The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
Plaintiff Jay C. Smith filed this section 1983 action
alleging the violation of his civil rights by defendant Joseph Wambaugh in connection with Smith's April, 1986 murder conviction. Plaintiff was convicted of murdering Philadelphia school teacher Susan Reinert and her two minor children, Michael and Karen Reinert, and was sentenced to death for those crimes. Commonwealth v. Pennsylvania v. Jay C. Smith, Crim. Nos. 1677, 1677(A) and 1677(B) (Dauphin Co.). Reinert's body was discovered in the trunk of her car parked in a hotel parking lot near Harrisburg, Pennsylvania on June 25, 1979. The bodies of her children were never found.
Smith's conviction was reversed on direct appeal to the Pennsylvania Supreme Court, Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (Pa. 1987), on evidentiary grounds unrelated to the alleged concealment of the rubber lifters
and his case remanded to the Dauphin County Court of Common Pleas for a new trial.
Smith's motion for dismissal, filed February 1, 1990, was denied by the Dauphin County Court of Common Pleas. The Pennsylvania Superior Court affirmed the denial on appeal, Commonwealth v. Smith, 404 Pa. Super. 553, 591 A.2d 730 (Pa. Super. Ct. 1991). The Pennsylvania Supreme Court reversed on September 18, 1992, Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (Pa. 1992), and, based on its finding that the Commonwealth had deliberately suppressed the existence of two adhesive lifters, which supported plaintiff's claim of innocence, ordered plaintiff's discharge from custody. The Pennsylvania Supreme Court held that, due to the prosecutorial misconduct which led to plaintiff's conviction, no further charges could be pursued against Smith for the Reinert murders and that a retrial would violate his right against double jeopardy under the Pennsylvania Constitution.
Plaintiff filed this action on September 14, 1994 against author Joseph P. Wambaugh. Smith alleges that Wambaugh conspired with the Pennsylvania State Police Troopers
assigned to investigate the Reinert murders to conceal exculpatory evidence, namely the lifters, and to fabricate evidence linking Smith to the murders. Plaintiff names as Wambaugh's alleged co-conspirators: Pennsylvania State Police Trooper Victor Dove; Pennsylvania State Police Trooper Joseph Van Nort; Pennsylvania State Police Trooper John (Jack) J. Holtz and Pennsylvania Deputy Attorney General Richard L. Guida, Esq. None of these individuals is named as defendant in this action. Wambaugh is the sole defendant.
Smith alleges that initially Holtz and Van Nort were the primary investigators assigned to investigate the Reinert murder. The murder occurred in July, 1979. Smith alleges that in correspondence dated January 29, 1981, Wambaugh promised to pay Van Nort "an additional $ 45,000.00. This [case] is current and hot which is why I'm offering you this kind of money." (Plaintiff's complaint, P 50). In the sentences just prior to these statements, Wambaugh refers to an alleged agreement between the two to provide information on the Reinert case, stating: "During this period of time you would reveal to me everything you know about the case and supply me with any documents which might help me." (Plaintiff's complaint, P 50).
In correspondence dated June 19, 1981, Van Nort allegedly tells Wambaugh: "Things are going well, here, but slow. I will keep in touch with you." (Plaintiff's complaint, P 51).
Eventually, Smith alleges, other investigators and a prosecutor assigned to the case were brought into the circle and participated in the conspiracy to deprive Smith of his constitutional right to exculpatory evidence and to fabricate evidence implicating him in the murders. (See: plaintiff's complaint, PP 68-69)
Smith alleges that the police investigators and a deputy attorney general assigned to the investigation conspired to conceal the lifters and falsify evidence linking him to the murders because they had a mutual pecuniary interest in the success of Wambaugh's book on the murders and in a possible television mini-series based on the book. This led them, Smith alleges, to take steps to increase the likelihood that he would be convicted of the Reinert murders.
Smith asserts three claims against Wambaugh: 1) a section 1983 claim, 42 U.S.C. § 1983, based on Smith's alleged participation in a conspiracy to violate his Fourth, Sixth and Fourteenth Amendment rights (Count I); 2) a state tort claim for civil conspiracy and abuse of process based on alleged acts of evidence tampering for the purpose of altering the course and outcome of plaintiff's criminal trial for the "pecuniary" and "self-aggrandizing interests" of the alleged co-conspirators (Count II); and 3) a state tort claim for abuse of process based on defendant's alleged suborning of evidence tampering (Count III).
Defendant has filed a Rule 12(b)(6) motion to dismiss all claims as time-barred and for failure to state a cause of action on the ground that plaintiff cannot establish termination of the underlying criminal action in his favor, an element essential to his section 1983 claim. For the reasons which follow, defendant's motion will be granted in part. Plaintiff's state tort claims will be dismissed with prejudice as time-barred. Plaintiff's section 1983 claim survives.
In deciding defendants' motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Id. Dismissal is not appropriate unless "it ...