                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-1995

Nelson v County of Allegheny
Precedential or Non-Precedential:

Docket 94-3511




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Recommended Citation
"Nelson v County of Allegheny" (1995). 1995 Decisions. Paper 188.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/188


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               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                          ___________

                          No. 94-3511
                          ___________



                  TAMMY NELSON, (J.D. #10);
     ARLEIGH EDDY, (J.D. #17); IDA KAUFMAN, (J.D. #26);
    SANDY SAUNDERS, (J.D. #47); DONNA SKUTA, (J.D. #52);
  JANET COCCHI, (J.D. #12); MARY BEDDINGFIELD, (J.D. #7);

                              v.

            COUNTY OF ALLEGHENY, (The "County");
CHARLES R. KOZAKIEWICZ, Warden of the Allegheny County Jail;
               CITY OF PITTSBURGH, (the City);
       MAYER DEROY, Assistant Chief of the City Lockup
         at the time of the incidents complained of,
   being sued in their official and individual capacities

                  JUDY DICK,* (J.D. #16);
                  VALERIE ZYSKOWSKI,* (J.D. #60);
                  JANET COCCHI, (J.D. #12); and
                  MARY BEDDINGFIELD, (J.D. #7)
                    (*Pursuant to Rule 12(a),
                      F.R.A.P.),
                            Appellants


      _______________________________________________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
            (D.C. Civil Action No. 91-cv-00316)
                    ___________________


                     Argued March 7, 1995

    Before:   BECKER, SCIRICA, and WOOD*, Circuit Judges

                     (Filed July 18, 1995)




                 1
*The Honorable Harlington Wood, Jr., United States Circuit Judge for the Sev
Circuit, sitting by designation.




                               2
                    A. LAWRENCE WASHBURN, JR., ESQUIRE (ARGUED)
                    Legal Center for Defense of Life
                    210 East 23rd Street, Suite 5F
                    New York, New York 10010

                      Attorney for Appellants


                    BRIAN S. KANE, ESQUIRE (ARGUED)
                    STACEY F. VERNALLIS, ESQUIRE
                    Pietragallo, Bosick & Gordon
                    One Oxford Centre, 38th Floor
                    Pittsburgh, Pennsylvania 15219

                      Attorneys for Appellees,
                      County of Allegheny and
                      Charles R. Kozakiewicz


                    SUSAN E. MALIE, ESQUIRE
                    City of Pittsburgh
                    Department of Law
                    313 City-County Building
                    Pittsburgh, Pennsylvania 15219

                      Attorney for Appellees,
                      City of Pittsburgh and Mayer Deroy


                                   __________________

                                   OPINION OF THE COURT
                                    __________________


SCIRICA, Circuit Judge.


          For claims subject to federal statutes of limitations, commencemen

action tolls the running of the statute for all purported members of the cla

denial of class certification, the tolling period ends.    In this appeal we m

whether the Pennsylvania Supreme Court would continue the tolling period of

statute of limitations beyond a district court's denial of class certificati

appeals of that denial are exhausted.   We also must decide whether Rule 15(c
Federal Rules of Civil Procedure would permit relation back of an amendment


                               3
that names new plaintiffs after expiration of the statute of limitations wh

plaintiffs are neither substituted nor have shown mistake concerning identit

affirm the order of the district court dismissing plaintiffs' claims.

                                               I.

             On March 11, 1989, anti-abortion protestors demonstrated on the g

private clinic in Pittsburgh and blocked patient access to the facility.     Pi

police arrested about sixty female protestors and took them to a city holdin

until their transfer to the Allegheny County jail.     They were detained overn

released the next day.

             On February 21, 1991 -- eighteen days short of the two-year anniv

protest -- this lawsuit was filed, as a class action by a representative on

the women arrested and by four protestors asserting individual claims.     The

alleges that the city and county and their employees, through their actions

and detaining the women, violated the protestors' civil rights under 42 U.S.

The district court denied a motion for certification of a plaintiff class o

1991.     Eighteen days later, on December 10, the protestors filed a third ame

that included two more women asserting individual claims.

             After the passage of two more years, and five years after the dem

issue, the protestors filed a fourth amended complaint on March 17, 1994.     T
complaint named five of the six women who had previously asserted individual

woman chose voluntarily to dismiss her claims) and added two more plaintiffs

and Mary Beddingfield. On May 31, 1994, two additional protestors, Judy Dick

Zyskowski, filed a joint motion to intervene as party plaintiffs.

