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Swietlowich v. County of Bucks and Township of Bristol and Harry Merker and Sgt. Stanley Martin and Sgt. Walter Hughes

decided: December 5, 1979.

HELEN D. SWIETLOWICH, ADMINISTRATRIX OF THE ESTATE OF JOSEPH A. SWIETLOWICH, DECEASED AND HELEN D. SWIETLOWICH, IN HER OWN RIGHT, APPELLANT
v.
COUNTY OF BUCKS AND TOWNSHIP OF BRISTOL AND HARRY MERKER AND SGT. STANLEY MARTIN AND SGT. WALTER HUGHES AND PATROLMAN H. J. MCDONOUGH, APPELLEES



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-1247)

Before Adams, Rosenn, and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

The plaintiff in this civil rights case alleges that compliance by police officers with their duty to look in on prisoners periodically would have prevented her husband's suicide in a jail cell. Following instructions that did not adequately explain that the limitations period may have been suspended if police assertions of vigilance were untrue, the jury found the suit to be time-barred. Because the statute may be tolled for those who ask not and are deceived, as well as for those who are misled after asking, we remand for a new trial.

Plaintiff's decedent, Joseph A. Swietlowich, was arrested at about 2:20 a.m. on February 18, 1973 and charged with operating a motor vehicle while intoxicated. He was taken to the Bristol Township Police Station, Bucks County, Pennsylvania, and lodged in a detention cell. Some three hours later, he was found hanged in his cell, an apparent suicide victim.

The plaintiff, Swietlowich's widow, took no legal action until after a newspaper article published some four years later asserted that the police had falsified records of decedent's confinement. Suit was filed alleging that rights guaranteed by federal civil rights statutes and directly by the Constitution had been violated by the decedent's false arrest and wrongful death, as well as by a conspiracy to deny plaintiff her right to sue on these rights by concealing the circumstances. The federal claims were based on 42 U.S.C. ยงยง 1983, 1985, 1986, and directly under the fifth, eighth, and fourteenth amendments. In addition, plaintiff alleged pendent state claims for negligence. Named as defendants were the county, the township, and four police officers. The county was dismissed as a defendant at an early stage in the litigation and verdicts were directed for two of the defendants.

Soon after suit began, the defendants filed a motion to dismiss based on the statute of limitations. At an evidentiary hearing, although both parties were given the opportunity, only the plaintiff presented evidence, and, thereafter, the motion was denied.

At trial, the plaintiff testified that the police came to her home shortly after her husband's death and said that officers had checked him periodically in his cell. About a week later, the plaintiff and her son went to the police station where they were told that the decedent had been drinking before his arrest, that the officers had looked in on him every half hour or so in his cell, and that they had done everything that they could. As a result of these assurances, plaintiff said she did not pursue any investigation of the death, and only after reading the newspaper article did she believe it necessary to consult a lawyer.

According to testimony at the trial, additions or alterations to the cell check log were made by various officers following discovery of the suicide. The evidence was conflicting as to whether the entries were designed to cover up for failure to make notations in the log when the cell checks were made or to have it appear that the inspections had taken place when, in fact, they had not.

The judge directed verdicts for defendant police officers McDonough and Hughes because of lack of evidence to establish liability. McDonough had arrested the decedent and brought him to the station. This officer also found the decedent hanging in the cell and initialed the log indicating the time when the body was discovered. Hughes, the road supervisor in charge of police at the time, was not shown to have had any connection with the arrest, incarceration, or entries in the log.

The case went to the jury as to the liability of Bristol Township, Police Chief Merker, who came to the station after the death and supervised the log entries, and Sergeant Martin, the shift commander in charge of the station on the night in question. During its deliberations, the jury asked for further instructions on four occasions, two of them referring specifically to the statute of limitations, before returning with their answers to special interrogatories finding that the police records had been fraudulently altered and that the suit was "barred by the statute of limitations." Judgment was accordingly entered for the remaining defendants and plaintiff's motion for a new trial was denied.

The plaintiff contends that the court's charge on the statute of limitations was inadequate and that the deficiency was accentuated when the court did not fully answer the jury's request for additional instructions. The interrogatories, submitted despite plaintiff's objections that their language did not cover all issues, are also said to have been confusing rather than helpful. In addition, plaintiff argues that the judge's ruling on the statute of limitations in denying the motion to dismiss foreclosed any further consideration of that question.

Since the Civil Rights Acts contain no statute of limitations, we look to that of the state in which the incident occurred. Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc). In Pennsylvania, the limitations at the time of the occurrence were one year for false arrest, one year for wrongful death, and two years for the survival action.

When borrowing a state period of limitations in a civil rights case, a federal court will also adopt the state's exceptions thereto as long as policies underlying the federal cause of action are not undermined. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464-65, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975). Whenever suit is filed after the limitations period, as it had ...


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