A.J. Cunningham Packing Corp. v. Congress Financial Corp.

OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. This is an appeal from a final judgment of the district court dismissing the complaints in these consolidated cases as time-barred. For the reasons that follow, we will reverse and remand for further proceedings. I. On August 29, 1984, plaintiffs A.J. Cunningham Packing Corp., Chicago Dressed Beef Co., Inc., Continental Food Products, Inc. and Florence Beef Company filed an action against Congress Financial Corporation (“Congress”) and Philadelphia National Bank (“PNB”) alleging, in a three count complaint, that defendants had violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961— 1968 (1982), and were liable for common law deceit and negligent misrepresentation. Plaintiff Pierce Trading Company filed a separate but essentially identical complaint on the same day. Simultaneously with the filing of their answers on November 8, 1984, defendants moved for summary judgment. The motions were limited in scope to their statute of limitations defense. In the submissions made in connection with the summary judgment motion, the parties agreed that plaintiffs were on notice of the facts giving rise to their claims for relief in January 1981, more than two but less than six years before the action was commenced. Accordingly, there was no disputed material issue of fact and the parties thus presented a question of law for resolution by the district court pursuant to Fed.R.Civ.P. 56. For purposes of ruling on the motions for summary judgment, defendants did not contest any of the material assertions of plaintiffs’ complaints. Essentially, they were as follows: In the fall of 1979, American International Meat Company (“AIMC”) and American International Meat Importers (“AIMI”) were formed to engage in the meat brokerage business. Both companies were highly leveraged and undercapitalized. They were financed by a line of credit supplied by Congress which was secured by the AIMI/AIMC inventory and accounts receivable. During 1980, the financial condition of AIMI and AIMC steadily deteriorated to a position of insolvency. By the end of 1980, Congress had extended credit to AIMI/AIMC in excess of the inventory and accounts receivable reasonably available to repay the obligation to Congress. Although defendants knew AIMI and AIMC were insolvent, they repeatedly represented to various meat suppliers, including plaintiffs, that the companies were solvent in order to induce such suppliers to provide meat to AIMI which Congress could in turn use pursuant to its security agreement to satisfy the AIMI/AIMC debt without compensation to the suppliers. In reliance on these representations, plaintiffs sold approximately two million dollars worth of meat to AIMI on credit between late December 1980 and early January 1981. AIMI and AIMC thereupon filed petitions under Chapter 11 of the Bankruptcy Act which were later converted to liquidation proceedings under Chapter 7 of the Bankruptcy Code. The proceeds of the meat sold by plaintiffs to AIMI were used to completely satisfy the debt to Congress. Plaintiffs were left without any compensation for the two million dollars of meat they had sold to AIMI. On May 28, 1985, 611 F.Supp. 532, the District Court decided the motions for summary judgment. The appropriate period of limitations applicable to all claims, the court held, was the Pennsylvania statute applying to fraud claims. The court acknowledged that there was a split of authority among the district courts in the Third Circuit on the question whether in enacting a revised statute of limitations scheme in 1976, the Pennsylvania legisla [332] ture intended to reduce the six-year period of limitations that had traditionally been applicable to fraud claims arising in the Commonwealth. Finding such an intent, it concluded that a two-year period of limitations applicable to actions “for taking, detaining or injuring personal property” applied to fraud claims which accrued after the effective date of the statute. Accordingly, on this basis only, summary judgment was entered against the plaintiffs, and their claims were dismissed. Thereafter, plaintiffs timely filed a motion for reconsideration of the district court’s order, which was denied. Plaintiffs timely filed notices of appeal from the district court’s order denying reconsideration. We expedited the briefing of these appeals and scheduled them for argument in tandem with Malley-Duff Assoc, v. Crown Life Insurance Co., 792 F.2d 341 (3d Cir.1986). II. For the purpose of determining the applicable state statute of limitations, the district court analogized plaintiffs’ federal RICO claim to an action for common law fraud. Because it found that fraud was subject to a two-year limitation under Pennsylvania law at the time this cause