                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2005

Getchey v. Northumberland
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1693




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"Getchey v. Northumberland" (2005). 2005 Decisions. Paper 1575.
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                                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                      No. 04-1693


                                 BARRY GETCHEY,
                                     Appellant

                                            v.

                         COUNTY OF NORTHUMBERLAND


                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 03-CV-0826)
                    District Judge: The Honorable James F. McClure

                                    ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 17, 2004

                                 (Filed: January 6, 2005)

                   Before: NYGAARD and GARTH, Circuit Judges.
                            and POLLAK,* District Judge.

                                    ______________

                              OPINION OF THE COURT



      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.

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                                      ______________


POLLAK, District Judge.




         In this case, we are asked to review dismissal of a complaint filed by Barry

Getchey against the County of Northumberland. Judge James F. McClure of the United

States District Court for the Middle District of Pennsylvania dismissed Getchey’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that the

statute of limitations had run on the injuries alleged therein. This court exercises plenary

review over a district court’s grant of a motion to dismiss, see, e.g., City of Pittsburgh v.

West Penn Power Company, 147 F.3d 256, 262 n.12 (3d Cir. 1998). For purposes of such

review, all allegations contained in the complaint are accepted as true, see, e.g.,

Morganroth & Morganroth v. Norris, McLaughlin, & Marcus, P.C., 331 F.3d 406, 408

(3d Cir. 2003). For the reasons expressed below, we affirm the ruling of the District

Court.




                                              II.

         Getchey maintains that, on January 20, 1956, when he was twelve years old, he

was convicted of truancy from school by Alderman B. Lee Morgan of the Court of

Common Pleas of Northumberland County, Pennsylvania. Getchey was sentenced for a



                                               2
period of ten days, beginning on January 20, 1956, to the Northumberland County Prison,

an adult correctional facility. At that time, the Northumberland County Prison did not

have facilities for juveniles. Getchey was thus placed among the adult inmates.

       During his incarceration, Getchey, so he alleges, was sexually assaulted by two

other inmates on at least five separate occasions. These inmates allegedly told Getchey

that, if he reported the incidents, he would be harmed and “sent to the ‘dungeon’”

(Complaint ¶ 20). Despite these threats, Getchey reported the attacks to Paul Dungar,

warden of the prison at the time. Warden Dungar allegedly told Getchey to say nothing in

order to avoid taunting from other children and embarrassment to his mother (Id. at ¶ 21).

Without further recourse, Getchey repressed memories of the assaults, apparently until

very recently (Appellant’s Br. at 7).

       Upon emergence of these memories, Getchey filed a complaint against the County

of Northumberland, alleging three counts – negligence for failing to prevent adult inmates

from assaulting plaintiff (Count I); vicarious liability for the actions undertaken by the

County’s agents, servants, and employees, including Alderman Morgan and Warden

Dungar, who allegedly acted within the scope of their employment and directly and

proximately caused plaintiff’s injuries (Count II); and punitive damages for the county’s

allegedly malicious, deliberate, intentional, willful and wanton conduct toward plaintiff

(Count III). The District Court construed Getchey’s complaint as being brought under 42

U.S.C. §§ 1983 and 1985(3).



                                              3
       The County moved to dismiss Getchey’s complaint for failure to state a claim upon

which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

Specifically, the County argued that Getchey’s claims were time-barred. The District

Court agreed, finding that the statute of limitations for § 1983 and § 1985(3) claims,

which it appropriately borrowed from Pennsylvania state law, is two years, and so had

long since expired. Judge McClure further found that Getchey’s repression of the

memories of the assault did not provide grounds to toll the statute of limitations. Judge

McClure approvingly cited Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997), a

Pennsylvania Supreme Court case holding that repressed memory syndrome does not

constitute an appropriate ground upon which to toll the statute of limitations. In response

to Getchey’s argument that equity mandated tolling due to the County’s fraudulent

concealment, Judge McClure found that no concealment had occurred. While Getchey

may have been dissuaded from reporting his assaults, Judge McClure observed, Warden

Dungar did not deny their occurrence – a prerequisite for fraudulent concealment, see

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). Judge

McClure concluded that dismissal of the complaint was warranted. This timely appeal

followed.




                                            III.

       Because neither 42 U.S.C. § 1983 nor § 1985(3) contains a statute of limitations,



                                             4
“federal courts must look to the statute of limitations governing analogous state causes of

action,” Urritia v. Harrisburg County Police Department, 91 F.3d 451, 457 n. 9 (3d Cir.

1996); see also Samerie Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d

Cir. 1998).

       In determining which state limitations period to use in federal civil rights
       cases, we look to the general, residual statute of limitations for personal
       injury actions. See Wilson v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d
       254, 105 S. Ct. 1938 (1985). We must also incorporate any relevant state
       tolling rules. See Hardin v. Straub, 490 U.S. 536, 543-44, 104 L. Ed. 2d
       582, 109 S. Ct. 1998 (1989). Thus, for § 1983 and § 1985 actions
       originating in Pennsylvania, we look to 42 Pa. C.S. §§ 5524.


