Shrey et al v. Foresman

Filing 24

MEMORANDUM AND ORDER - AND NOW, this 17th day of Feb., 2012, upon consideration of deft.'s mtn. to dismiss, converted to a mtn. for SJ 5 , & plf.'s response, & pur. to the accompanying Memorandum, it is ORDERED that: 1. Deft.'s mtn. for SJ 5 is GRANTED. 2. The Clerk of Crt. shall enter jgm. in favor of deft. & against the plfs., & shall close this file. (See memo for complete details.) Signed by Honorable William W. Caldwell on 2/17/12. (am, )

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
RANDY SHREY and JANETE
SHREY,
Plaintiffs
v.
GREGORY FORESMAN,
Defendant

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: CIVIL NO. 4:11-CV-1671
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:
:
:

MEMORANDUM
I.

Introduction
We are considering defendant’s motion to dismiss, which we converted to a

motion for summary judgment. This matter relates to the 2008 investigation and
confiscation of certain pins owned by the plaintiffs that contained logos resembling those
of the Williamsport Bureau of Police and the Little League World Series. Defendant
moved to dismiss plaintiffs’ complaint, asserting plaintiffs filed the instant suit after the
expiration of the statute of limitations. We converted the motion to dismiss into a motion
for summary judgment pursuant to Federal Rule of Civil Procedure 12(d).
II.

Background
Plaintiffs designed a pin resembling the Williamsport Police Badge and the

Little League logo and listed them for sale on E-bay. Plaintiffs allege that on July 14,
2008, Captain Raymond Kontz, III of the Williamsport Police Department came to their
home and falsely told them that Little League made a complaint about the use of its logo

without permission. He allegedly told plaintiffs the sale of the pins was illegal and
confiscated 655 pins.
Defendant filed a motion to dismiss, raising a statute of limitations defense.
Plaintiffs argued that the statute was tolled by fraudulent concealment until May 9, 2011,
when plaintiffs discovered defendant’s involvement. We issued a Memorandum and
Order, dismissing plaintiff’s complaint on November 15, 2011. Plaintiff filed a motion for
reconsideration, requesting that the motion to dismiss be converted into a motion for
summary judgment. We granted plaintiff’s motion on January 4, 2012.
III.

Discussion
A. Standard of Review
We will examine the motion for summary judgment under the well-

established standard. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir.
2008) (“Summary judgment is only appropriate if there are no genuine issues of material
fact.”). We “must view all evidence and draw all inferences in the light most favorable to
the non-moving party“ and we will only grant the motion “if no reasonable juror could find
for the non-movant.” Id. “Material facts are those ‘that could affect the outcome’ of the
proceeding, and ‘a dispute about a material fact is genuine if the evidence is sufficient to
permit a reasonable jury to return a verdict for the nonmoving party.’” Roth v. Norfalco,
651 F.3d 367, 373 (3d Cir. 2011) (citing Lamont v. New Jersey, 637 F.3d 177, 181 (3d
Cir. 2011). "[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment."

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Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986))
(emphasis in original).
B. Estoppel by Fraudulent Concealment
In § 1983 claims, the state statute of limitations applies. Wilson v. Garcia,
471 U.S. 261, 265 (1985). Plaintiffs and defendant agree that the applicable statute of
limitations is two years. Pa.C.S. § 5524(7). The alleged illegal action occurred on July
14, 2008 and plaintiffs filed their complaint on September 2, 2011. Plaintiffs assert that
the doctrine of estoppel by fraudulent concealment tolled the statute of limitations until
May 9, 2011.
A defendant may be estopped from asserting a statute of limitations
defense “if, through fraud, deception or concealment of facts, a [defendant] lulls an
injured person or his representatives into a sense of security so that such person's
vigilance is relaxed.” Vojtasek v. Allentown, 2006 Pa. Super. 372, 916 A.2d 637, 640
(Pa. Super. 2006) (citation omitted). In determining whether the statute of limitations is
tolled, the court should consider that “it is the duty of a party asserting a cause of action
to use all reasonable diligence to be informed of the facts and circumstances upon which
a potential right of recovery is based to institute suit within the prescribed statutory
period.” Id. at 641. “There are very few facts which diligence cannot discover, but there
must be some reason to awaken inquiry and direct diligence in the channel in which it
would be successful.” Vernau v. Vic’s Mkt., Inc., 896 F.2d 43, 46 (3d Cir. 1990). The
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statute of limitations will be tolled only “in clear cases of fraud, deception or
concealment.” Vojtasek, at 640. If fraudulent concealment occurred, the statute of
limitations does not commence “until the time of discovery or the date when with
reasonable diligence one would have been led to discovery.” Urland v. Merrell-Dow
Pharmaceuticals, Inc., 822 F.2d 1268, 1274 (3d Cir. 1987) (emphasis in original).
Plaintiffs, although given the opportunity to provide additional facts, have
failed to produce sufficient evidence to support their allegation of fraudulent
concealment. As defendant notes, plaintiffs have not pointed to an affirmative act on the
part of the defendant which constitutes fraudulent concealment. Plaintiffs allege that
neither Kontz nor defendant Foresman prepared a police report of the incident or a
property receipt for the pins. This is not enough to support plaintiffs’ allegations.
Plaintiffs also failed to exercise reasonable diligence to be informed of the
facts and circumstances upon which a potential right of recovery could be based. During
the statutory period, prior to July 14, 2010, plaintiffs contacted the mayor’s office and the
office of the District Attorney. They did not make any attempt to determine whether
anyone other than Kontz was involved with the confiscation of the pins. As noted in our
previous decision, plaintiffs could have inquired about the role of other police officers in
the confiscation of the pins. They should have known that other officers might be
involved in a police investigation. They did not discover Foresman’s alleged involvement
because they did not exercise reasonable diligence.

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Plaintiffs have failed to demonstrate a clear case of fraud, or that they
exercised diligence in discovering the facts. The statute of limitations was not tolled and
expired prior to the filing of the present suit. Since there are no genuine issues of
material fact, summary judgment in favor of defendant is proper. We will issue an
appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

RANDY SHREY and JANETE

:

SHREY.

:
Plaintiffs

:
: CIVIL NO. 4:11-CV-1671

v.

:
:

GREGORY FORESMAN,
Defendant

:
:
ORDER

AND NOW, this 17th day of February, 2012, upon consideration of
defendant’s motion to dismiss, converted to a motion for summary judgment (Doc. 5),
and plaintiff’s response, and pursuant to the accompanying Memorandum, it is
ORDERED that
1. Defendant’s motion for summary judgment (doc. 5) is GRANTED.
2. The Clerk of Court shall enter judgment in favor of Defendant and
against the Plaintiffs, and shall close this file.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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