of action accrued, the district court held that the RICO claim was time-barred. Subsequently, in Malley-Duff, we held that within each state all RICO claims, regardless of the specific factual allegations, should be subject to a uniform period of limitations, and that in Pennsylvania that period is the six-year “catchall” statute of limitations. For the reasons stated in Malley-Duff, we hold that the six-year statute applies to the RICO count, and that the district court erred in granting summary judgment on that claim. III. We are now squarely faced with the difficult question of Pennsylvania law that we reserved in footnote 7 of Malley-Duff: What period of limitations governed common law fraud claims that accrued after June 27, 1978, the effective date of the Judicial Code of 1976, Act No. 142, 1976 Pa. Laws 586 (which substantially revised and modernized Pennsylvania’s prior limitations scheme, under which a six-year period was applied to fraud claims), but before February 18, 1983, the effective date of 1982 amendments to the Judicial Code, Act No. 326, 1982 Pa. Laws. 1409, § 201 (which expressly applied a two-year limitation to fraud claims)? This Court has previously noted that under the 1976 Judicial Code it is “unclear” whether the two-year period applicable to actions for “taking, detaining or injuring personal property____” 42 Pa.Con.Stat.Ann. § 5524(3) (Purdon 1981), or the six-year catchall provision, 42 Pa.Cons.Stat.Ann. § 5527(6) (Purdon 1981) applied to an action based on common law fraud. Biggans v. Bache Halsey Stuart Shields, 638 F.2d 605, 607 n. 2 (3d Cir.1980). The many district courts within this circuit that have reached the issue are divided.1 Both sides have presented, in addition to an impressive array of authority, cogent arguments of statutory construction in favor of their respective positions. On balance, however, we [333] are persuaded that if the Pennsylvania Supreme Court were confronted with the question, it would hold that plaintiffs’ common law fraud claims are governed by a six-year statute of limitations, and therefore are timely filed. It will be helpful to first review some statutory history. The following statute of limitations, enacted in 1713, remained on the books until 1978: All actions of trespass quare clausum fregit, all actions of detinue, trover and replevin, for taking away goods and cattle, all actions upon account and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants), all actions of debt, grounded upon any lending, or contract without specialty, all actions of debt, for arrearages of rent, except the proprietaries’ quit-rents, and all actions of trespass, of assault, menace, battery, wounding and imprisonment, or any of them, which shall be sued or brought at any time after the five and twentieth day of April, which shall be in the year of our Lord one thousand seven hundred and thirteen, shall be commenced and sued within the time and limitation hereafter expressed, and not after; that is to say, the said actions upon the case, other than for slander, and the said actions for account, and the said actions for trespass, debt, detinue and replevin, for goods or cattle, and the said actions of trespass quare clausum fregit within three years after the said five and twentieth day of April next, or within six years next after the cause of such actions or suit, and not after. And the said actions of trespass, of assault, menace, battery, wounding, imprisonment, or any of them, within one year next after the said five and twentieth day of April next, or within two years next after the cause of such actions or suit, and not after; and the said actions upon the case for words, within one year next after the words spoken, and not after. Act of March 27,1713,1 Sm.L. 76 (repealed by Act No. 53, 1978 Pa.Laws 202, § 2). Fraud was viewed as coming within the six-year limitation of this statute. See Home Life Insurance Co. v. Greenspan, 360 Pa. 542, 63 A.2d 72 (1949); Flach v. Integrity Trust Co., 134 Pa.Super. 456, 4 A.2d 212 (1939). In 1976, as part of an extensive reform of Pennsylvania’s judiciary and judicial procedures, a new limitations scheme was enacted. As before, there was no express mention of actions for fraud. Two provisions, however, have been advanced as governing fraud claims. Section 5524, as enacted in 1976, provided: The following actions and proceedings must be commenced within two years: (1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process. (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act of neglect or unlawful violence or negligence of another. (3) An action for taking, detaining or injuring personal property, including actions for specific recovery thereof. (4) An action for waste or trespass of real property. (5) An action upon a statute for a civil penalty or forfeiture, where