Petition for Writ of Certiorari — Koehnke v. City of McKeesport

Supreme Court, U.S.

FILED

No. 091030 FEB22 2010

INTHE OFFICE OF THE CLERK

Supreme Court of the WHnited States

SHERRI KOEHNKE, PETITIONER

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

SHERRI KOEHNKE

pro se

228 Woodhill Road

West Mifflin, PA 15122

412 466-2315

G6800Caol.com

CURRY & TAYLOR @ 202-393 4141

BEST AVAILABLE COPY

F

QUESTION PRESENTED

What is the proper test for computing the date

when a cause of action arises for which the statute of

limitations begins to run?

a2

TABLE OF CONTENTS

Pag

QUESTION PRESENTED..............-2.000-00++s

TABLE OF AUTHORITIES. ...........cccc.cecccceccocccecscecees

OPINIONS BELOW

RE eae a Sa

RELEVANT PROVISIONS INVOLVED ................

EE ER ee a ne

>) » Oe

APPENDIX

Se cinneniouenipbtionniansiniaidisanmtiogapaiill |

District Court Decision .......2...22.cccee000- Saline endian ‘

Order Denying Rehearing ............ cibsplidiaectiindionnindiiiclaisiemsalaaae

141

TABLE OF AUTHORITIES

Page

CASES

ACTION OF PENNSYLVANIA V. SE. PENNSYLVANIA

TRANSP. AUTH., 539 F.3D 199, 209 (3D CIR. 2008)................ 9

AMINI V. OBERLIN COLLEGE, 259 F.3D 493, 500 (6TH

RE cer ce ao eRe eRe ON ey a 7

CONNORS V. HALLMARK & SON COAL Co., 290 U.S.

APP. D.C. 170, 935 F.2D 336, 341-42 (D.C. Crm. 1991)......... 10

CUPPY V. GEN. ACCIDENT FIRE & LIFE ASSURANCE

CORP., 378 S.W.2D 629, 630-31 (KY. 1964) 20000 eee 13

FAHRNER V. SW MFG., INC., 48 S.W.3D 141, 143

ICSE SPT OE SRR NOS cE, ee 14

FRATUS V. DELAND, 49 F.3D 673, 675 (10TH + S| jo 8

GENTY V. RESOLUTION TRUST CORP., 937 F.2D 899,

RRR NR Ic te on sno I ~

HAZEL V. GENERAL MOTORS CORP., 863 F.SUPP. 435,

Se fC eS ee ee 13

HOLLANDER V. BROWN, 457 F.3D 688, 692-93 (7TH

a sienna pe,

HOLMIN V. TRW, INC., 330 N.J. SUPER. 30, 748 A.2D

1141, 1145(N.J. SUPER. CT. APP. DIV. 2000) ....0000.0...0.200222- 15

HURT V. GARRISON, 1942 OK 239, 192 OKLA. 66, 133

a a esidiingisiniginennennte 14

INDUS. CONSTRUCTORS CORP. V. UNITED STATES

BUREAU OF RECLAMATION, 15 F.3D 963, 969 (10TH

eI AEs tae POE ae REE re EI, SO a eat

JARVIS V. CITY OF STILLWATER, 1987 OK 5, 732 P. 2D

8 BI rE ee eNO nN ce 14

KNOX COLL. V. CELOTEX CORP., 88 ILL. 2D 407, 430

N.E.2D 976, 980-81, 58 ILL. DEC. 725 (ILL. 1981)................ 12

KRS § 413.190(2). SEE MUNDAY V. MAYFAIR

DIAGNOSTIC LAB., 831 S.W.2D 912, 914 15..20.000000000222 13

Pl gg fy NCES... SEER Se Ree 13

MULLINAX V. MCELHENNEY, 817 F.2D 711, 716 (11TH

NE, ESERIES 2c ee ae a ae ee s

RIDDELL V. RIDDELL WASHINGTON CORP., 275 U.S.

Ww

APP. D.C. 362, 866 F.2D 1480, 1491 (D.C. CIR. 1989) .......... 10

ROBERSON V. TENNESSEE, 399 F.3D 792, 794 (6TII

Fe FERRIER ree Eee ne ar aS eee ce eS AE aD Co 7

ROSENAU V. CITY OF NEW BRUNSWICK, 51 N.J. 130,

eR Be | a ee Ee 14,15

RUSSO FARMS, INC. V. VINELAND BD. OF EDUC., 144

N.J. 84, 675 A.2D 1077, 1083-84 (NJ. 1996) ........ Pen RE 15

RUTLEDGE V. BOSTON WOVEN HOSE & RUBBER Co.,

yD gb BT py Le | Lp: | Senne 1i

SAMERIC CORP. V. CITY OF PHILADELPHIA, 142 F.3D

ee I FO UI cin ccienscicantihdainiociaieicnnsiesinniscnieoeiiapbtaniesiianings let 9

SEVIER V. TURNER, 742 F.2D 262, 272-73 (6TH CIR.

Re Ae eae eet ee CREE eA TEMES RR DENT 12,14

SMITH V. NIXON, 196 U.S. APP. D.C. 276, 606 F.2D

Es ete ois: SD sine ccccindicnicerannensebnaiiieininabaitidliageiniionns 11

SUPERIOR BANK FSB V. COLDING, 152 ILL. 2D 480,

605 N.E.2p 514, 518, 178 ILL. DEC. 720 (ILL. 1992) -........... 12

UNITED STATES V. KUBRICK, 444 U.S. 111, 117, 1008.

COR, BR ae he SP. SP aD ecncccthrrectinccrcesecicwenpicvecersonnis 7,9

UNITED STATES V. LOCKE, 471 U.S. 84, 94N. 10, 105

S.CT. 1785, 1792 N. 10, 85 L.ED.2D 64 (1985)...............c-ccccceees 7

WALLACE V. KATO, 549 U.S. 384, 387, 1275S. CT. 1091,

Oe __ : RNy MEN Er err meiner rm riorn re eM nmnENENI 3

WASHINGTON V. UNITED STATES, 769 F.2D 1436,

a 10

WILSON V. EL-DAIEF, 600 PA. 161, 964 A.2D 354, 361-

ft gt en enneen distuancienteentoniodduaindabteddiatdsamaneaiate 13

STATUTES

i OP NII iss cerns ioe sbatuiahiannptniiinbessennce inlomnaieaeemaeamammaaail J

gf ge Me Bg f+: Ree crm Tear PEE AY 2,3

a Re a I crnictidisinerssvioninpiscteninctaptaainainindaiciabimionnanamaiaaae i

]

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Third Circuit is reported at 2009 U.S.

