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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2961

___________

JAMES T. COLE, JR.,

Appellant

v.

SETH FERRANTI; GORILLA CONVICT PUBLISHING

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 4-10-cv-00426)

District Judge: Honorable John E. Jones III

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Submitted Pursuant to Third Circuit LAR 34.1(a)

August 21, 2013

Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges

(Opinion filed: August 26, 2013)

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OPINION

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PER CURIAM

James Cole, a federal inmate proceeding pro so, appeals from an order of the United 

States District Court for the Middle District of Pennsylvania, which granted summary 

judgment to defendants Seth Ferranti and Gorilla Convict Publications. We will affirm the 

District Court’s order.
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In 2010, Cole filed a pro se complaint in the District Court, alleging that he was libeled 

and slandered in a book entitled Street Legends that was written by Ferranti and published by 

Gorilla Convict Publications in 2008. According to Cole, Street Legends

included false and defamatory statements about his past involvement with a criminal 

organization known as the Junior Black Mafia. Defendant Ferranti, also a pro se federal 

inmate, filed a motion for summary judgment on behalf of himself and Gorilla Convict 

Publications on the grounds that Cole’s complaint was barred by the one-year statute of 

limitations applicable to defamation actions in Pennsylvania. The District Court concluded 

that Cole’s complaint was time-barred and granted summary judgment to both Ferranti and 

Gorilla Convict. Cole timely filed this appeal.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review the order granting 

summary judgment de novo, using the same standard as the District Court. See Pichler v. 

UNITE, 542 F.3d 380, 385 (3d Cir. 2008). Summary judgment is appropriate when the 

movant demonstrates “that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Pennsylvania law imposes a one-year statute of limitations on claims for defamation. 

42 Pa. C. S. § 5523(1). Cole initiated his suit in February 2010. He does not dispute the 

District Court’s finding that Street Legends was published almost two years earlier, in April 

2008, but argues that he is entitled to tolling under Pennsylvania’s “discovery rule” because he 

did not learn of the book’s publication until June 2009. The District Court concluded that Cole 

cannot benefit from the discovery rule because the rule does not apply to claims alleging 
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defamation through mass-media publications like Street Legends. On appeal, Cole emphasizes 

that neither this Court nor the Pennsylvania Supreme Court has decided whether the discovery 

rule applies to mass-media defamation actions, and that his incarceration served as a barrier to 

timely discovering his injury because inmates do not have ready access to new books, 

magazines, or the internet.

The Pennsylvania discovery rule “toll[s] the statute of limitations in any case where a 

party neither knows nor reasonably should have known of his injury and its cause at the time 

his right to institute suit arises.” Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). Under the 

rule, the limitations period begins to run when the complaining party “knows, or reasonably 

should know, (1) that he has been injured, and (2) that his injury has been caused by another 

party’s conduct.” Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir. 1991). Because we apply 

Pennsylvania’s statute of limitations and tolling principles in this diversity action, we must 

look to Pennsylvania law and predict how the Pennsylvania Supreme Court would view the 

applicability of the discovery rule to Cole’s case. Id. The Pennsylvania Supreme Court has 

explained that the discovery rule’s central purpose is to address “an injury that is not 

immediately ascertainable.” Fine, 870 A.2d at 859-60. The Court has cautioned that the rule 

“cannot be applied so loosely as to nullify the purpose for which a statute of limitations exists,”

and is reserved for “worthy cases” in which “the injured party is reasonably unaware that an 

injury has been sustained.” Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997). Under 

Pennsylvania law, incarceration generally is not a basis for tolling. See 42 Pa. C. S. § 5533(a).

We do not decide whether Pennsylvania’s discovery rule broadly operates in the context 
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of mass-media defamation claims because we conclude that in this case Cole could not have 

been “reasonably unaware that an injury has been sustained” during the limitations period. 

Dalrymple, 701 A.2d at 167.1 Cole acknowledges that he received a letter from Ferranti in 

2007 asking if he would be willing to add anything to a book Ferranti was writing called Street 

Legends, which included passages about Cole’s affiliation with the Junior Black Mafia. Cole 

asserts that he replied by letter to Ferranti stating that he did not want his name to be included 

in the book, and thereafter assumed that the matter was resolved. It was not until June 2009, 

Cole maintains, that he learned about the publication of Street Legends when he was told by 

fellow inmates that a book which made unflattering references to him was circulating among 

the inmate population. According to Cole, he did not decide to read the book until six months 

later, in December 2009, and did not file his complaint in the District Court for another two 

months.

Cole had advance notice of the book’s imminent publication before the one-year 

limitations period on defamation claims began to run. Although his incarceration may have 

required him to exercise more diligence in discovering that Street Legends was published 

before the limitations period expired in April 2009, there is no evidence to suggest that Cole 

acted in a reasonable manner to preserve his rights after corresponding with Ferranti. On the 

contrary, he admits that after informing Ferranti that he did not wish to be in the book, he 

 

1 We note that the Seventh Circuit has declined to apply the discovery rule in a mass-media 

defamation action brought by an incarcerated inmate. See Schweihs v. Burdick, 96 F.3d 917, 

921 (7th Cir. 1996). State courts have reached similar conclusions in mass-media defamation 

cases involving non-incarcerated plaintiffs. See, e.g., Shively v. Bozanich, 31 80 P.3d 676, 

688-89 (Cal. 2003); Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 299 (D.C. 2001); 

Flynn v. Assoc'd Press, 519 N.E.2d 1304, 1307 (Mass. 1988); Clark v. AiResearch Mfg. Co. of 

Ariz. Inc., 673 P.2d 984, 986-87 (Ariz. 1983).
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assumed the matter was over. Cole did not act to preserve his rights even after learning that 

Street Legends was circulating in his prison, waiting until December 2010 to obtain a copy and 

read it. Under these circumstances, we cannot conclude that application of Pennsylvania’s 

equitable discovery rule is appropriate. 2

Accordingly, we will affirm the District Court’s order.3

 

2 We reject Cole’s alternative argument that a second printing of Street Legends in April 2010 

caused the one-year statute of limitations period for his defamation claims to begin anew. See

In re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012).

3 Cole asks us to remand to the District Court with respect to the grant of Ferranti’s motion for 

summary judgment on behalf of Gorilla Convict Publications. We agree that as a non-attorney, 

Ferranti was not permitted to represent Gorilla Convict, apparently a sole proprietorship owned 

by a third-party, in the summary judgment motion. See Iannaccone v. Law, 142 F.3d 553, 558 

(2d Cir. 1998). We will deny Cole’s request to remand on that basis, however, because the 

District Court acknowledged that Ferranti was not allowed to represent Gorilla Convict and 

was permitted to grant summary judgment to Gorilla Convict independent of Ferranti’s motion. 

See Fed. R. Civ. P. 56(f); Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“district courts 

are widely acknowledged to possess the power to enter summary judgments sua sponte, so 

long as the losing party was on notice that she had to come forward with all of her evidence.”).