the action is given to a government unit. (6) An action against any officer of any government unit for the nonpayment of money or the nondelivery of property collected upon an execution or otherwise in his possession. Defendants argue that subsection (3) applies to claims for fraud. Plaintiffs contend that, there being no express limitation on actions for fraud, the six-year “catchall” provision of § 5527(6) applies: The following actions and proceedings must be commenced within six years: [334] period of limitation by section 5531 (relating to no limitation). [333] (6) Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a [334] In 1982, the Judicial Code was amended to provide specifically for fraud: The following actions and proceedings must be commenced within two years: Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise 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. 42 Pa.Cons.Stat.Ann. § 5524(7) (Purdon Supp.1985). This amendment applied only to causes of action accruing after its effective date in February of 1983. Act No. 326, 1982 Pa.Laws. 1409, 1440. It does not, therefore, apply to the present case. The question before us, then, is simply this: Does the reference to actions for “taking, detaining or injuring personal property” in the two-year statute encompass actions for fraud? If not, the six-year catchall provision must apply. We have found no decision of the Pennsylvania Supreme Court, or lower state courts,2 on point. We must, as a federal court asked to decide an open question of state law, look to the fundamental principles of statutory construction that would inform a Pennsylvania court’s consideration of the issue. Especially relevant is the Pennsylvania Supreme Court’s admonition that When confronted with questions of statutory construction, this Court has repeatedly held that the words of the statute are to be interpreted in light of the antecedent case law____ Thus, legislative intent to effectuate a drastic change in the law is not to be inferred by mere omission and implication. Truck Terminal Realty Co. v. Pennsylvania, 486 Pa. 16, 23, 403 A.2d 986, 989 (1979). See also Klein v. Reid, 282 Pa.Super. 332, 336, 422 A.2d 1143, 1144 (1980) (“[Cjourts should be reluctant to overrule well-settled principles where to do so would result in an action being barred by the statute of limitations.”). Starting, as we must, with the plain language of the judicial code,3 we see little indication of an intent on the part of the legislature to drastically reduce the limitations period for fraud. As we previously noted, the statute does not mention fraud, and we believe the reference to actions for “taking, detaining or injuring personal property” more readily connotes the torts of conversion and trespass to chattels4 than fraud, which requires neither a taking, a detention, nor an injury to personal property.5 Of course, the phrase “injuring personal property” might be read to refer to any tort causing pecuniary loss, in which case it would include not only fraud, but virtually all actionable conduct. Such a reading is strained at best.6 [335] Admittedly, the meaning of § 5524(3) is not so readily apparent as to lead us to invoke the “plain language” rule. Cf. Thom v. Reliance Van Co., 736 F.2d 929 (3d Cir.1984). Persuasive evidence in the legislative history of an intent to shorten the limitations period for fraud could yet tip the balance. Despite the valiant and scholarly efforts of the defendants, however, we see no such evidence. See also Comment, 53 Temple L.Q. 70, 81 (1980) (“[NJothing in the legislative history or in the Judicial Code itself indicates an intent on the part of the legislature to change the limit from six to two years.”). According to defendants, one important purpose of the Judicial Code of 1976 was to consolidate the limitations period for all actions of “trespass” within a single, uniform provision, § 5524. Thus, subsections (1) and (2) encompass all “trespasses” against persons, subsection (3) “trespass” against personal property, and subsection (4) “trespass” against real property. Common law fraud, defendants contend, is included among the trespasses to personal property by virtue of an 1887 statute that provided: So far as relates to procedure, the distinctions heretofore existing between actions ex delicto be abolished, and that all damages, heretofore recoverable in trespass, trover, or trespass on the case, shall hereafter be sued for and recovered in one form of action, to be called an “action of trespass.” Act No. 158, 1887 Pa.Laws 271, § 2 (repealed by Act No. 53, 1978 Pa.Laws. 202, 259). Defendants conclude that plaintiffs’ position is untenable because it fails “to explain why, suddenly in 1976, the Pennsylvania Legislature would break with a century of tradition and for the first time impliedly create a