APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-1581).
Hunter, Van Dusen and Weis, Circuit Judges.
VAN DUSEN, Circuit Judge.
This is an appeal from an order dismissing a suit by plaintiff, Robert F. Jennings, brought pursuant to 42 U.S.C. § 1983 and § 1985(3).*fn1 Alleging that defendants, acting under color of state law, violated his constitutional rights, plaintiff sought damages and a declaratory judgment that his First, Fourth, Ninth and Fourteenth Amendment rights had been violated. The defendants moved to dismiss pursuant to F.R. Civ. P. 12(b), contending, inter alia, that the suit was barred by the applicable Pennsylvania statute of limitations and, therefore, the action should be dismissed, that the plaintiff had failed to state a claim against defendants which would entitle him to relief under any set of facts which could be proved at trial, and that the defendants were absolutely immune from suit under the doctrine of Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). The district court held that the suit was barred by the applicable statute of limitations and, therefore, dismissed the suit. We reverse insofar as the district court's order relates to the § 1983 claim and the pendent state tort claim, but we hold that the § 1985(3) claim must be dismissed for failure to allege a cause of action under that statute.
The district court's ruling was based solely on the pleadings; therefore, in this procedural posture we take all of the well-pleaded allegations of the complaint as true and construe the complaint liberally in the light most favorable to the plaintiff.*fn2
The facts alleged, though bordering on the bizarre, can be summarized briefly. Essentially, the complaint avers a conspiracy by defendants to bring false criminal charges against the plaintiff and to extort from him his wife, his son, and $150,000.
The plaintiff, in his official capacity as Wayne County Coroner, investigated the death of a patient at the Hillcrest School. The owner of the school was charged with murder, and defendant, Arthur Shuman, Jr., was appointed assistant special prosecutor to prepare and try the murder case. While Jennings and Shuman were working on the case together, Shuman had an affair with Jennings' wife. Shuman then conspired with defendant Robert J. Conway, the Wayne County District Attorney, and defendant Gustave Naring, a police officer, and devised his extortion scheme. In furtherance of Shuman's plan, a criminal complaint charging Jennings with solicitation to commit burglary was sworn out, based on false statements knowingly, intentionally and maliciously made by Naring. Jennings' arrest on this charge, in derogation of the normal procedure, was immediately made known to the local news media. Shuman spearheaded the investigation and prosecution of Jennings on this charge. Conway, who would normally prosecute such a case, in furtherance of the conspiracy, acquiesced in Shuman's actions and, during the pendency of the investigation and prosecution, made an extortionary demand upon Jennings for Jennings to give the conspirators $150,000. and to give up his wife and son to Shuman. In return, Conway promised to "take care of" Jennings at the grand jury proceedings on the charge of solicitation to commit burglary. Presumably, Conway would receive a portion of the $150,000. the defendants sought to extort.
The grand jury failed to return a true bill against Jennings.
In civil rights actions under 42 U.S.C. §§ 1983, 1985, federal courts must ascertain the underlying cause of action under state law and apply the limitation period which the state would apply if the action had been brought in state court. Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974); Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974). The complaint in this case suggests two possible underlying causes of action: malicious use of process (also known as malicious prosecution) having a statute of limitations of one year from the date of termination of prosecution, Pa. Stat. Ann. tit. 12 § 51; Polite v. Diehl, supra ; and malicious abuse of process, subject to the general trespass, two-year statute of limitations. Pa. Stat. Ann. tit. 12 § 31; Funk v. Cable, 251 F. Supp. 598, 600 (M.D. Pa. 1966).*fn3 Jennings brought his action after the statute of limitations for malicious use of process had run, but before the statute of limitations for malicious abuse of process had run. The district court applied the malicious use statute of limitations. We must decide whether the complaint alleges facts sounding in the tort of malicious abuse of process, and, if so, whether this cause of action is so inextricably intertwined with malicious use of process that the shorter statute of limitations should be applied nonetheless.
To determine in which tort, if either, the facts alleged sound requires an examination of both torts and the distinction between them. The defendants contend that the distinction is as follows. If prosecution or process is initiated without probable cause and with a bad motive, malicious use of process lies. If prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law, malicious abuse of process lies. The defendants conclude that, because the complaint indicates that prosecution was not initiated legitimately, only malicious use of process will lie. The plaintiff argues that regardless of whether the initial process is issued with or without probable cause, if it is thereafter used for an unlawful purpose, malicious abuse of process lies.
A review of the authorities supports the plaintiffs' position and establishes that the torts are not mutually exclusive, and that the presence or absence of probable cause ...