App. LEXIS 23841 (8™ Cir. October 27, 2009). The

opinion of the United States District Court for the

Western District of Pennsylvania is reported at 2008

U.S. Dist. LEXIS 86894 WD PA 2008).

JURISDICTION

The decision of the United States Court of

Appeals for the Third Circuit, affirming the decision of

the district court’s Order, was handed down on October

27, 2009. A timely Petition for Rehearing was Denied

on November 23, 2009. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

42 USCS § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or

other proper proceeding for redress, except that

in any action brought against a judicial officer for

an act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted

1a Pp

42 Pa.

2

unless a declaratory decree was violated oF

declaratory relief was unavailable. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Columbiz

shall be considered to be a statute of the District

of Columbia.

Con. Stat § 5524(2):

§ 5524. Two year limitation

The following actions and proceedings must be

commenced within two years:

(1) An action for assault, battery, fals:

imprisonment, false arrest, malicious prosecutio!

or malicious abuse of process.

(2) An action to recover damages for injurie

to the person or for the death of an individuz

caused by the wrongful act or neglect O

unlawful violence or negligence of another.

(3) An action for taking, detaining or injurin;

personal property, including actions for specifi

recovery thereof.

(4) An action for waste or trespass of re:

property.

(5) An action upon a statute for a civil penalt?

or forfeiture.

(6) An action against any officer of an

government unit for the nonpayment of mone

or the nondelivery of property collected upon o

execution or otherwise in his possession.

(7) Any other action or proceeding to recove

damages for injury to person or property whic

is founded on negligent, intentional, or otherwi?

‘>

«J

tortious conduct or any other action or

proceeding sounding in trespass, including deceit

or fraud, except an action or proceeding subject

to another limitation specified in this subchapter.

STATEMENT

This appeal involves the determination, by the

district court, of the date upon which the statute of

limitations on the Petitioner’s civil rights case began to

run. Because this action was filed more than two years

after the date, as calculated by the district court, it held

that the claims of the Petitioner were time-barred, and

dismissed the Petitioner’s case on that basis.

The Third Circuit has held that the length of the

statute of limitations for a § 1983 claim is governed by

the personal injury tort law of the state where the

127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007). The statute of

limitations for a § 1983 claim arising in Pennsylvania is

two years. 42 Pa. Cons. Stat. § 5524(2). The central

question, in this case, is the determination of what date

started the running of that two-year period.

On February 10, 1996, Tanya Kach, the daughter

of the Petitioner, left the home of her father, with

whom she had been living, and was not seen again, by

the Petitioner, until March of 2006.'

Less than one year prior to the filing of this

action, the Petitioner discovered that shortly after

' Tanya’s father waited four days to te}l the Petitioner that their

daughter was missing.

4

Tanya disappeared, members of the McKeesport Police

Department had gone to the home of one Thomas Hose*

to see if Tanya was there.?*

She was - and she was able to hear the exchange

between Hose and the officers, when he told them to go

away, because he claimed that his parents were

sleeping. The officers complied with his wishes, and did

not return with a search warrant on that, or on any

other day. Had they promptly done so, they would

have found Tanya, who was a distance of only several

feet from that door at the time, and the Petitioner

would have been spared ten years of indescribable

misery over what. she thought was the death of her only

child.

Upon the filing of the Amended Complaint, the

Defendants filed a pleading entitled "Motion to Dismiss

or, in the Alternative, Motion for Summary Judgment."

In support of that Motion, they attached nineteen

Exhibits that had been obtained during discovery in a

related case involving Tanya. No discovery was ever

conducted in the present case.

The Petitioner was forced to argue in opposition

to that Motion without the benefit of having had the

opportunity to conduct any discovery, a fact that was

acknowledged by the District Court Judge in Footnote

2 Thomas Hose, a janitor in Tanya’s school, was sent to prison over

his involvement in this matter.

3 The Petitioner brought this case less than one year from the date

she discovered she had a valid cause of action. Because she could

not have discovered this until after Tanya was found and became

communicative, she could not otherwise have been reasonably

appraised that her causes of action existed until that time.

-

)

1 of his Memorandum and Opinion, attached hereto as

part of the Appendix.

Thus, although discovery would have shown the

time and circumstances under which the Petitioner

actually received the information that gave rise to her

knowledyve of her specific cause of action, she never had

a chance to demonstrate that to the district court

because of its premature entry of the Summary

Judgment.

The Petitioner contends that Tanya’s re

emergence, in and of itself, did not start the running of

the statute of limitations in her case. There is nothing,

on record, to show that Tanya was at the home of

Thomas Hose the entire time she was missing.

Further, because of the district court’s Order, the

Petitioner was deprived of the opportunity to place, on

the record, the time and circumstances under which she

became aware of the actions of the defendants that

gave rise to her cause of action. That opportunity

would have shown the district court the date on which

the Petitioner’s statute of limitations had really begun

to run, and would have precluded the dismissal of the

Petitioner’s case on statute of limitations grounds.

Discovery would have borne out the first time

that the Petitioner could have learned of the

defendants’ wrongdoing, thus giving rise to her cause of

action. The reasoning of the district court, affirmed by

the court of appeals, is far from correct, because

discovery would have revealed that the Petitioner could

never possibly have learned of her cause of action until

6

the time that the Amended Complaint says that sh

did. *

In addition, had discovery been permitted, th

district court would have learned that the Petitione:

after the “found” Tanya had come to live with her, wa

advised not to inquire about what had happened at th

home of Thomas Hose durmg her period of captivit:

Rather, the counselor who was treating Tanya had to]

the Petitioner that she would eventually learn details «

Tanya’s time with Hose, when, and only when Tany

was ready to talk about them, and not before.

Thus, the time in which the Petitioner shou

have reasonably been made aware of when her cause

action existed came months after the date of h

daughter’s re-emergence.

This Petition seeks to have the Court review t!

issue of when the Petitioner should reasonab

discovered that her cause of action existed, and

standardize the variations of the “discovery rule” thi

exist among the various Circuits, both on the feder

and the state court levels.