             Defendants then moved to dismiss the claims of Cocchi and Bedding

strike the motion of Dick and Zyskowski to intervene.     The district court gr


0
    The protestors also asserted various other claims that the district court d


                                   4
motions, holding that the four women's claims were barred by the applicable

limitations.   Cocchi, Beddingfield, Dick, and Zyskowski appeal.

                                             II.

            The district court had jurisdiction of this case under 28 U.S.C. §

and § 1343(a)(3)-(a)(4) (1988).   We have jurisdiction if the district court'

constitute "final decisions" under 28 U.S.C. § 1291 (1988).     The determinat

appellants' claims are barred by the statute of limitations is a final and r

decision.   See Green V. Humphrey Elevator & Truck Co., 816 F.2d 877, 878 n.

1987) ("order dismissing the complaint in the instant action is final and t

. . . because the statute of limitations on appellant's cause of action has

            We exercise plenary review over a district court's dismissal of a

See Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993); Napier v. Thirty or

Unidentified Fed. Agents, 855 F.2d 1080, 1085 (3d Cir. 1988).      Although we

review dispositions of motions to intervene for abuse of discretion, Brody

Sugzdinis v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992), the district court

exercise discretion in denying the motion to intervene, but barred the claim

its legal conclusion that the statute of limitations had expired.     In these

we conduct plenary review.    See American Pipe & Constr. Co. v. Utah, 414 U.S

(1974) ("In denying permission to intervene in this case, however, Judge Pen
purport to weigh the competing considerations in favor of and against interv

simply found that the prospective intervenors were absolutely barred by the

limitations.   This determination was not an exercise of discretion, but rath

conclusion of law . . . ."). Similarly, "[w]e have plenary review of the di

choice and interpretation of applicable tolling principles and its conclusi

facts gave rise to a tolling of the statute of limitations."    Sheet Metal Wo
19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991).    Finally, our re

district court's construction of Pennsylvania law is de novo.      Salve Regina


                                  5
Russell, 499 U.S. 225, 231 (1991) ("We conclude that a court of appeals shou

novo a district court's determination of state law."); Grimes v. Vitalink C

Corp., 17 F.3d 1553, 1557 (3d Cir.) ("The determinations regarding state law

appropriate, will be reviewed de novo."), cert. denied, 115 S. Ct. 480 (199

                                              III.

           Because Congress did not establish a statute of limitations applic

actions brought in federal court, federal district courts must "borrow" stat

limitations governing analogous state causes of actions.     Board of Regents

U.S. 478, 483-85 (1980) (citing 42 U.S.C. § 1988 and numerous cases).      Furt

practice of `borrowing' state statutes of limitations `logically include[s]

tolling.'"   Chardon v. Fumero Soto, 462 U.S. 650, 657 (1983) (citing Tomani

485).   The parties agree that Pennsylvania's two-year statute of limitation

the plaintiffs' § 1983 claims here and that the running of the statute prop

when the class action was filed.     The parties dispute, however, the duration

tolling period applicable to claims of class members.

           The Pennsylvania Supreme Court approves tolling the running of st

limitations while eligible class members are putative parties to a class act

Alessandro v. State Farm Mut. Auto. Ins. Co., 409 A.2d 347, 350 n.9 (Pa. 19

United States Supreme Court has held that such tolling protects both interv
purported class members who later file individual actions.      Crown, Cork & S

Parker, 462 U.S. 345, 350 (1983); American Pipe & Constr. Co. v. Utah, 414

(1974).0   The dispute here concerns when such tolling stops.    The defendants

0
 Pa. R. Civ. P. 1701(a) defines a class action as, "[A]ny action brought by
parties as representatives of a class until the court by order refuses to ce
such or revokes a prior certification under these rules." The 1977 Explana
the rule states that this definition becomes important in determining the ef
commencement of a class action because it "carries into effect the decision
Pipe, holding that] the commencement of an action as a class action suspends
applicable statute of limitations during the interim period from commencemen
refusal to certify as to all putative members of the class . . . ."


                                 6
tolling period ended when the district court denied certification of the cla

Plaintiffs contend that tolling should have continued until the class repres

appeal of the denial was exhausted.

          Plaintiffs seek to rely on a decision of the Pennsylvania Superio

held tolling continued during the pendency of the class representative's app

v. Federal Kemper Ins. Co., 508 A.2d 1222, 1231 (Pa. Super. Ct. 1986).     The

declined to follow the Miller panel, noting the different appellate procedu

Pennsylvania and federal courts.     Pennsylvania courts treat the denial of cl

certification as a final order from which an appeal may be taken immediately

409 A.2d at 350. Denial of class certification by a federal court, however,

interlocutory and ordinarily not immediately appealable.     Coopers & Lybrand

437 U.S. 463, 470 (1978).    Thus, in state court proceedings, there is some l

continuing the tolling period while the certification decision is resolved.

federal court, such a continuation would result in a substantial extension o

period.   The district court found that this distinction made application of

Court's rule to cases in federal courts unreasonable.     We agree.

