commenced on or after the effective date of this ordinance."
Plaintiff argues that his cause of action against the City of Philadelphia and the police officers accrued and was vested on the day he was shot by the defendant police officers on August 28, 1989, and not when his complaint was filed on January 22, 1991. He further states that the laws in effect at that point in time are the laws that govern what legal determinations will be made on that cause of action.
It is asserted that the Pennsylvania Supreme Court decision, Gibson v. Commonwealth of Pennsylvania, et al., 490 Pa. 156, 415 A.2d 80 (1980), is controlling. Plaintiff contends that the retroactive implementation of Ordinance 1057 to an already accrued cause of action is unconstitutional under Article I, Section II of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution. For the reasons which follow, I agree that Gibson is the current controlling law in Pennsylvania and that Ordinance 1057 cannot be applied retroactively to the plaintiff's case.
Gibson addressed the issue of whether it was constitutional to apply Act 152, promulgated by the Pennsylvania legislature in 1978 creating for the first time in Pennsylvania statutory sovereign immunity to cases which became actionable prior to the Act. In Gibson, plaintiff's injuries occurred on June 20, 1977, as a result of the Commonwealth's negligence. Plaintiff instituted suit after Mayle v. Pennsylvania Department of Highways, supra, which abolished sovereign immunity.
Gibson held that a tort cause of action generally accrues on the date of the accident or injury. See Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960); Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 16 A.2d 534 (1940), and that it is well-settled that the legislature may not extinguish a right of action which has already accrued to a claimant. Id. at 83. Thus, Gibson determined that the legislative act creating governmental immunity may not constitutionally govern such actions and that elimination of plaintiff's right' of action that has already accrued and become vested would violate Article I, Section II of the Pennsylvania Constitution,
and the Fourteenth Amendment of the United States Constitution. Id. at 83. The court stated that fully applying the Mayle decision, "we conclude that the appellant's claims accrued before the promulgation of Act 152, and, therefore, may not be extinguished by the Act." Gibson added that though the date of a complaint's institution is relevant to the tolling of the statute of limitations, it has no place in the determination of appellant's substantive rights. Id. at 85.
In the instant case, under Gibson, plaintiff's cause of action accrued and vested on the date he was injured on August 28, 1989. At that time, Chapter 21-701 of the Philadelphia Code was the applicable law whereby the City waived immunity in police matters. Also, under Gibson, it is not relevant when the plaintiff filed his complaint which, in this case, was done after ordinance 1057 was passed repealing § 21-700 and declared retroactive as of December 4, 1990. The relevant issue is when plaintiff's action accrued and. vested and in this case it vested prior to the repeal of § 21-701. Accordingly, under Gibson, the legislature cannot extinguish a cause of action that has already accrued, and Ordinance 1057 cannot be applied retroactively to the plaintiff's negligence cause of action.
He may proceed with his negligence claim against the City.
Again, citing Fed. R. Civ. P. 56(c), the moving party for summary judgment has the burden of showing that there is no genuine issue as to any material facts, with all doubts being resolved against the moving party. See Drexel v. Union Prescription, Inc., supra. In this case, the defendants have not met their burden as to either of their arguments in support of their summary judgment motion since "genuine issues" as to material facts exist with all doubts in this case being resolved against the defendants as the moving party. For all the foregoing reasons, the defendants' Motion for Partial Summary Judgment must be denied. An appropriate order has already been issued.
TULLIO GENE LEOMPORRA
UNITED STATES MAGISTRATE JUDGE