REASONS FOR GRANTING THE PETITION

This Court has held that Statutes of Limitati

represent “a pervasive legislative judgment that it

* Paragraph 37 of the Amended Complaint avers “it was during {

pendency of the aforementioned other case that the Plaintiff fou

out about this failure of McKeesport Police to search the home

Thomas Hose less than one year prior to the filing of this acti

was never denied anywhere in the district court record.

i

unjust to fail to put the adversary on notice to defend

within a specified period of time, and that the right to

be free of stale claims in time comes to prevail over the

right to prosecute them." United States v. Kubrick, 444

U.S. 111, 117, 100 8. Ct. 352, 62 L. Ed. 2d 259 (1979).

In hight of this statement, can it be said that the

date that the Petitioner filed her action was “unjust” to

the defendants sued by her and that her claims were

stale? The answer to that question is a resounding

bis

“no.”

This Court has also held that statutes of

limitations are subject to equitable tolling. United

States v. Locke, 471 U.S. 84, 94 n. 10, 105 S.Ct. 1785,

1792 n. 10, 85 L.Ed.2d 64 (1985). Such an instance

might be found to exist in the present case.

The general question that relates to this case is

framed in a case decided by the Sixth Circuit, when it

held that a plaintiff has reason to know of his injury

when he should have discovered it through the exercise

of reasonable diligence. Roberson v. Tennessee, 399

F.3d _ 792, 794 (6th Cir. 2005). Thus, the Sixth Circuit

reasoned that a plaintiffs action accrues when he

discovers that he has been injured, not when he

determines that the injury was unlawful. Amini v.

Oberlin College, 259 F.3d 493, 500 (6th Cir. 2001).

> Indeed, the same defendants had been defending a case brought

on behalf of the Petitioners daughter, that had been brought

sometime before, and that was still pending, thus making the facts

relied upon by the Petitioner anything but stale.

8

More closely akin to the position advanced by

the Petitioner, the Eleventh Circuit has held that a {

1983 claim accrues, and its statute of limitations begins

to run, when "facts which would support a cause 01

action are apparent or should be apparent to a persor

with a reasonably prudent regard for his rights.;

Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cin

1987). This statement appears to be in conflict with thi

holding of the Amini case.

The Tenth Circuit weighs in on this issue b;

holding that in general, under the federal discover;

rule, claims accrue and ‘{t]he statute of limitation’

begins to run when the plaintiff knows or has reason t

know of the existence and cause of the injury which }

the basis of his action.” Indus. Constructors Corp. ¥

United States Bureau of Reclamation, 15 F.3d 963, 96

(10th Cir. 1994). In particular, "[a] civil rights actio’

accrues when facts that would support a cause of actic

are or should be apparent." Fratus v. Deland, 49 F.3

673, 675 (10th Cir. 1995). In light of the silence of bot!

her daughter and those she sued, there is no way th?

the Petitioner could have learned of the existence of he

cause of action until she did — less than one year prior t

the date that she filed her case.

The Third Circuit, from which this the prese1

case arises, is more restrictive than the Tenth a

Eleventh Circuits. It has held that Federal la

governs a cause of action's accrual date. Gent

Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 199)

Under federal law, a cause of action accrues, and tl

statute of limitations begins to run, "when the plaint:

knew or should have known of the injury upon which i

action is based.” Sameric Corp. v. City of Philadelphi

9

142 F.3d 582, 599 (8d Cir. 1998). This is more

restrictive in that the plaintiff is required only to know

of the injury, and not the time in which the cause of that

injury has also been discovered. The conflict between

circuits demonstrated by this holding should be

resolved by this Court.

The Third Circuit also holds that under the

discovery rule, a “cause of action accrues ‘when the

plaintiff discovers, or with due diligence should have

discovered, the injury that forms the basis for the

claim." Disabled in Action of Pennsylvania v. Se.

Pennsylvania Transp. Auth., 539 F.3d 199, 209 (3d Cir.

2008) (quoting Romero v. Allstate Corp., 404 F.3d 212,

222 (3d Cir. 2005)). Under the injury rule, a cause of

action accrues at the time of the injury.

Further, this very Court has held that as a

gencral matter, a cause of action accrues at the time of

the last event necessary to complete the tort, usually at

the time the plaintiff suffers an injury. United States v.

Kubrick, 444 U.S. 111, 120, 100 S. Ct. 352, 62 L. Ed. 2d

259 (1979).

The Petitioner has demonstrated that she could

not have known that she had a cause of action until

months after her daughter had been found, because it

took that long for Tanya to open up to her mother about

some of what had occurred during her period of time

with Thomas Hose. It is this kind of situation that was

contemplated by the Ninth Circuit, when it held, in one

particular case, that that plaintiffs claim had accrued

when a comatose patient died, rather than when she fell

into a years-long coma, because the plaintiff was never

aware of her injury or its cause. Washington v. United

10

States, 769 F.2d 1436, 1438-39 (9th Cir. 1985). Again

this case presents a conflict with the Third Circuit’:

interpretation of when a cause of action accrues.

The DC Circuit’s holding also conflicts with thi

Third Circuit when it supports the Petitioner’s positio;

that her cause of action was not time-barred, when i

pointed out that in federal courts "the general rule ¢

accrual" in cases in which the injury is “not of the sor

that can readily be discovered when it occurs" is that

eause of action accrues and the limitations perio,

begins to run only when "the plaintiff discovers, or wit

due diligence, should have discovered, the injury that 5

the basis of the action." Connors v. Hallmark & So

Coal Co., 290 U.S. App. D.C. 170, 935 F.2d 336, 341-4

(D.C. Cir. 1991).

Further, the DC Circuit held that to prevail on

statute of limitations defense, a defendant must sho]

that the plaintiff had "something closer to actual notic

than the merest inquiry notice that would be sufficie1

to set the statute of limitations running in a situati

untainted by fraudulent concealment.” Riddell

Riddell Washington Corp., 275 U.S. App. D.C. 362, 8

F.2d 1480, 1491 (D.C. Cir. 1989).

The record, in the present case, does not sho

that the defendants, sued by the Petitioner, ever to

her that they had gone to the home of Thomas Hod

that he had sent them away, and that they had failed

return with a search warrant of his premises in t]

hope of finding her daughter.