          In deciding that the Pennsylvania Supreme Court would similarly cr

distinction, we observe that, in related contexts, Pennsylvania's highest co

weighed the policies warranting application of tolling periods to statutes
against the risks of diluting those statutes. "Statutes of limitations embod

policy judgments that must be taken into account in determining the scope of

of the tolling principle."    Cunningham v. Insurance Co. of N. Am., 530 A.2d

1987), cert. denied, 484 U.S. 1008 (1988).     In Cunningham, the court found t

patently non-justiciable claim was not sufficient to toll the statute, noti
          To hold otherwise would be to render the statute of limitations so
          diluted in its effect as to skirt the clear legislative policy
          expressed therein, and would encourage plaintiffs to sleep on thei
          rights in the hope that officious intermeddlers, who lack standing
          will institute actions on their behalf.


                                 7
Id. at 411.

          We predict that the Pennsylvania Supreme Court would apply paralle

here, and conclude that to permit tolling the statute of limitations until f

resolution on appeal of all claims would disable the essential purpose of t

encourage plaintiffs to sleep on their rights. Accordingly, we will affirm t

court's order dismissing the claims of Cocchi and Beddingfield and striking

Dick and Zyskowski to intervene.

                                            IV.

          Alternatively, Cocchi and Beddingfield assert they may evade the

limitations because, under Federal Rule of Civil Procedure 15(c), inclusion

claims in the fourth amended complaint, filed five years after the demonstra

than two years after expiration of the statute of limitations, should relat

filing date of the initial complaint.   We disagree.0

          Federal Rule of Civil Procedure 15(c) permits amendment of a plead

back to the date of the original pleading when:
               (1) relation back is permitted by the law that provides the
          statute of limitations applicable to the action,0 or


0
  Because the district court did not address this argument in the opinion bel
ask us to remand for consideration of the question. We note, however, that
rule that a federal appellate court does not consider an issue not passed up
one of discretion rather than jurisdiction. Selected Risks Ins. Co. v. Bruno
69 (3d Cir. 1983). We exercise that discretion here, noting that we may affi
district court on any basis. See, e.g., Felix v. Virgin Islands Government
57 (citing Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir.), cert. d
870 (1980)).
0
  This provision, added in 1991, was intended to make clear "that the rule do
to preclude any relation back that may be permitted under the applicable lim
of the jurisdiction that provides the statute of limitations. 3 James W. Mo
Moore's Federal Practice ¶ 15.15[3.-1] (2d ed. 1995) (quoting 1991 Advisory
Note). According to the Advisory Committee Note, if the law providing the l
"affords a more forgiving principle of relation back than the one provided
it should be available to save the claim." Pennsylvania does not provide a "
principle of relation back" than does federal practice. See Aivazoglou v. D
Furnaces, 613 A.2d 595, 599 (Pa. Super. Ct. 1992) (adhering to the "well est
that new parties cannot be introduced into a suit by amendment following exp


                                8
               (2) the claim or defense asserted in the amended pleading a
          out of the conduct, transaction, or occurrence set forth or attemp
          to be set forth in the original pleading, or

               (3) the amendment changes the party or the naming of the pa
          against whom a claim is asserted if the foregoing provision (2) is
          satisfied and . . . the party to be brought in by amendment (A) ha
          received such notice of the institution of the action that the pa
          will not be prejudiced in maintaining a defense on the merits, and
          knew or should have known that, but for a mistake concerning the
          identity of the proper party, the action would have been brought
          against the party. . . .


Fed. R. Civ. P. 15(c).0   Relying on Varlack v. SWC Caribbean, Inc., 550 F.2d

1977), Cocchi and Beddingfield claim subparagraph (3) of Rule 15(c) allows t

coming more than two years after expiration of the statute of limitations a

as plaintiffs, to relate back to the original action.0   But for appellants'

relate back, all three conditions specified in Rule 15(c)(3) must be satisfi

Appellants' argument fails because they have not demonstrated "a mistake co

identity of the proper party."

