaining issues.


 The defendant, as District Attorney for Monroe County, has asserted the affirmative defense of qualified immunity. It cannot be disputed that a state prosecutor is absolutely immune from liability under § 1983 for his role in "initiating a prosecution and in presenting the State's case," see Imbler v. Pachtman, 424 U.S. 409, 431, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), insofar as his conduct is "intimately associated with the judicial phase of the criminal process." Id. at 430. However, a state prosecutor's immunity from suit is limited in situations where he gives advice on the propriety of investigative police conduct. See Burns v. Reed, 114 L. Ed. 2d 547, 111 S. Ct. 1934, 1944-45. In Burns, the Supreme Court ...

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