507 F.2d 119 (3rd Cir. 1974), 72-1770, Polite v. Diehl

Docket Nº:72-1770, 72-2013.
Citation:507 F.2d 119
Party Name:Harold POLITE, Appellant, v. Donald DIEHL and Walter Lofstrom, as Individuals and as Officers of the McKeesport Police Department. Harold POLITE, Appellant, v. William RENDULIC et al.
Case Date:December 31, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 119

507 F.2d 119 (3rd Cir. 1974)

Harold POLITE, Appellant,


Donald DIEHL and Walter Lofstrom, as Individuals and as

Officers of the McKeesport Police Department.

Harold POLITE, Appellant,


William RENDULIC et al.

Nos. 72-1770, 72-2013.

United States Court of Appeals, Third Circuit

December 31, 1974

Submitted Under Third Circuit Rule 12(6) May 22, 1973,

Resubmitted En Banc Sept. 13, 1974.

Page 120

Irving M. Portnoy, Harry J. Gruener, Richard B. Springer, Litman, Litman, Harris & Specter, Pittsburgh, Pa., for appellant.

Daniel J. Weis, Weis & Weis, Pittsburgh, Pa., for appellees.

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Nos. 71-6371, 71-7601).

Submitted Under Third Circuit Rule 12(6) on May 22, 1973

Before KALODNER, ALDISERT and ADAMS, Circuit Judges.

Resubmitted En Banc Sept. 13, 1974


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ADAMS, Circuit Judge.

The primary issue on appeal in this civil rights action is whether the district court, in granting the defendants' motion for summary judgment, applied the correct statute of limitations.


On the evening of August 17, 1969, an automobile operated by Polite, the plaintiff, struck the rear of a vehicle that had stopped at a 'Stop' sign. The defendant Diehl, a McKeesport, Pennsylvania, policeman, arrived two or three minutes after the accident occurred. He transported Polite, his two children, and a girl who had been riding in the other car, to McKeesport Hospital. On Diehl's instructions, Polite's car was towed away by a private towing service.

Polite was placed under arrest at the hospital on charges of driving under the influence of liquor and disorderly conduct. Polite alleges that while he was held in custody at the police station the defendant policemen maliciously beat him and sprayed chemical mace in his eyes. Then, Polite claims, he was taken before a magistrate and forced to plead guilty to charges of disorderly conduct, resisting arrest, and failure to have a driver's license and ownership card as required by Pennsylvania law. The following morning, after a hearing, Polite was bound over on the drunken driving charge.

Approximately 23 months after Polite's arrest he filed a civil rights action against Diehl and Lofstrom. A little less than 24 months after the arrest 1 he filed another suit against Rendulic, Chancio, Hanna, Donet, Sokol and Lofstrom, alleging the same violations of his civil rights raised in the first suit. All the defendants were McKeesport policemen. The two actions were consolidated in the district court.

The complaints both alleged that the defendant policemen, 'acting in concert and under color of state law,' violated the Civil Rights Acts 2 in depriving Polite of due process of law and equal protection of the laws in that (1) 'Plaintiff was detained and incarcerated without a warrant, probable cause, explanation of the charges, explanation of his rights or the opportunity to consult with counsel;' (2) 'Plaintiff was subjected to verbal abuse and taunting (and) . . . physical abuse by the defendants in that he was repeatedly beaten, kicked, punched and while imprisoned in a cell was subjected to the application of liquid chemical mace to the eyes, all of which caused serious and severe injuries to the plaintiff,' and 'denied medical attention for the injuries received in the beatings administered by the defendants;' (3) 'By the use of threats, intimidation and interrogation was forced by the defendants to plead guilty to the charges alleged;' and (4) 'At the time of the collision the defendants, without explanation, unlawfully seized the plaintiff's vehicle.'

