Carpenter v. Dizio

• Decision Date: 09 January 1981
• Docket Number: Civ. A. No. 79-91.
• Citation: 506 F. Supp. 1117
• Parties: Theodore CARPENTER v. Officer John DIZIO, Officer Joseph Flite, Officer Joseph Feeney, Officer Sidney Landis, Officer Ernest Allmond, Officer John Monaghan, Officer Terrence Mulvihill and the City of Philadelphia.
• Court: U.S. District Court — Eastern District of Pennsylvania

506 F. Supp. 1117

Theodore CARPENTER v. Officer John DIZIO, Officer Joseph Flite, Officer Joseph Feeney, Officer Sidney Landis, Officer Ernest Allmond, Officer John Monaghan, Officer Terrence Mulvihill and the City of Philadelphia.

Civ. A. No. 79-91.

United States District Court, E. D. Pennsylvania.

January 9, 1981.

COPYRIGHT MATERIAL OMITTED

Robert M. Fellheimer, Philadelphia, Pa., for plaintiff.

Gerald T. Clark, Asst. City Sol., Philadelphia, Pa., for defendants.

MEMORANDUM

BECHTLE, District Judge.

This case arose from an incident which took place on January 27, 1977. The plaintiff, Theodore Carpenter ("Carpenter"), was walking alone in the vicinity of 13th and Cuthbert Streets in Philadelphia at approximately 8:30 p.m. when he was approached by a person who appeared to him to be a "bum." While pushing Carpenter, the "bum" demanded money from him. Thinking that he was about to be mugged, Carpenter struck the person once. This "bum" was in reality Philadelphia Police Officer John Dizio. Four other plainclothes officers of the Philadelphia Police Department's "Grand-pop" Squad arrived on the scene and proceeded to repeatedly strike and beat Carpenter, using their fists and drawn gun butts, thereby inflicting severe injuries to him.

The injured Carpenter, bleeding and dazed, after being secured in handcuffs and placed in a police wagon, was taken to Metropolitan Hospital and later to Wills Eye Hospital for treatment of his injuries. He was subsequently driven to the Police Administration Building where he was charged with various crimes, including robbery, receiving stolen goods, resisting arrest, aggravated assault and terroristic threats. At a preliminary hearing, it was determined that probable cause had existed for Carpenter's arrest. Unable to post bail, he remained incarcerated at the Philadelphia Detention Center until February 2, 1977.

Carpenter was brought to trial in the Philadelphia Court of Common Pleas before the Honorable William J. Marutani on November 25, 1977. On November 29, 1977, a jury found him not guilty of all criminal charges.

Subsequently, Carpenter brought the instant civil rights action alleging various constitutional violations by Officers Dizio, Joseph Flite, Ernest Allmond, John Monaghan, Sidney Landis, Joseph Feeney and Terrence Mulvihill, as well as the City of Philadelphia ("City").¹ On December 14, 1979, after an eight-day trial, a jury returned a verdict in favor of the plaintiff on the state pendent claims against the following defendants: (1) Officers Dizio and Flite on charges of false arrest, false imprisonment and malicious prosecution; and, (2) Officers Allmond and Monaghan on charges of assault and battery.² Further, the jury assessed $13,000 in compensatory damages and $20,000 in punitive damages against the police officers and the City. The City was held liable on the theory of respondeat superior on the state claims.

The defendants presently seek a new trial or a judgment non obstante veredicto, charging that the Court erred in:

(1) applying the Pennsylvania statutes of limitations;

(2) failing to apply the doctrine of collateral estoppel to a preliminary state court determination of probable cause;

(3) admitting into evidence the former testimony of a witness at the state criminal trial;

(4) failing to dismiss the charge of malicious prosecution against Officers Dizio and Flite;

(5) failing to dismiss the pendent state claims;

(6) applying the doctrine of respondeat superior to the City on state pendent claims; and,

(7) assessing punitive damages against the City.

Upon examination of the alleged errors, the motion of the defendants for a new trial will be denied, and the defendants' motion for a judgment non obstante veredicto will be granted in part and denied in part. The defendants' contentions will be addressed separately.