In such an instance, it has been held that silen.

does toll the statute of limitations if the defendant h!

11

an affirmative duty to disclose the relevant information

to the plaintiff. Smith v. Nixon, 196 U.S. App. D.C. 276,

606 F.2d 1183, 1190 (D.C. Cir. 1979); Rutledge v. Boston

Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir.

1978). As such, the defendants did not satisfy the

criteria set forth in the Riddell case.

Both the district court and the Third Circuit

erred in their determination of when the Petitioner

was, or should have been on notice, that she had a case

to bring against the defendants that she had sued. In

making these errors, the Petitioner, if this Petition is

Denied, will never be compensated for the misery she

went through, thinking her only child was dead, for ten

years.

REVIEW IS NECESSARY TO RESOLVE THE

CONFLICTS BETWEEN THE CIRCUITS ON THIS

ISSUE

As demonstrated above, many of the

Circuits have different rules as to when the statute of

limitations begins to run on a cause of action. These

differences filter down into various State Courts as

well, shown for some in the following case instances:

In Lllinois the statute of limitations for a

personal-injury claim begins to run “when the plaintiff

discovers, or reasonably could discover" the injury and

cause. Hollander v. Brown, 457 F.3d 688, 692-93 (7th

Yur. 2006).

Illinois has also recognized that courts also have

a discovery rule to protect those who are unaware of

their right to sue, "to encourage the trial of cases on

12

their merits and avoid premature summary dismissals."

Superior Bank FSB v. Golding, 152 Ill. 2d 480, 605

N.E.2d 514, 518, 178 Ill. Dec. 720 (ill. 1992). The

discovery rule delays the accrual of claims until the

plaintiff reasonably should know that he has been

injured and that the injury was wrongfully caused. Id.

A plaintiffs knowledge that his injury was wrongfully

caused does not necessarily mean knowledge of

actionable conduct. Knox Coll. v. Celotex Corp., 88 III.

2d 407, 430 N.E.2d 976, 980-81, 58 Ill. Dec. 725 (IIL

1981). The cause of action accrues and the limitations

period begins to run when “the injured person becomes

possessed of sufficient information concerning his

injury and its cause to put a reasonable person on

inquiry to determine whether actionable conduct is

involved." Jd. In addition, in Illinois, the party seeking

to utilize the discovery rule bears the burden of proving

the date of discovery. In the present case, the

Petitioner never had the chance to do so.

In Tennessee litigation brought under federal

civil rights laws, the statute of limitations begins to run

when the plaintiff knows, or has reason to know

through the exercise of reasonable diligence, of the

injury that is the basis of his action. Sevier _y. Turner,

742 F.2d 262, 272-73 (6th Cir. 1984).

The Third Circuit has held that in cases

involving latent injuries or instances where the causal

connection between an injury and another's conduct is

not apparent, such as in the present matter, the

discovery rule may “toll the statute of limitations until

the plaintiff discovers, or reasonably should discover,

that she has been injured and that her injury has been

13

caused by another party's conduct." Wilson v. E)]-Daief,

600 Pa. 161, 964 A.2d 354, 361-62 (Pa. 2009).

Kentucky has codified the doctrine of fraudulent

concealment through the enactment of KRS §

413.190(2). See Munday v. Mayfair Diagnostic Lab., 831

S.W.2d 912, 914-15, 39 5 Ky. L. Summary 44 (Ky. 1992)

(the statute “is simply a recognition in law of an

equitable estoppel . . . to prevent fraudulent or

inequitable application of a statute of limitations").

When a cause of action mentioned in KRS

413.090 to 413.160 accrues against a resident of this

state, and he, by absconding or concealing himself or by

any other indirect means obstructs the prosecution of

the action, the time of the continuance of the absence

from the state or obstruction shall not be computed as

any part of the period within which the action shall be

commenced.KRS § 413.190(2). Once the “obstruction” is

removed, a plaintiff has a duty to exercise reasonable

diligence in pursuing his or her claims. See Cuppy v.

Gen. Accident Fire & Life Assurance Corp., 378 S.W.2d

629, 630-31 (Ky. 1964). In order to establish fraudulent

eoncealment, the defendant's action must have

prevented Plaintiff from inquiring into the action, or

eluded Plaintiffs investigation, or otherwise mislead

the Plaintiff. Hazel v. General Motors Corp., 863

F.Supp. 435, 489 (W.D. Ky. 1994) (citizg Burke v. Blair,

349 S.W.2d 836, 837 (Ky. 1961)). However, the plaintiff

is always “under the duty to exercise reasonable care

and diligence to discover whether he has a viable legal

claim," and any fact that should arouse his suspicion is

equivalent to "actual knowledge of his entire claim.” /d.

14

A case that supports the position taken by tl

Petitioner comes from Tennessee, where it was he

that under the discovery rule, a limitations period dox

not commence until "the plaintiff knows or in t

exercise of reasonable care and diligence should knc

that an injury has been sustained as a result |

wrongful or tortious conduct by the defendant

Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 148 (Ten

2001) [Emphasis in the original}: see ies Sevier

Turner, 742 F.2d 262, 272-73 (6th Cir. 1984), which he

that in Tennessee, litigation brought under federal cis

rights laws, the statute of limitations begins to rl

when the plaintiff knows, or has reason to knq

through the exercise of reasonable diligence, of ti

injury that is the basis of his action.

In Oklahoma, the discovery rule tolls the statu

of limitations "until an injured party knows of, or in t!

exercise of reasonable diligence, should have known

or discovered the injury, and resulting cause of actic

Therefore, if defendants engage in "false, fraudulent |

misleading conduct" calculated to lull plaintiffs ir

sitting on their rights, the limitations period may not]

triggered. Jarvis v. City of Stillwater, 1987 OK 5, 7%

P.2d 470, 473 (Okla. 1987); see also Hurt v. Garris?

1942 OK 239, 192 Okla. 66, 133 P.2d 547, 550 (194

holding a statute of limitations tolled during a period

fraudulent concealment.

The New Jersey Supreme Court has “identif,

the acerual of [a] cause of action as the date on wh

‘the right to institute and maintain a suit’ first aros

Rosenauv_v. City of New Brunswick, 51 N-J. 130,

A.2d 169, 172 (N.J. 1968). "That phrase refers to {

‘combination of facts or events which perm

15

maintenance of a lawsuit; the time of occurrence of the

last of these requisite facts is thereby made the critical

point of [the] inquiry.” Russo Farms, Inc. v. Vineland

Bd. of Educ., 144 N.J. 84, 675 A.2d 1077, 1083-84 (N.J.