different limitations period for fraud than for other trespass actions.” Brief at 12. This apparently seamless argument quickly unravels upon examination of its premises. Defendants offer no support for their assertion that an important purpose of the 1976 Judicial Code was to consolidate all trespasses under one limitation period. If anything, it would appear that the Judicial Code was intended, in part, to abolish any remnants of pleading and practice based on the ancient forms of action. We must be chary of any argument resorting to such distinctions. Moreover, there is no “century of tradition” of treating all trespasses as having the same limitations period. The 1713 statute — in force until 1978 — applied a six-year limitation to trespasses to land and a two-year period to trespasses to the person. See 22 Pa. Law Encyclopedia, Limitation of Actions, § 23, at 413-14 (1959). The 1887 statute does not change this. See, e.g., Goodman v. Lukens Steel Co., 777 F.2d 113, 120 (3d Cir.1985) (applying two-year “personal injury” limitation to claims under 42 U.S.C. § 1981). Another statute, passed in 1895, reaffirmed that “[ejvery suit ... brought to recover damages for injury wrongfully done to the person” must be brought within two years. Act No. 135, 1895 Pa.Laws 236, § 2 (repealed by Act No. 53, 1978 Pa.Laws 202, 264). Thus, defendants’ attempt to portray plaintiffs’ position as the one requiring a dramatic departure from established law is not persuasive. We would, in any event, be loathe to allow the presumption against reducing limitations periods — a rule designed to protect justifiable reliance on established law — to be overcome by such nice, academic analysis. We believe that a reduction in a period of limitation from six to two years is far more dramatic, to practitioners if not to theorists, than would be a decision to cease applying the same period to all the multifarious actions that may be brought under the rubric “trespass.” See Black’s Law Dictionary 1347 (5th ed. 1979) (“Trespass comprehends any misfeasance, transgression or offense which damages another person’s health, reputation, or property.”). [336] As additional evidence of a legislative intent to shorten the limitations period for fraud, defendants offer the Pennsylvania Bar Association Judicial Code Explanation of § 5524: [T]he periods applicable to conversion of or injury to personal property and waste or trespass to real property are reduced from six to two years to conform to the modern principle that claims based on conduct, and hence heavily relying on unwritten evidence, should have relatively short statutes of limitations, so as to bring them to trial (after allowance for pre-trial delays) before memories have faded. Reprinted in 42 Pa.Cons.Stat.Ann. §§ 101-1700, at xvi-xvii (Purdon 1981). We do not think that this explanation necessarily supports defendants’ position. First, it refers to a reduction in the period for conversion or injury to personal property, not to the period for fraud. More important, as one commentary states, “this language can best be understood in terms of the desire to impose short limitations where a tangible manifestation of the wrongful action, giving notice of injury, has occurred. This is consistent with the principle that accident cases, in all likelihood the principal kind of action to which this section was directed, do not have a paper trail of evidence.” Fiebach & Doret, A Quarter Century Later — The Period of Limitations For Rule 10b-5 Damage Actions in Federal Courts Sitting in Pennsylvania, 25 Vill.L.Rev. 851, 856 n. 26 (1980). In this respect, fraud is perhaps closer to a contract action than to other torts in that eyewitness testimony is less likely to be critical. The Judicial Code generally provides longer limitations periods for actions based on contract. See 42 Pa.Cons.Stat.Ann. §§ 5525-5526 (Purdon 1981 & Supp.1985). The final piece of evidence of legislative intent advanced by defendants is perhaps the most difficult to interpret of all. They point out that in a 1982 amendment to the Judicial Code, supra, fraud was expressly brought under the two-year statute. They contend that this was a direct response to statements in federal court opinions, such as Biggans, supra, regarding the ambiguity of the 1976 Code, and was merely intended as a clarification of existing law. Though this is plausible, defendants cite no legislative history to support their supposition. They also contend that the new language referring to actions “for injury to person or property” supports the interpretation that subsection (7) is merely a restatement and clarification of the original intent to cover all trespasses. (This, we note, ignores the use of the prefatory phrase “any other action,” which suggests that the legislature knew that the original statutory language