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August 21, 1996

THE ESTATE OF ROBERT J. FORTUNATO, by his personal representative PAUL J. FORTUNATO, Plaintiff
MICHAEL HANDLER, both individually and as District Attorney for the County of Indiana, CHESTER MAHOLTZ, both individually and as Team Leader of the Pennsylvania State Police S.E.R.T., GEORGE MARCH, both individually and as Director of the State Police Bureau of Emergency and Special Operations, ROBERT FYOCK, both individually and as Chief County Detective for the Borough of Indiana, EUGENE KING, JAMES MARTSOLF, and DALE SMITH, Members of the Pennsylvania State Police Sudden Emergency Response Team, Defendants

The opinion of the court was delivered by: LEE

 August 21, 1996.

 Before the Court are summary judgment motions filed on behalf of (i) defendants Michael Handler, District Attorney of Indiana County and Robert Fyock, Chief County Detective of Indiana County ("county defendants") (Document No. 66), and (ii) defendants George March, Director of the State Police Bureau of Emergency and Special Operations, Chester Maholtz, Team Leader of the Pennsylvania State Police Sudden Emergency Response Team ("S.E.R.T."), and State Police Troopers Eugene King, James Martsolf and Dale Smith ("state police defendants") (Document No. 71). Upon consideration of defendants' motions for summary judgment, memoranda in support and statements of undisputed facts with affidavits, supporting deposition transcripts and other documentary material attached, and the plaintiff's response, statement of material facts with attachments, affidavit and memorandum opposing summary judgment, the Court will grant summary judgment in favor of defendants on the basis of qualified immunity.

 I. Summary Judgment Standards

 Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows:

[Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must view the facts in a light most favorable to the non-moving party and the burden of establishing that no genuine issue of material fact exists rests with the movant. Id., 477 U.S. at 242. The "existence of disputed issues of material fact should be ascertained by resolving 'all inferences, doubts and issues of credibility against the moving party.'" Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978), quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir. 1993).

 When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is "merely colorable" or "not significantly probative," the Court may grant summary judgment. Anderson, 477 U.S. at 249-50.

 II. Statute of Limitations

 Defendants initially assert that plaintiff's claim is time-barred. Federal courts apply the analogous state personal injury statute of limitations in section 1983 actions. Smith v. Holtz, 856 F. Supp. 227, 231 (M.D. Pa. 1994), citing Wilson v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). Thus Pennsylvania's two-year personal injury statute of limitations, 42 Pa. C.S.A. § 5524, applies. Urrutia v. Harrisburg County Police Dep't., 91 F.3d 451, 457, 1996 WL 420799, *9-*10, n. 9 (3d Cir. 1996).

 Robert J. Fortunato ("Fortunato" or "decedent") was shot and killed by members of the Pennsylvania State Police Sudden Emergency Response Team ("S.E.R.T.") on December 31, 1992, during the execution of a warrant for his arrest on misdemeanor charges of harassment by communication and making terroristic threats in violation of sections 5504(a)(1)(2) and 2706 respectively, of the Pennsylvania Crimes Code, 18 Pa.C.S. §§ 5504(a)(1)(2), 2706. Decedent's twin brother, Paul J. Fortunato ("Paul Fortunato" or "Administrator"), filed a complaint on behalf of the Estate of Robert J. Fortunato, as "personal representative," on December 30, 1994, one day before the two-year statute of limitations was due to expire.

 Defendants contend, however, that because Paul Fortunato did not apply for or receive letters of administration of the estate before the statute of limitations had run, the complaint filed before that time did not satisfy the statute of limitations, under Pennsylvania law, and his subsequent appointment as administrator does not "relate back." Defendants' reliance on Pennsylvania case law is misguided, however, because federal procedural law, specifically Federal Rule of Civil Procedure 17(a), governs the relation back issue in this case.

 Paul Fortunato applied for letters of administration on December 28, 1994, which were not granted by the Indiana County Register of Wills until February 7, 1995, because of the necessity of securing renunciations from other family members. Additionally, Paul Fortunato asserts in his Affidavit Opposing Motions for Summary Judgment (Document No. 79) that he has been acting as his brother's personal representative since December 31, 1992. Affidavit, P2.

 "If there is a Federal Rule of Civil Procedure covering a particular issue in dispute between the parties, such a rule governs in a federal diversity action even if resort to state law would lead to a different result." In re Asbestos School Lit., 768 F. Supp. 146, 150 (E.D. Pa. 1991), citing Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965). Under Hanna v. Plumer, "the question of relation back is procedural and therefore properly analyzed according to federal practice." Nelson v. County of Allegheny, 60 F.3d 1010, 1014 (3d Cir. 1995). See also Hess v. Eddy, 689 F.2d 977, 980 (11th Cir. 1982), cert. denied, 462 U.S. 1118, 77 L. Ed. 2d 1347, 103 S. Ct. 3085 (district court "erred in applying Alabama's 'no relation back' rule in the face of a Federal Rule of Civil Procedure [17(a)] that expressly authorizes and adopts the 'relation back' doctrine" in context of administration of estate and suit filed in federal court prior to administratrix receiving official representative status); Brohan v. Volkswagen Mfg. Corp. of America, 97 F.R.D. 46, 49 (E.D. N.Y. 1983)(in similar context, Fed.R.Civ.P. Rule 17(a) applies by its plain language and, under Hanna v. Plumer, overrides New York law to the contrary).

 Fed.R.Civ.P. 17(a) of the Federal Rules of Civil Procedure specifically addresses the issue of substitution, ratification or joinder of the real party in interest and the effect thereof on suits previously filed:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

 In analyzing Rule 17(a), the Court of Appeals for the Eleventh Circuit concluded that:

The plain language of the Rule clearly provides that when an action is brought by someone other than the real party in interest within the limitations period, and the real party in interest joins or ratifies the action after the limitations period has run, the amendment or ratification relates back to the time suit was originally filed and the action need not be dismissed as time barred.

 Hess v. Eddy, 689 F.2d at 980.

 Fed.R.Civ.P. 17(a) "sets forth a rule of procedure that is to be applied in federal courts. . . . even where the courts of the forum state have rejected the 'relation back doctrine.'" Id. at 981. Thus, if "the initial filing came within the applicable limitations period, the suit is not time barred," id., even if Pennsylvania law would not recognize the relation back. See Levinson v. Deupree, 345 U.S. 648, 97 L. Ed. 1319, 73 S. Ct. 914 (1953), relied upon in Hess, (in the case of a wrongful death action brought by party not yet properly appointed as administrator of decedent's estate, and where the appointment occurs only after the statute of limitations has run, a federal court must allow the ...

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