1996). A cause of action will therefore be said to have

accrued only at the time all of its elements have

occurred. See Rosenau, 238 A.2d at 172-74 (explaining

that a cause of action "grounded on negligent injury or

damage to person or property .. . accruec|s] not when

the negligence itself took place but when the

consequential injury or damage occurred," and finding

that plaintiffs could institute an action many years after

the negligent act, the improper manufacture of a water

meter, because only when the meter broke was the

plaintiffs’ property damaged); see also Holmin v. TRW,

Inc., 330 NJ. Super. 30, 748 A.2d 1141, 1145 (NQJ.

Super. Ct. App. Div. 2000) (the plaintiff's cause of action

accrued when he suffered damages from fraud, not

when the fraudulent act occurred).

Thus, certiorari is warranted to resolve a split

among the circuits and the states that encompass those

circuits. It is time that the Supreme Court once and for

all decides a case in which all circuits and all states can

then have a guide to allow them to uniformly determine

when a cause of action accrues, and when the statute of

limitations begins to run in each instance.

CONCLUSION

For all of the foregoing reasons, the Petitioner

respectfully requests that the Supreme Court grant

review of this matter.

16

Respectfully submitted:

Sherri Koehnke

DrO se

228 Woodhill Road

West Mifflin, PA 15122

412 466-2315

412 434-1195 (FAX)

k}-Mail - G6800@aol.com

la

(any footnotes trail end of each document)

No. 08-4519

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SHERRI KOEHNKE, Appellant

Vu

CITY OF MCKEESPORT; E. MICHAEL ELIAS;

TOM CARTER

Octeber 27, 2009, Submitted Under Third Circuit

L.A.R. 34.1(a)

October 28, 2009, Opinion Filed

NOTICE: NOT PRECEDENTIAL OPINION

UNDER THIRD CIRCUIT INTERNAL

OPERATING PROCEDURE RULE 5.7. SUCH

OPINIONS ARE NOT REGARDED AS

PRECEDENTS WHICH BIND THE COURT.

PLEASE REFER TO FEDERAL RULES OF

APPELLATE PROCEDURE RULE o2.1

GOVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellant Sherri Koehnke appeals from the final order

of the District Court, which granted Appellees’ motion

for summary judgment. Ms. Koehnke filed this lawsuit

against the City of McKeesport (the "City") and two of

its police officers, alleging that the police botched their

Za

investigation into her daughter's disappearance and

thereby violated Ms. Koehnke's constitutional rights.

The District Court granted the defendants’ motion for

summary judgment, concluding that Ms. Koehnke's

claims were time-barred. We will affirm.

We write primarily for the parties, who are familiar

with the background of this case, and so we review only

those facts necessary to our analysis. Ms. Koehnke is

the mother of Tanya Kach, who, in early 1996, resided

with Ms. Koehnke's ex-husband, Jerry Kach, Jr., in

McKeesport, Pennsylvania. On February 10, 1996,

then-fourteen-year-old Tanya ran away from home.

Unbeknownst to her parents, Tanya had developed an

intimate relationship with Thomas Hose, a thirty

seven-year-old security guard at her school, and on the

day she left Mr. Kach's residence, Tanya moved in with

Mr. Hose and his parents without informing anyone of

her whereabouts.

After Ms. Koehnke Jearned that her daughter had gone

missing, she noticed Mr. Hose's telephone number on

her telephone bill for the date when Tanya had last

visited her home. Ms. Koehnke called Mr. Hose to ask

him if he knew anything about Tanya's disappearance,

but Mr. Hose told her that he did not know Tanya and

knew nothing about her whereabouts. After Ms.

Koehnke spoke with Mr. Hose, she and Mr. Koehnke

visited the McKeesport Police Department, where she

spoke with Officer Elias. Ms. Koehnke informed Officer

Elias that Tanya was friends with Mr. Hose and that

‘Tanya had called him from Ms. Koehnke's house before

her disappearance. Ms. Koehnke also told Officer Elias

*)

oda

that she had called Mr. Hose to ask if he knew anything

about her daughter's whereabouts, and that he denied

knowing Tanya at all. Police investigators paid a visit to

Mr. Hose's residence; the officers spoke with Mr. Hose

but did not enter the premises because Mr. Hose told

therm that his parents were sleeping inside.

In 1998 or 1999, Ms. Koehnke again informed the

McKeesport Police Department that she suspected that

Mr. Hose was mvolved in Tanya's disappearance. The

officer she spoke with assured her that the Department

had investigated Mr. Hose and had determined that he

"ha[d] nothing to do with" Tanya's disappearance. (App.

92.)

On March 21, 2006, a decade after she ran away from

home, Tanya disclosed her identity to Joe Sparico, the

owner of a local convenience store, and informed him of

the fact that she had been living in Mr. Hose's home for

the last ten years. Mr. Sparico contacted the

authorities, and law enforcement officers removed

Tanya from Mr. Hose's home. In the days following

these events, Tanya's reappearance, and the fact that

she had spent a decade living with Mr. Hose, were

covered extensively by the local media, and reporters

had "camped o*:. in front of Ms. Koehnke's house. (App.

104.) Ms. Koehnke spoke with Tanya on March 23, 2006,

and was reunited with her in person the next day.

Ms. Koehnke filed this lawsuit on June 2, 2008, alleging

that the City had a policy or custom of failing to train

police officers in the handling of missing children cases,

as well as a policy or custom of inadequately

investigating citizen complaints. She asserts that the

defendants violated her due process and equal

4a

protection rights. The defendants moved for summary

judgment.' The District Court granted the motion,

concluding that the statute of limitations on Ms.

Koehnke's claims expired more than two months before

she filed this lawsuit. Koehnke filed this timely appeal.

The District Court had jurisdiction pursuant to 28

U.S.C. §§ 1331 and 1343 and we have jurisdiction under

28 U.S.C. § 1291. Koehnke raises two issues on appeal,

one procedural and one substantive. She first asserts

that the District Court abused its discretion by

granting the defendants’ motion for summary judgment

before the parties conducted discovery. In addition, she

argues that summary judgment was improvidently

entered, contending that a factual dispute exists as to

the timeliness of her claims. We are not persuaded by

either of these arguments, which we address in turn

below.