The defendants have claimed throughout this litigation that the Court erroneously applied the Pennsylvania statutes of limitations. Carpenter filed his complaint on January 9, 1979, which was 23 months and 13 days after his arrest on January 27, 1977. It was also 13 months and 11 days after the final disposition of state criminal proceedings in his favor on November 29, 1977. The defendants argue that the plaintiff's claim of false imprisonment must be merged with the false arrest and malicious prosecution claims, which are governed by a one-year statute of limitations, Pa.Stat. Ann. tit. 12, § 51 (Purdon, 1977), and that all three must be dismissed as not timely brought. They seek a new trial on the assault and battery claim which was timely brought within two years, Pa.Stat.Ann. tit. 12, § 34 (Purdon, 1977). Alternatively, defendants argue that, if the false imprisonment is not merged with the false arrest and the malicious prosecution, all claims must be examined for purposes of the statutes of limitations as separate acts. Under such an analysis, defendants contend that the false arrest and the malicious prosecution claims must be barred as untimely under the one-year limitation period.

Initially, as defendants correctly assert, because 42 U.S.C. § 1983 contains 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." Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1977). Under Pennsylvania law, where the alleged causes of action are "inextricably intertwined," all claims flowing from a defendant's conduct may be subsumed under a single limitation period. Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971). Pennsylvania law does not, however, mandate that where various claims are so intertwined the court must opt for the shortest limitation period. In Gagliardi v. Lynn, supra, the leading case on this issue, the court held that in a false imprisonment charge, which is governed by a two-year limitation period, Pa.Stat.Ann. tit. 12, § 31 (Purdon, 1977), the court must apply the one-year false arrest limitation period. This holding rested upon the notion that every false arrest involves some degree of confinement. Gagliardi v. Lynn, supra at 148-150, 285 A.2d at 111-112. Similarly, the Gagliardi court held:

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 opt for the former.

Id. at 150, 285 A.2d at 112.

The present case is distinguishable from the factual situation in Gagliardi. Here, while Carpenter was being severely beaten by the officers, he was forcibly handcuffed and literally thrown into a police wagon. The assault on Carpenter continued inside the police wagon. The Court finds that it was this act of handcuffing Carpenter and placing him in the police vehicle in the midst of the assault which constituted his arrest.

An arrest may be accomplished by "any act that indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest."

Commonwealth v. Farley, 468 Pa. 487, 494, 364 A.2d 299, 302 (1974); Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1968), quoting 5 Am.Jur.2d, Arrest, § 1 at 695. Accord United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972). Therefore, defendants had brutally beaten Carpenter prior to, during and following his arrest. Moreover, Carpenter averred that his arrest and subsequent criminal prosecution was an effort by the officers to cover up or justify their unlawful activity of beating and arresting him. This involved far more than the confinement and technical battery necessary to facilitate an arrest as in Gagliardi. Clearly, Carpenter's causes of action are interdependent and inextricably intertwined and should be subsumed under a single limitation period. That limitation period should be the two-year limitation period for assault and battery, because that single element pervades every aspect of the case. Pa.Stat.Ann. tit. 12, § 34 (Purdon, 1977). The Court must emphasize that this determination to apply the assault and battery limitation period is not based on the length of that limitation period; rather, it is based solely upon the dominant or pervading cause of action in the group of inextricably intertwined claims — the assault and battery claim.

This case is materially different from that presented in Polite v. Diehl, supra. There, the plaintiff had been involved in an automobile accident and was taken to a hospital and placed under arrest for drunken driving. A considerable time later, while in custody at a police station, he was beaten by police officers. The Polite court held that, since the assault and battery and the arrest were not inextricably intertwined, a two-year limitation should be applied to the assault and a one-year limitation to the arrest. Similarly, Lopez v. White, 443 F.Supp. 556 (E.D.Pa.1977), is not dispositive of the instant action. In Lopez, the plaintiffs alleged that they had been subjected to assaults and arrests by various police officers and these assaults and arrests were in furtherance of a conspiracy among the policemen. The plaintiffs had sought relief under § 1983 and under state pendent claims of false arrest, assault and civil conspiracy. The Lopez court found that the assaults on the plaintiffs, which took place prior to their arrests, were separable and, therefore, held that the two torts were governed by different limitation periods. That court also held that the claim of civil conspiracy was governed by the two-year limitation period for assault claims because, although the assaults were not inextricably intertwined with the arrests, they were acts in furtherance of the conspiracy. The acts giving rise to Carpenter's claims here are not sufficiently distinct to impose different limitation periods. Thus, the Court must reject the defendants' argument that...