Lake v. Arnold, 232 F.2d 360, 368 (3d Cir. 2000) (applying the Pennsylvania two-year

statute of limitations to a claim alleging violation of plaintiff’s federal civil rights as a

result of her forced sterilization, performed pursuant to a policy of sterilizing the mentally

retarded). Section 5524 provides a two-year statute of limitations to personal injury

claims like Getchey’s.1




       1
        Appellant and appellee cite 42 Pa. C.S.A. § 5533 in addition to § 5524. Section
5533 provides that, “if an individual entitled to bring a civil action arising from childhood
sexual abuse is under 18 years of age at the time the cause of action accrues, the
individual shall have a period of 12 years after attaining 18 years of age in which to
commence an action for damages… .” This section is inapplicable for two reasons. First,
as appellees note, this tolling provision did not become effective until 1984; it “cannot
revive a cause of action which accrued and expired [twenty-eight years] prior its effective
date,” when Getchey’s injuries occurred. Dalrymple v. Brown, 701 A.2d 164, 166 n.3 (Pa.
1997). Second, even if the minority provision were in effect at the time of Getchey’s
assaults, it would still fail to excuse his delay since his thirtieth birthday – the deadline
that section 5533 stipulates – has long since passed.

                                                5
       Notwithstanding the more than four decades lapse of time since Getchey’s injuries,

he argues that the statute of limitations should be tolled under either Pennsylvania’s

discovery rule or the federal doctrine of equitable tolling.




       a. The Discovery Rule

       “The discovery rule provides that where the existence of the injury is not known to

the complaining party and such knowledge cannot reasonably be ascertained within the

prescribed statutory period, the limitations period does not begin to run until the discovery

of the injury is reasonably possible.” Murphy v. Diogenes Saavedra, M.D., P.C., 746 A.2d

92, 94 (Pa. 2000). Whether the discovery rule applies in cases of repressed memory is a

question of state law. See Federal Home Loan Mortgage v. Scottsdale Insurance Co., 316

F.3d 431, 443 (3d Cir. 2003) (“[Federal courts] are not free to impose [their] own view of

what state law should be; [they] are to apply state law as interpreted by the state's highest

court.”); National Surety Corp. v. Midland Bank, 551 F.2d 21 (3d Cir. 1977) (“State law

as announced by the highest court of the State is to be followed. This is not a diversity

case but the same principle may be applied for the same reasons, viz., the underlying

substantive rule involved is based on state law and the State's highest court is the best

authority on its own law.”).

       In Dalrymple v. Brown, 701 A.2d 164, 166 n.3 (Pa. 1997), the Pennsylvania Supreme

Court considered whether the discovery rule ought to toll the statute of limitations where



                                              6
repressed memory syndrome prevented the victim of sexual abuse from discovering her

injuries until some thirty years after they had occurred. The court declined to extend the

discovery rule to cases of repressed memory, stating that “[t]he very essence of the discovery

rule in Pennsylvania is that it applies only to those situations where the nature of the injury

itself is such that no amount of vigilance will enable the plaintiff to detect an injury,” and

finding that battery is not such an injury since “in a typical battery, all the elements of the

offensive touching will be present and ascertainable by the plaintiff at the time of the

touching itself.” Id. at 170. The court defended its decision on policy grounds, arguing that

a reasonable person approach to the discovery rule “allows for equity in protecting those

parties who could not, through the exercise of reasonable diligence, know they were injured

and simultaneously protects the tortfeasor from being faced with stale claims that, due to the

passage of time and the fading of memory, may be indefensible.” Id. at 170

           The Dalrymple decision is dispositive here.2 See Federal Home Loan Mortgage,

316 F.3d at 443. While Getchey may have repressed memories of the assaults, the

Dalrymple reasoning precludes us from using the repression as an excuse since it is not

the case that “no amount of vigilance” would have enabled Getchey to uncover the

injuries. 701 A.2d at 170. After all, Getchey was surely aware of these as they were



       2
        As such, the precedents Getchey cites from jurisdictions where the discovery rule
has been extended to cases of repressed memory are irrelevant; Getchey’s invitation to
this court to join these other jurisdictions is thus one that we are not in a position to
accept.


                                              7
occurring. See id. Indeed, we know that this awareness must have persisted at least in the

short term, for Getchey obviously possessed knowledge of the attacks at the time that he

reported them to Warden Dungar. Since what matters in Pennsylvania for the purpose of

applying the discovery rule is whether a reasonable person could have discovered the

injury within the statute of limitations, and not whether the plaintiff in fact did so, and

since Getchey could have, and indeed did, discover his injuries within that time, the

discovery rule ought not to apply to him.




       b. Equitable Tolling

       Equitable tolling is appropriate in three situations:

       (1) where a defendant actively misleads a plaintiff with respect to her cause
       of action; (2) where the plaintiff has been prevented from asserting her
       claim as a result of other extraordinary circumstances; or (3) where the
       plaintiff asserts her claims in a timely manner but has done so in the wrong
       forum.

Lake, 232 F.3d at 370 n.9. Getchey argues that his case is like the first situation in which

equity mandates tolling the statute of limitations.

       More specifically, Getchey argues that Warden Dungar misled Getchey by telling

him that he would humiliate himself and his mother were he to report the attacks to

anyone else. Yet, however unresponsive Warden Dungar may have been, he did not

mislead Getchey with respect to the availability of a cause of action because Warden

Dungar never denied that the injuries occurred. Since the first situation under which



                                               8
equitable tolling is appropriate requires the plaintiff to have been misled about the

availability of a cause of action, the first situation does not extend to Warden Dungar’s

conduct. Thus, Getchey’s argument that equitable tolling is appropriate here is not

persuasive.




                                                  IV.

       Neither the discovery rule nor the federal doctrine of equitable tolling provides

grounds for tolling the statute of limitations in this case. As such, Getchey’s case is time-

barred and the decision of the District Court is AFFIRMED.3




       3
        Because we reach this decision on statute of limitations ground, we need not
consider appellee’s argument that Getchey has failed to state a cognizable federal civil
rights claim.


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