did not sweep as broadly as they might have wished.) Plaintiffs, on the other hand, point to the fact that the amendment was made strictly prospective as demonstrating that the legislature intended to change existing law. They point also to the many limitations periods that were clearly reduced by the 1982 amendment, arguing that they reflect the primary intent of the amendments — to reduce limitations periods. Finally, plaintiffs argue that by using the disjunctive term “or” in subsection 7 of § 5524, the legislature intended to distinguish between “actions for injury to property” and “other actions sounding in trespass including deceit or fraud,” and that only the former were within the language of § 5524(3). These arguments are in approximate equipoise; we find the 1982 amendment of little help in divining the intent of the legislature in 1976. Absent a clear indication that the Pennsylvania legislature intended to change long-established law in the 1976 Code, we must presume that it did not.7 [337] We hold, therefore, that plaintiffs’ common law fraud claims, which by stipulation accrued in January 1981, are governed by a six-year statute of limitations, and were timely when filed on August 29, 1984. CONCLUSION For the foregoing reasons, we will reverse the judgment of the district court and remand for further proceedings consistent with this opinion. Footnotes [1] The following opinions opt for the six-year statute: Vosbikian v. Wasserstrom, No. 84-4674 (E.D. Pa. January 13, 1986) (Green, J.) [Available on WESTLAW, DCTU database]; Bernicker v. Pratt, 595 F.Supp. 1034 (E.D.Pa.1984) (Lord, J.); Loughman v. Consol-Pennsylvania Coal Co., Nos. 83-921 et al. (W.D.Pa. Dec. 5, 1984) (Mansmann, J.); D 'Iorio v. Adonizio, 554 F.Supp. 222 (M.D.Pa.1982) (Caldwell, J.); Culbreth v. Simone, 511 F.Supp. 906 (E.D.Pa.1981) (Giles, J.). Coming down in favor of the two-year statute, in addition to the district court in the instant case are: Sariego v. Gerber Products Co., 636 F.Supp. 484 (E.D.Pa.1983) (O’Neill, J.); Malley-Duff Assoc, v. Crown Life Ins. Co., No. 81-439 (W.D.Pa. March 20, 1984) (Bloch, J.), rev’d on other grounds, 792 F.2d 341 (3d Cir.1986); Fickinger v. C.I. Planning Corp., 556 F.Supp. 434 (E.D.Pa.1982) (Shapiro, J.). In Ferber v. Morgan Stanley Co., [1983-84 Transfer Binder] Fed.Sec.L.Rep. (CCH) ]f 99,634 (E.D.Pa.1984), Judge Fullam held that the two-year period applied to fraud. Later, in Kornish v. Smith Barney, No. 84-4182 (E.D.Pa. Feb. 5, 1985) [Available on WESTLAW, DCTU database], Judge Fullam came to “doubt the correctness of my decision in Ferber" slip op. at 4 n. 1, and held that the six-year statute controlled. [2] Defendants cite Bickell v. Stein, 291 Pa.Super. 145, 435 A.2d 610 (1981) as holding that § 5524(3) is applicable to claims for fraud. That case involved claims for fraud and contractual interference in the sale of realty. Without discussion, the court stated that the applicable statute was § 5524(3) and (4). Subsection (4) relates to actions for "waste or trespass of real property.” It is not at all clear what the court intended, and we have not found this decision helpful. [3] "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.Cons.Stat.Ann. § 1921(b) (Purdon Supp.1985). [4] Fraud is one means by which conversion or trespass to chattels may be effected, Restatement (2d) of Torts § 221(b) (1965), but that fact does not imply any equivalence among these causes of action. [5] See Restatement (2d) of Torts § 525 (1965): One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation. [6] “The oblique reference to injuries to personal property in § 5524(3) hardly seems to be a reference to fraudulent conduct and, in the context of actions for taking and detaining personal property, § 5524(3) would seem to embrace only wrongful actions involving some physical [335] or tangible impact.” Fiebach & Doret, A Quarter Century Later — The Period of Limitations for Rule 10b-5 Damage Actions in Federal Courts Sitting in Pennsylvania, 25 Vill.L.Rev. 851, 856 n. 26 (1980). [7] Our decision in Mazzanti v. Merck and Company, 770 F.2d 34 (3d Cir.1985) (per curiam), is not to the contrary. That case involved a claim for tortious interference with contract that accrued in February of 1980. We predicted that the Pennsylvania Supreme Court would apply § 5524(6). That decision, however, relied principally on a Court of Common Pleas decision, Home for Crippled Children v. Erie Insurance Exchange, 130 P.L.J. 480 (Allegheny Cty.1982), aff'd mem., 329 Pa.Super. 610, 478 A.2d 84 (Pa. Super.1984), which in turn held that the plain language of § 5524(3) encompassed tortious interference, since contract rights are personal [337] property under Pennsylvania’s law. As we noted previously, only the most strained reading of "injuring personal property” could include fraud.