The opinion of the court was delivered by: SOFAER
These actions are brought by a mother and her nine-year-old son against New York child-welfare and foster-home personnel. In the mother's suit, Thorn v. New York City Dep't of Social Services, 81 Civ. 2543, defendants have moved to dismiss plaintiff's federal civil rights claims and pendent state claims as time-barred.
Alternatively, the individual municipal defendants seek summary judgment on the merits. Defendants' motion to dismiss is granted only insofar as it relates to plaintiff's state claim for intentional infliction of emotional harm. All of defendants' other motions in Thorn are denied. In Bethea v. New York City Dep't of Social Services, 81 Civ. 2760, brought on behalf of the child, defendants have moved pursuant to Rule 12(b)(6) to dismiss; all those motions are denied.
Plaintiffs allege that in 1974, plaintiff Thorn placed her son, Stanley Bethea, in temporary foster care with defendant New York City Department of Social Services ("DSS") pursuant to a written agreement with DSS. DSS in turn contracted with defendant St. Vincent's Hall, Inc., to provide care and supervision for the child. Mrs. Thorn subsequently moved to Philadelphia. Her son remained in foster care until September 16, 1977. Stanley then rejoined his mother in Philadelphia, and stayed with her for thirty-five days. On October 21, 1977, defendant Hatton (a St. Vincent's caseworker) went to Philadelphia and without either plaintiff's consent and over Mrs. Thorn's objections removed the child from his mother and returned him to New York, where he was placed in a foster home. Defendants allegedly detained the child illegally for six months. During that period, Mrs. Thorn and her attorney made repeated requests that the boy be returned. Defendants allowed Stanley to stay with his mother temporarily as of April 18, 1978. On May 18, 1978, the New York City Family Court ordered that the child be permanently returned to Mrs. Thorn's custody.
Mrs. Thorn commenced her suit on October 14, 1980, in the United States District Court for the Eastern District of Pennsylvania. She alleged that defendants' removal and detention of her son violated her constitutional rights, 42 U.S.C. § 1983 (1976), and was tortious under state law. Municipal defendants (DSS, Bernstein, and Sanders) filed a Rule 12(b)(3) motion, arguing alternatively that venue was improper under 28 U.S.C. § 1391(b) (1976), and that a forum non conveniens transfer was appropriate under 28 U.S.C. § 1404(a) (1976). The district judge ruled that venue did lie in the Eastern District of Pennsylvania, but nevertheless granted a transfer to this Court under § 1404(a). Thorn v. New York City Department of Social Services, No. 80-4032, (E.D.Pa. March 20, 1981) (Memorandum & Order).
Plaintiff Bethea originally commenced his suit in the Supreme Court of the State of New York, County of New York, on April 17, 1981. He alleged that defendants' actions violated his rights under the constitutions of the United States and the State of New York, and violated certain statutory obligations defendants owed to him under state law. Further, Bethea alleged that defendants' conduct was tortious, and breached contractual obligations owed to him as third-party beneficiary of the alleged contract for foster care entered into by his mother and defendant DSS. Defendants petitioned this Court for removal of the action on the basis of federal-question jurisdiction, and plaintiff did not oppose removal.
A. Timeliness of the Section 1983 Claims
Thorn was transferred to this Court pursuant to § 1404(a). Consequently, in determining the timeliness of Mrs. Thorn's section 1983 claims, this Court must resolve the issue as it would have been resolved by the original forum, the Eastern District of Pennsylvania. Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805, 820, 11 L. Ed. 2d 945 (1964).
Because section 1983 contains no statute of limitations, a federal court must apply the most appropriate statute of limitations "of the State wherein the court having jurisdiction of such ... cause is held." 42 U.S.C. § 1988 (1976); Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S. Ct. 1790, 1794-95, 64 L. Ed. 2d 440 (1980); Pauk v. Board of Trustees, 654 F.2d 856 at 861 (2d Cir. 1981). The parties agree that the most appropriate Pennsylvania statute of limitations should govern.
They disagree about which of Pennsylvania's statutory provisions is most appropriate.
Unlike New York, which has adopted a single limitations period held applicable to all section 1983 actions, Pauk v. Board of Trustees, supra, Pennsylvania does not have a statutory provision expressly or impliedly applicable to such claims. Accordingly, "(selection) of the appropriate forum state statute of limitation requires characterization of the essential nature of the federal claim within the scheme created by the various state statutes of limitation." Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir. 1978). Pennsylvania law specifies particular limitations periods for various types of actions; if an action is not subject to one of these particular limitations, then the residual six-year period applies. 42 Pa.Con.Stat.Ann. § 5527(6) (Purdon Supp.1981). Thus, the issue is not as defendants perceive it into which of the particular provisions this action can be pigeonholed, but rather, whether any of the shorter provisions can fairly be said to apply; if not, the residual period governs.
Defendants invoke Pennsylvania's two-year limitations provision:
The following actions and proceedings must be commenced within two years:
(1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.
(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
42 Pa.Con.Stat.Ann. § 5524 (Purdon Supp.1981) (PP (3)-(6) omitted).
Determining whether this provision applies depends on the essential nature of Mrs. Thorn's section 1983 grievance, and finding its closest analogue in state law. The Third Circuit, whose precedents bind us under Van Dusen, directs that, in characterizing the essence of the federal claim, "we look to the complaint's factual allegations concerning defendant's conduct and plaintiff's injury and its requested relief." Davis v. United States Steel Supply, supra, 581 F.2d at 338. The complaint alleges two types of violations under section 1983: a denial of procedural due process, ...