          Statutes of limitations ensure that defendants are "protected agai

prejudice of having to defend against stale claims, as well as the notion th

point, claims should be laid to rest so that security and stability can be r

human affairs."   Cunningham, 530 A.2d at 409 (citations omitted).   In order

this protection, the relation-back rule requires plaintiffs to show that th
commenced action sufficiently embraces the amended claims so that defendant

unfairly prejudiced by these late-coming plaintiffs and that plaintiffs hav

their rights.

period of the statute of limitations"). Accordingly, this subparagraph does
appellants' case.
0
  Under Hanna v. Plumer, 380 U.S. 460 (1965), the question of relation back i
and therefore properly analyzed according to federal practice. 3 J. Moore,
15.15[2].
0
  In Varlack, we held that replacement of a "John Doe" caption with a party's
amounted to "changing a party," warranting application of Rule 15(c). Varla
Caribbean, Inc., 550 F.2d 171, 174 (3d Cir. 1977).


                                 9
             Where the effort is to add new parties, courts apply subparagraph

inquire whether the defendants (A) received such notice that they will not b

in maintaining a defense on the merits, and (B) knew or should have known th

mistake concerning the identity of the proper party, the action would have b

with the original claims.0

             The emphasis of the first prong of this inquiry is on notice.   "[T

`prejudice' to which the Rule refers is that suffered by one who, for lack o

notice that a suit has been instituted, must set about assembling evidence a

constructing a defense when the case is already stale."     Curry v. Johns-Manv

F.R.D. 623, 626 (E.D. Pa. 1982). Because Cocchi and Beddingfield allege inju

conduct described in the original pleading, the evidence relevant to a defen

these new claims would be the same as the evidence relevant to a defense aga

original claims. Hence, Cocchi and Beddingfield satisfy the first prong of R

             On the second prong, however, the new complaint fails. Defendants

nor should they have known before the expiration of the limitations period t

mistake, they would have been sued directly by these plaintiffs.     The Court

the District of Columbia Circuit has noted that without some limit relation
          would allow the tardy plaintiffs to benefit from the diligence of
          other victims and, more importantly, could cause defendants' liabi
          to increase geometrically and their defensive strategy to become f
          more complex long after the statute of limitations had run. Even
          as here, there were no showing of specific prejudice in the sense
          lost or destroyed evidence, defendants would still be deprived of
          their interest in repose. At some point, defendants should have
          notice of who their adversaries are.


0
    The Committee Note to the 1966 Amendment to the rule advises,

                  The relation back of amendments changing plaintiffs is not
             expressly treated in revised Rule 15(c) since the problem is gener
             easier [than that of amendments changing defendants]. Again the c
             consideration of policy is that of the statute of limitations, and
             attitude taken in revised Rule 15(c) toward change of defendants
             extends by analogy to amendments changing plaintiffs.


                                  10
Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1309 (D.C. Cir. 1982).0   Co

Beddingfield had ample time -- the time dictated by the relevant statute pl

period of time during which the statute was tolled -- in which to file thei

is not disputed that Cocchi and Beddingfield were aware of their right to br

claims.   Nevertheless, they failed to add their names to the complaint until

expiration of the statute of limitations.   They have not demonstrated that t

was due to mistake.

          Although the relation-back rule ameliorates the effect of statutes

limitations, 6A Charles A. Wright & Arthur R. Miller, Federal Practice and

1497, it does not save the claims of complainants who have sat on their righ

Cocchi and Beddingfield seek to take advantage of the rule to perform an end

the statute of limitations that bars their claims.   We will affirm the distr

dismissal of their claims.

                                             V.

          For the foregoing reasons we will affirm the district court's dism

claims of Cocchi and Beddingfield and its order striking the motion to inter

and Zyskowski.




0
 This is not a case where plaintiffs merely sought to substitute a real part
See Staren v. American Nat. Bank & Trust Co., 529 F.2d 1257, 1263 (7th Cir
substitution of such parties after the applicable statute of limitations may
not significant when the change is merely formal and in no way alters the kn
issues on which the action is based."); 6A Charles A. Wright & Arthur R. M
Practice and Procedure § 1501 (1990) (citing cases permitting amendments tha
new plaintiffs to relate back if the added plaintiffs are real parties in in
Advisory Committee Note to the 1966 Amendment to Rule 15 noted the relevanc
17(a), authorizing substitution of real parties in interest, to Rule 15(c).
Committee Note to the 1966 Amendment to Rule 17(a) cautioned that the provis
substitution of plaintiffs should not be "misunderstood or distorted. It i
prevent forfeiture when determination of the proper party to sue is difficul
understandable mistake has been made." Neither condition is met here.


                                11
