*3 BROSKY, BECK, and JJ. Before WIEAND WIEAND, Judge: 16, and on September Moore was arrested
Nathaniel Bruce Wiker. shooting of Edward the fatal charged with first of murder in the guilty found by jury He was tried and for life. imprisonment sentenced degree and was Supreme the Court by affirmed was of sentencе judgment Pa. Moore, 462 See: Commonwealth July on 231, 340 in a civil action brought Moore February
On public the defenders damages against trespass to recover him, assigned represent alleging that their had caused his conviction and incarceration.1 His сomplaint also contained a claim police officers who had him under arrest.2 placed Although pro complaint se drafted, inartfully was we are able to discern therefrom (1) causes of action for civil rights violations under § 1983, (2) arrest, (3) (4) U.S.C. falsе imprisonment, (5) battery, assault and malicious of process. abuse closed, After the had pleadings granted been the trial court all defendants’ motions for on summary judgment grounds that Moore’s alleged causes of action were barred statute of limitаtions contained in the Judicial Code at 42 Pa.C.S. appealed. 5524. Moore We affirm.
“Under Pa.R.C.P.
a motion for
on
judgment
pleadings
may
granted
be
cases which are so free from
doubt that a trial would clearly be a fruitless exercise.
demurrer;
Such motiоn is
the nature of a
all of the
opposing party’s well-pleaded allegations are viewed as true
only
but
those facts specifically admitted
himby
may be
him____
considered against
Unlike a motion for summary
judgment, the power of the court to enter a judgment on
pleadings
is further circumscribed
requirement
that the court
only
consider
the pleadings themselves and
any documents properly attached thereto.” Bata v. Cen
tral-Penn National
Bank
Philadelphia,
(1966),
denied,
178-179
cert.
386 U.S.
(footnote
(1967)
S.Ct.
works Corporation, Pa. 181, 184, 436 687, 259 A.2d 688 Quadro (1969); Del City v. Philadelphia, 293 Pa.Super. of 173, 176-177, 1262, 437 (1981); A.2d Balush v. Bor- 1263 ough Norristown, 416, 419, 292 Pa.Super. 453, 437 A.2d of Natoli, (1981); 454 Nevling v. 174, Pа.Super. 177, 290 434 187, Zelik v. 188 Daily The News Publishing Co., 277, 279, 288 Pa.Super. 1046, 1047 Puleo v. Broad Hospital, Street Pa.Super. 267 407 394, 396 § Code,
The 42 5524(1) Judicial at (2), Pa.C.S. estab- lishes two for year limitations the commencement of actions assault, “for battery, imprisonment, arrest, false mali- prosecution cious process” malicious abuse of “to recover damages injuries person by ... caused the ... another.”
Appellant’s causes- of action ar alleged resting police accrued officers when he was on arrested 16, September 1972. The were actions barred after two elapsed. action, had years present The commenced more arose, years than six after causes of action was untimely, and the trial court on properly judgment plead entered ings favоr of the arresting policemen.
Appellant contends
an action for violations
rights
the federal civil
statute cannot be barred
statute
a state
His
legislature.
of limitations enacted
contention
There is no federal statute of limita
clеarly
incorrect.
42
rights
actions under
applicable
tions
civil
U.S.C.
is the
applicable
statute of limitations
state
alleged
to the conduct
to have
applicable
statute which
Diehl,
rights. Polite v.
507 F.2d.
plaintiff’s
civil
violated
Chester, 494
v.
119,
(3rd Cir.1974);
Ammlung
City of
Odorioso,
Henig v.
(3rd Cir.1974);
F.2d
F.2d
dеnied,
(3rd Cir.1967),
88 S.Ct.
cert.
U.S.
denied, 391 U.S.
rehearing
(1968),
Aрpellant that he continues cannot because imprisonment be barred offense, therefore, continuing. and the is prison to be incarcerated, is still he Although appellant it is correct that continuing virtue being any is not detained of presently Rаther, he part appellees. of is present conduct on the the of sentence judgment detained because of a valid presently imposed following murder. conviction for is the period
A novel and more difficult issue of limitation legal a а applicable malpractice to civil action for have public alleged defender whose to been plaintiff’s incarcera- for criminal conviction and cause person” tion. If an “injuries such action is for inflicted, the two negligently applicable years. limitation is § 5524(2). alleged Pa.C.S. If the is based on an action hiring implied breach of an oral contract of or a contract § law, 5525(3) is four years. limitation Pa.C.S. (4). if the Finally, upon cause of action based written if no appliсable, contract or other of limitations is statute the action must be six years. commenced within Pa.C.S. § 5527(2)and
Prior decisions have
default
usually treated the
malpractice
an
of
attorney
of
as a breach
contract between
attornеy and client and have
the six
statute
applied
year
limitations contained in the
of March
Act
Sm.L.
Estate, (No.
now repealed.
P.S.
See: Huffman
’
3),
Pa.
Rhines Administrators
Evans,
case.