The defendants denied the allegations in Polite's complaints, and then filed a motion for summary judgment 3 on the ground that Pennsylvania's one-year statute of limitations for actions based

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on false arrest 4 barred plaintiff's suits. Polite, in reply, contended that the appropriate statute of limitations was Pennsylvania's two-year statute pertaining to suits for personal injury. 5

Following a hearing on defendants' motion for summary judgment, the district court granted judgment in favor of the defendants in both actions. The district court construed Gagliardi v. Lynn, 6 the leading case on the scope of Pennsylvania's statute of limitations for false arrest actions, as holding that that statute 'applies to the entire course of conduct in cases involving incarceration preceded by arrest, including any incidental assault and battery.' 7 Applying the one-year false arrest statute of limitations to the entirety of Polite's complaints, the district court granted defendants' motions since more than a year had elapsed between the alleged violations of Polite's rights and the filing of the actions. These appeals followed.


Polite contends that the district court should have applied Pennsylvania's two-year statute of limitations pertaining to personal injury actions instead of the one-year statute of limitations relating to actions for false arrest. Although Polite has not challenged the district court's application of a single statute of limitations to the numerous claims raised in his complaints, we must determine whether the district court should have applied a separate statute to each cause of action.

The district court correctly applied the one-year statute of limitations to Polite's allegations of an unlawful arrest, but it erred in holding that the one-year statute extended to the assault and battery, conversion and guilty plea aspects of his actions.

Since the Civil Rights Acts contain no statute of limitations, the limitation to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law. Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967), cert. denied 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968). Consequently, this Court has held that Pennsylvania's one-year statute of limitations pertaining to suits for false arrest is applicable to federal civil rights actions for a false arrest allegedly committed in Pennsylvania. Hileman v. Kanble, 391 F.wd 596 (3d Cir. 1968); Henig v. Odorioso, supra. Accordingly, the district court did not err in applying the bar of Pennsylvania's one-year statute of limitations to the unlawful arrest aspect of Polite's actions.

Gagliardi, supra, however, affords no support for the view, adopted by the district court, that the limitations statute applicable to actions for false arrest 'applies to the entire course of conduct in cases involving incarceration preceded by arrest, including any incidental assault and battery.' 8 In Gagliardi, the only issue was whether the trial court erred in holding that the one-year false arrest statute barred an action for false imprisonment. The Pennsylvania Supreme Court, in affirming, stated that 'confinement is inextricably intertwined with an unlawful arrest,' and 'By the same token, if the false arrest involved only a touching and no confinement, and we were forced to choose between limitation statutes relating to false arrest and battery, we would

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opt for the former.' 446 Pa. at 150, 285 A.2d at 112.

Putting aside the fact that the latter statement was dictum, the language quoted refers only to a 'touching' or battery committed in accomplishing an arrest. The assault alleged here occurred not when the plaintiff was arrested at the hospital, but considerably later while he was being held in the police station. Therefore, since the alleged assault and battery was not 'inextricably intertwined' with the alleged false arrest, plaintiff's cause of action for assault and battery would not, under Pennsylvania law, be subsumed under the one-year statute applicable to suits for false arrest. Rather, if plaintiff had brought an analogous action in state court, that court would have applied Pennsylvania's two-year personal injury statute to the assault and battery. The district court here, therefore, must do the same. Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972).


The district court dismissed plaintiff's allegations of a coerced guilty plea and the illegal seizure of plaintiff's automobile on the basis of the one-year false arrest statute of limitations. What has been said with regard to the assault and battery allegations demonstrates that the district court erred in doing so, since that alleged conduct was separable from the false arrest. The Pennsylvania statute of limitations applicable to state suits analogous to the allegation of the unlawful seizure of plaintiff's automobile is the six-year statute for actions for the recovery of goods. The state cause of action most similar to plaintiff's allegation of a guilty plea coerced by physical abuse is one for wrongful personal injury not resulting in death, to which a two-year statute is applicable. 9 The trial court therefore erred in summarily disposing of these two causes of action on the basis of the one-year false arrest statute.

Both parties to this appeal contend that plaintiff's entire complaint should be governed by a single limitations statute. Such a ruling, however, would be contrary to the holdings in Henig, supra, and Thomas, supra, that the district court must apply the same statute of limitations that a state court would apply in a state action seeking similar relief. Moreover, applying a single statute would have an anamalous result, since joining a claim for unlawful arrest with one for 'police brutality' would either extend the statute which would be applicable...

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