"'Wle review a claim that the district court has

prematurely granted summary judgment for abuse of

discretion." Bradley v. United States, 299 F.3d 197, 206

(3d Cir. 2002) (citation omitted). The Federal] Rules of

Civil Procedure expressly permit a defendant to move

for summary judgment “at any time," Fed. R. Civ. P.

56(b), whether or not the parties have conducted

discovery. If the non-moving party believes that its

adversary's summary judgment motion is premature,

that party is not without recourse. A party that "cannot

present facts essential to justify its opposition" may-—

and, indeed, must -"show|[] by affidavit," Fed. R. Civ. P.

56(f) (emphasis added), how evidence of such facts

"would preclude summary judgment." Bradley, 299 F.3d

va

at 206 (citation omitted). We have been clear that "in all

but the most exceptional cases, failure to comply with

Rule 56(f) is fatal to a claim of insufficient discovery on

appeal." Jd.

Koehnke's failure to file a Rule 56(f) affidavit is "fatal"

to her contention that the District Court's entry of

summary judgment was premature, as we find no

exceptional circumstances to justify her unexplained

noncompliance with Rule 56(f).* /d. Indeed, while

Koehnke argues that discovery would have enabled her

to prove that it was not until long after Tanya

reappeared that Koehnke became aware of the police's

failure to search Hose's residence, we agree with the

City that Koehnke did not need to conduct discovery in

order to adduce evidence of what she knew and when

she knew it. We find no abuse of discretion in the

timing of the District Court's entry of summary

judgment.

We further conclude that the District Court correctly

determined that Ms. Koehnke's claims ure time-barred.*

Claims brought pursuant to 42 U.S.C. § 1983 are

subject to the statute of limitations “which the State

provides for personal-injury torts," Wallace v. Kato, 549

U.S. 384, 387, 127 S. Ct. 1091, 166 I.. Ed. 2d 973 (2007),

which in Pennsylvania is two years. See 42 Pa. Con.

Stat. Ann. § 5524. Ordinarily, a section 1983 claim

accrues at the time when the injury is sustained—that

is, "when the plaintiff has a complete and present cause

of action." Wallace, 549 U.S. at 388 (internal quotations

and citations omitted).

However, under Pennsylvania's discovery rule, the

accrual of the statute of limitations may be tolled "for

6a

situations in which a party, through no fault of... her

own, does not discover her injury until after the statute

of limitations normally would have run.” Debiec v. Cabot

Corp., 352 F.3d 117, 129 (d Cir. 2003). As we have

explained:

For the statute of limitations to run, a plaintiff

need not know the exact nature of his injury, as

long as it objectively appears that the plaintiff is

reasonably charged with the knowledge that he

has an injury caused by another . . . . Moreover,

the plaintiff attempting to apply the discovery

rule bears the burden of demonstrating that he

exercised reasonable diligence in determining

the existence and cause of his mjury. To

demonstrate reasonable diligence, a plaintiff

must establish that he pursued the cause of his

injury with those qualities of attention,

knowledge, intelligence and judgment which

society requires of its members for the

protection of their own interests and the

interests of others.

Mest v. Cabot Corp., 449 F.3d 502, 510-11 (3d Cir. 2006)

(internal quotations and citations omitted).

We agree with the District Court that Koehnke's claims

are time barred. The record shows that as of March 24,

2006 at the latest, Koehnke knew (or had every reason

to know) (1) that she had informed the Police

Department of the basis of her suspicions concerning

Hose, (2) that the Department had assured her that it

had investigated Hose and determined that he had

nothing to do with Tanya's disappearance, and (3) that

the Department's determination was erroneous. To the

7a

extent that Koehnke sustained a constitutional injury

as a result of the allegedly inadequate investigation, she

had, by March 24, 2006, "sufficient critical facts to put

{her} on notice that a wrong has been committed and

that [she] need{ed]} investigate to determine whether

|lshe was] entitled to redress." Debiec, 352 F.3d at 129

(citation omitted). Koehnke, who “bears the burden of

demonstrating that [s|he exercised reasonable diligence

in determining the existence and cause of [her] injury,"

Mest, 449 F.3d at 511, identified no evidence from which

a jury might conclude that she exercised such diligence,

as the District Court determined.

In sum, we agree with the District Court that the

statute of limitations on Koehnke’s claims expired on

March 24, 2008, more than two months before Koehnke

filed her complaint. We will thus affirm the District

Court's summary judgment order.

Ii.

For the foregoing reasons, we will affirm the District

Court's grant of summary judgment.

Footnotes

1 Defendants styled their motion as one seeking

dismissal or summary judgment. Because Defendants

submitted documentary evidence in support of their

motion, and because Ms. Koehnke submitted evidence

in opposition thereto, the District Court properly

treated the motion as a motion for summary judgment.

2 Although the brief Koehnke submitted to the District

Court noted in passing that the parties had not

3a

conducted discovery, we have made clear that an

"attorney's unverified memorandum opposing the

motion for summary judgment" cannot substitute for a

Rule 56(f) affidavit. Radich v. Goode, 886 F.2d 1391,

1394 (8d Cir. 1989).

3We review a district court's order granting summary

judgment de novo. See Antonelli v. New Jersey, 419

F.3d 267, 272 (8d Cir. 2005). Summary judgment is

appropriate if, viewing the record in the light most

favorable to the non-movant, there are no genuine

issues of material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(¢)

9a

Civil Action No. 08-0759

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

SHERRI KOEHNKE, Plaintiff,

v.

The CITY OF MCKEESPORT, E. MICHAEL ELIAS,

Individually and as an Agent and Employee Thereof,

and TOM CARTER, Individually and as an Agent and

Kmployee Thereof, Defendants.

2008 U.S. Dist. LEXIS 86894

October 24, 2008, Decided

October 27, 2008, Filed

MEMORANDUM and ORDER

Gary L. Lancaster

District Judge.

This is an action in civil rights under the Civil Rights

Act of 1871, 42 U.S.C. § 1983. Plaintiff, Sherri Koehnke,

alleges that defendants, the City of ! ‘cKeesport, and

McKeesport police officers E. Michael Elias and Tom

Carter, violated her substantive due process and equal

protection rights under the Fourteenth Amendment to

the United States Constitution [doc. no. 1]. Plaintiff

also alleges a state law claim of intentional infliction of

emotional distress. The suit stems from defendants’

10a

failure to successfully investigate plaintiffs daughter's

ten year disappearance.