The year two statute of limitations is appliсable actions wrongful negligence where the act or of another has caused § 5524(2). “injuries person.” to the 42 Pa.C.S. We must determine, then, in appellant’s whether claim this action is injury person. to his We conclude that it is. “Personal (5th Ed.1979) in injury” Dictionary is defined Blaсk’s Law as follows: sense, In injury. damage
“Personal a narrow a hurt or bruise, done to a man’s such as a cut or person, broken like, limb, from an to his distinguished injury or the as reputation. phrase chiefly or his The used property this connection with actions of tort fоr and compensation under worker’s statutes. But the term is sense, statutes) in a much (chiefly also used wider including personal as which is an invasion of any injury signification may inju- in this it include such rights, and slander, as criminal conversa- person ries to libel and men- tion, imprisonment, malicious prosecution, suffering.” tal his cause of action in complaint se describes
Appellant’s pro damages upon claim for is based ways, various but his his conviction and subse- of counsel which allowed conduct sense, This, in a is a claim for inсarceration. broad quent such, hold that it must be As we person. to his injury years. commenced within two to run begins rule is that the statute general The Med-Mar, Inc. v. act is done. negligent time the from the , 910, 405-406, 402, 257 A.2d 912 214 Pa.Super. Dilworth expe of limitations is to a statute (1969). purpose Thе claims. Insurance discourage stale and to litigation dite 48, 51, Carnahan, 446 Pa. v. America North Company of (1971); Metropolitan v. 728, Ulakovic A.2d 729 284 Life 41, 42-43 571, 575-576, A.2d 16 Co., Pa. 339 Insurance duty has a against another a claim asserts (1940). One who the facts inform himself of diligence reasоnable to use all period. prescribed within the suit to institute 267, 402, 405, 269 189 A.2d Larzelere, 410 Pa. v. Schaffer
271
Co.,
Employees
Platts v. Government
Insurance
(1963);
(1982);
Med-
379, 381,
1017,
A.2d
Pa.Super.
447
1018
Mar,
Dilworth,
406,
supra
Inc. v.
257 A.2d
Pa.Super.
at
mistake, misunderstanding
at 912. Mere
or lack of knowl-
edge
running
is not sufficient
to toll
thе limitations
Ditzler,
v.
445,
833,
Walters
period.
449,
424 Pa.
227 A.2d
89, 93,
Nesbitt v. Erie Coach Company,
(1967);
416 Pa.
473,
Weikers,
McNair v.
(1964);
Pa.Super.
Control
446 A.2d
Henry
Products
Company,
Pa.Super.
426 A.2d
dismissed,
appeal
(1981),
(1981). such Nо averments have been Imprison made. ment alone insufficient to extend the prescribed limita tion. 42 Pa.C.S. 5533. The fact that filed a appellant petition P.C.H.A. the criminal action alleging ineffective entirely assistance of counsel was inadequate to toll the running of the statute on the civil action.
Appellant contends that he was attorneys deceived his because did they not disclose to him that had made they mistakes at trial and appeal on which them subjected to a However, сivil action for damages.3 he alleged has not that he was unaware of counsel’s acts of misfeasance or the injury caused thereby. On he contrary, present was during the trial and also when and, the verdict was returned subsequently, when sentence impоsed. was The errors of counsel, if any, were not committed in only secret. Not were they public, committed but they perpetuated were in record continuously available for Appel examination. lant simply failed to act promptly prеserve rights. his He will not excused from consequences be delay because, contends, as he his public defenders didn’t tell him Rather, they that had been it negligent. patently clear appellant failed to “use all diligence reasonable necеs sary to inform himself of facts and circumstances ... and to institute the suit within the statutory period.” Platts v. Co., Government Insurance There Employees supra. fore, “trial would abe fruitless exercise.” Blumer v. Dorfman, Coyne Company, Pa.Super. 1, 6, v. Porter-Hauden entering judgment on the is af- pleadings order firmed. J.,
BROSKY, concurring opinion. files a BROSKY, Judge, concurring: I write majority. I concur in the result reached statute of upon question to comment of what separately *8 suit his for- appellant’s against should to apply limitations cоunsel. appointed mer court alleges injuries the suit to concludes that majority gov- of limitations two-year and that a statute person I agree. the case. erns that to new matter response an answer in filed
Appellant
matter,
In
new
counsеl.
his
his former
had been raised
to
public defenders are not entitled
Supreme
that
Court held
3. The
liability
malpractice in Reese
may
subject
immunity
be
to civil
and
Danforth,
The record sufficient bаsis for our I would limit our comments to the facts of that record. is, That I refrain commenting, would from does the as against that suits majority, public defenders should not be breach agree construed as of contract cases. While I this not as a I case, cаse should be treated contract have not had occasion consider whether some other malpractice public suit might defender allege breach con- case, tract. The issue was not argued briefed this I believe that we should refrain from general comment.
v.
Dennis GOLDWIRE. Pennsylvania COMMONWEALTH GOLDWIRE, Appellant. Dennis Superior Pennsylvania. Court of
Argued April 1982.
Filed Jan. 1983. Reargument Denied March