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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1107

## Text

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 ................

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APPENDIX

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1660%3A1. Public record. Not legal advice.