Defendants have filed a motion to dismiss pursuant to

Fed.R.Civ.P. 12(b) (6), or, in the alternative, for

summary judgment pursuant to Fed.R.Civ.P. 56(c)

|doc. no. 6]. The defendants argue, among other things,

that plaintiff's claims against them are barred by the

applicable statute of limitations. For the reasons set

forth below, the motion for summary judgment will be

granted.

I. BACKGROUND

The following material facts are not in dispute. ’

Plaintiff is the mother of Tanya Kach. In February of

1996, fourteen year old Tanya ran away from her home

in McKeesport, Pennsylvania where she lived with her

father and his girlfriend. Without telling anyone of her

plans or her whereabouts, Tanya moved in with

Thomas Hose and his mother and father, who also lived

in McKeesport, Pennsylvania. At the time, Thomas

Hose was a thirty-seven year old security guard at

Tanya's school. After plamtiff learned that Tanya was

missing, she noticed Thomas Hose’s phone number

listed on her telephone bill for the date Tanya had last

visited her shortly before she ran away. Plaintiff called

Thomas Hose and asked whether he knew of Tanya's

whereabouts. Thomas Hose told her that did not know

Tanya and did not know that she was missing.

Thereafter, plaintiff met with defendant Elias about

Tanya's disappearance. At that time, defendant Elias

was the Juvenile Lieutenant for the McKeesport police.

Plaintiff told defendant Elias that Tanya was friends

lla

with Thomas Hose and that Tanya had called him from

her house shortly before she ran away. Plaintiff also

told defendant Ehas that she had called Thomas Hose

after learning that Tanya was missing, and that

Thomas Hose denied even knowing Tanya.

In August of 1998 or September of 1999, plaintiff met

with another member of the McKeesport police,

Captain of Detectives Eugene Riazzi. Plaintiff told

Captain Riazzi of her suspicion that Thomas Hose was

involved in Tanya's disappearance. Capatain Riazzi told

her that the McKeesport police had investigated

Thomas Hose and concluded that Thomas Hose had

nothing to do with Tanya's disappearance.

On March 21, 2006, Tanya finaily revealed her true

identity to friends. One of those friends called the

authorities. Thereafter, law enforcement officials came

to the Hose residence and removed Tanya. By March

23, 2006, there was widespread media coverage of

Tanya's re-appearance and the fact that she had been

living with Thomas Hose and his family for ten years.

On March 23, 2006, plaintiff spoke to Tanya, as well as

the media. On March 24, 2006, plaintiff saw Tanya in

person. *

Plaintiff filed this action on June 2, 2008. According to

plaintiff, approximately one year prior to filing the

complaint, plaintiff learned for the first time that

McKeesport police went to the Hose home to look for

Tanya a few years after her disappearance. * During

this incident, Thomas Hose told police that Tanya was

not there and that his parents were sleeping. The police

then abandoned their search, allowing Tanya to remain

in the Hose household.

12:

In her complaint, plaintiff alleges that defendant City of

McKeeport violated her Fourteenth Amendment

substantive due process rights by: (1) having a policy or

custom of failing to adequately train and supervise

police officers in lost juvenile matters; and (2) having a

policy or custom of inadequate response to, and

investigation of, citizen complaints. Thereby, according

to plaintiff, the City allowed Constitutional abuses to

occur. Plaintiff claims the defendant police officers

violated her Fourteenth Amendment substantive due

process rights and equal protection rights by failing to

use professional police procedures to investigate

Tanya's disappearance. Plaintiff also asserts a state law

claim of intentional infliction of emotional distress.

For the reasons discussed below, plaintiff's claims are

untimely.

Il. STANDARD OF REVIEW

Fed.R.Civ.P. 56(c) provides that summary judgment

may be granted if, drawing all inferences in favor of the

non-moving party, "the pleadings, depositions, answers

to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”

The mere existence of some factual dispute between

the parties will not defeat an otherwise properly

supported motion for summary judgment. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986) (internal quotation marks

omitted). Similarly, summary judgment is improper so

long as the dispute over the material facts is genuine.

Id. In determining whether the dispute is genuine, the

l3a

court's function is not to weigh the evidence or to

determine the truth of the matter, but only to

determine whether the evidence of record is such that a

reasonable jury could return a verdict for the

nonmoving party. Id. at 248-49.

It is on this standard that the court has reviewed the

instant motion for summary judgment and the response

thereto.

Ill. DISCUSSION

In order to recover in a section 1983 action, a plaintiff

must prove two essential elements: (1) defendants

deprived her of a right secured by the Constitution or

laws of the United States; and (2) defendants deprived

her of this federal right under color of any statute,

ordinance, regulation, custom, or usage of any State or

Territory. Adickes v. S. H. Kress & Co., 398 U.S. 144,

150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Section 1983

does not create substantive rights. It only allows a

plaintiff to recover damages for violations of rights

protected by other federal laws or by the United States

Constitution. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-

85, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002); Wilson v.

Garcia, 471 U.S. 261, 278, 105 S. Ct. 1988, 85 L. Ed. 2d

254 (1985).

The defendants contend that plaintiffs section 1983

claims expired pursuant to the applicable statute of

limitations before she filed her complaint. Plaintiff,

however, argues that her claims are not time barred

because she did not discover that she had a claim until

she learned that the McKeesport police went to the

Hose residence a few years after Tanya disappeared

but failed to discover Tanya. She contends that she did

l4a

not learn of this incident until, "a little less than one

year prior to the filing of this case.” [Doc. No. 10 at 7].

Therefore, according to plaintiff, the claim is timely.

The court agrees with defendants.

A. Statute of Limitations

The applicable statute of limitations for a section 1983

claim is the general personal injury limitations period of

the forum state. Wilson, 471 U.S. at 279-80. The statute

of limitations for personal injury claims in Pennsylvania

is two years. See Pa. Cons. Stat. Ann. § 5524(2) (2007).

Therefore, the applicable statute of limitations for

plaintiffs section 1983 claims is two years from the date

her section 1983 claims accrued. Bougher v. Univ. of

Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989).

Generally, the statute of limitations for a tort action

under Pennsylvania law accrues when the injury is

sustained. Debiec v. Cabot Corp., 352 F.3d 117, 128-29

(3d Cir. 2003). In this case, plaintiff's claimed injury is

the constitutionally protected mght to the

companionship of her daughter. Plaintiffs injury,

therefore, was sustained beginning in February 1996

and continued until, at the latest, March 24, 2006 when

she saw Tanya again.

B. Discovery Rule

The "discovery rule" is an exception to the general rule

discussed above. It applies where a party, through no

fault of her own, does not discover her injury until after

the statute of limitations would normally have run.

Moyer v. United Dominion Indus., Inc., 473 F.3d 532,

547 (3d Cir. 2007) (citing Debiec, 352 F.3d at 129). "In

that case, the limitations period begins to run when the

ida

plaintiff knows, or reasonably should know: (1) that

[she] has been injured, and (2) that [her] injury has

been caused by another party's conduct.” /d. (citation

and internal quotations omitted).

The party claiming the benefit of the discovery rule has

the burden of demonstrating that it applies, and must

establish reasonable diligence in investigating her

potential claim, with "reasonableness" considered under

an objective standard. /d. Thus, the limitations period

is triggered when the plaintiff possessed sufficient

critical facts to put her on notice that a wrong had been

committed and that she needed to investigate to

determine whether she was entitled to redress. /d. at

547-48 (citation and internal quotations omitted). "The

issue of reasonable diligence is usually for the jury to

decide, but where the facts are so clear that reasonable

minds cannot differ, the commencement period may be

determined as a matter of law." Jd.

Plaintiff claims the benefit of the discovery rule in this

case. Although we find that the rule applies, we

conclude that it cannot save plaintiffs claims. The

undisputed material facts establish that plaintiff was

aware, no later than March 24, 2006, of the facts

supporting her Constitutional claims. By that date,

plaintiff knew that: (1) Tanya had been living with

Thomas Hose and his family for the last ten years; (2)

the McKeesport police knew that Tanya was friends

with Thomas Hose and had called Thomas Hose from

plaintiffs home shortly before Tanya disappeared; yet,

Thomas Hose denied even knowing Tanya; (3)

McKeesport police investigated Thomas Hose and his

possible involvement in Tanya's disappearance, but

concluded that he had nothing to do with Tanya's

disappearance; and (4) defendants were wrong about

l6a

Thomas Hose and had obviously failed to adequately

investigate him.

Plaintiff contends that the statute of limitations period

should not be triggered under the discovery rule until

sometime in 2007, when she learned that McKeesport

police visited the Hose house, a few years after Tanya

disappeared, but failed to find Tanya. This incident is

certainly strong evidence of the itmadequacy of

defendants' investigation of Thomas Hose. However,

plaintiff knew well before she learned of that incident

that the McKeesport police had botched the

investigation. On the day plaintiff learned that Tanya

had been living with Thomas Hose and his family,

plaintiff knew, or reasonably should have known, that

defendants’ investigation of Thomas Hose was

inadequate.

We conclude as a matter of law that a reasonable

person armed with the same information that plaintiff

possessed on March 24, 2006, would have sufficient

notice that a wrong had been committed by the

defendants and that she needed to investigate to

determine whether she was entitled to redress. Thus,

under the discovery rule, the limitations period began

to run on that date. Plaintiff's section 1983 claims,

therefore, expired two years later on March 24, 2008.

Because she did not file this complaint until June 2,

2008, it is time barred.

Plaintiff's state law claim of intentional infliction of

emotional distress is also untimely. This claim is also

subject to a two year statute of limitations. See 42 Pa.

Cons. Stat. Ann. § 5524(7) (2007). For the same reasons

set forth above, plaintiff's claim for intentional infliction

7a

of emotional distress also accrued on March 24, 2006

and expired on March 24, 2008.

IV. CONCLUSION

Because resolution of the timeliness issue disposes of all

of plaintiff's claims against the defendants, we will not

address the defendants’ additional defenses. For the

reasons set forth above, the defendants’ motion for

summary judgment will be granted. An appropriate

order follows.

ORDER

AND NOW, this 24th day of October, 2008, IT IS

HEREBY ORDERED that the motion for summary

judgment filed on behalf of defendants the City of

McKeesport, Tom Carter, and E. Michael Elias [doc. no.

6] is GRANTED. Plaintiffs claims against all

defendants are dismissed with prejudice.

IT IS FURTHER ORDERED THAT the Clerk of

Court is directed to mark this ease closed forthwith.

BY THE COURT:

/s/ Gary L. Lancaster, J.

Footnotes

1 At oral argument, plaintiffs counsel argued that

defendants’ motion was premature because the parties

had not yet conducted discovery. However, the facts

material to the issue of whether plaintiffs claims are

time barred are not in dispute. Plaintiff has admitted

the facts which are material to the issue of timeliness

set forth in defendant's Statement of Undisputed Facts

[sa

[doc. nos. 8, 12]. Discovery cannot change plaintiff's own

admissions.

2 On September 19, 2006, Tanya filed her own civil

rights lawsuit against these defendants and others for,

inter alia, failing to properly investigate her

disappearance. That claim was dismissed as untimely.

See Kach v. Hose, 06-1216, 2008 U.S. Dist. LEXIS

97592, 2008 WL 4279799 (W.D. Pa. Sept. 12, 2008).

3 Plaintiff is uncertain as to the exact date the police

went to the Hose house. However, the exact date of

this visit is not relevant for purposes of resolving this

motion.

19a

Dated: 11/23/2009

No. 08-4519

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SHERRI KOEHNKE, Appellant

Vv.

CITY OF MCKEESPORT; E. MICHAEL ELIAS;

TOM CARTER

SUR PETITION FOR REHEARING EN BANC

Present: SCIRICA, Chief Judge, SLOVITER, McKEE,

RENDELIL, BARRY, AMBRO, FUENTES, SMITH,

FISHER, CHAGARES, JORDAN and HARDIMAN,

Circuit Judges

The Petition for Rehearing filed by the Appellant in the

above-entitled matter, having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in

the decision having asked for rehearing, and a majority

of the circuit judges of the circuit in regular service not

having voted for rehearing, the Petition for Rehearing

by the panel and the Court en bane, is hereby

DENIED.