Weyandt v. Mason's Stores, Inc.

• Decision Date: 09 February 1968
• Docket Number: Civ. A. No. 67-972.
• Citation: 279 F. Supp. 283
• Parties: Margie J. WEYANDT, Plaintiff, v. MASON'S STORES, INC., (Pa.-3), Walter Ellis, trading and doing business as Investigation & Protective Service, also known as I. P. S. Detective Agency, Nadean Matlack, Gerald Prouix, John Price, Donald Fowkes and W. Don Marlin, Justice of the Peace, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

279 F. Supp. 283

Margie J. WEYANDT, Plaintiff, v. MASON'S STORES, INC., (Pa.-3), Walter Ellis, trading and doing business as Investigation & Protective Service, also known as I. P. S. Detective Agency, Nadean Matlack, Gerald Prouix, John Price, Donald Fowkes and W. Don Marlin, Justice of the Peace, Defendants.

Civ. A. No. 67-972.

United States District Court W. D. Pennsylvania.

February 9, 1968.

John Daley and James H. Brennan, of Brennan & Brennan, Pittsburgh, Pa., for plaintiff.

Carl A. Eck, of Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for defendants Walter Ellis and Nadean Matlack.

Edward A. Mihalik, of Egler, McGregor & Reinstadtler, Pittsburgh, Pa., for defendants Mason's Stores, Inc. and Gerald Prouix.

Amos Davis, Altoona, Pa., for defendant Donald Fowkes.

Lisle A. Zehner, Pittsburgh, Pa., for defendant John Price.

Alan Krier, of Jubelirer & Carothers, Altoona, Pa., for defendant W. Don Marlin.

OPINION

MARSH, District Judge.

Plaintiff has brought this two-count action for redress of the alleged deprivation, under color of Pennsylvania law, of rights, privileges or immunities secured to her by the Fourteenth Amendment of the Constitution of the United States and for recovery of damages for the alleged conspiracy of defendants to deprive her of the equal protection of the laws or of equal privileges and immunities under the laws, as provided by §§ 1981, 1983, 1985, and 1986, Title 42 U.S.C. Since plaintiff does not aver racial discrimination, § 1981 is plainly inapplicable. Section 1986 relates to the neglect or refusal of persons with knowledge thereof to act to prevent the commission of the wrongs proscribed by § 1985; but plaintiff avers that all defendants were participants in the alleged conspiracy. It is therefore evident that plaintiff's action is addressed to §§ 1983 and 1985. Jurisdiction is conferred by § 1343, Title 28 U.S.C.

The action is directed against Mason's Stores, Inc. (Mason), owner of a store wherein certain events recited in plaintiff's Complaint are alleged to have occurred; its store manager, Gerald Prouix; Walter Ellis, proprietor of a detective agency employed by Mason to protect its store; Nadean Matlack, a private detective in the employ of Ellis and assigned to the Mason store; John Price, a police officer of Logan Township, Blair County, Pennsylvania; Donald Fowkes, a deputy constable of Logan Township, Blair County, Pennsylvania; and W. Don Marlin, a justice of the peace of Logan Township, Blair County, Pennsylvania. The Complaint against defendant Marlin was dismissed by order of this court of December 7, 1967, on motion for judgment on the pleadings, on the grounds that as a justice of the peace, defendant Marlin was immune from liability for damages. Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bauers v. Heisel, 361 F.2d 581, 584 (3d Cir. 1966).

Defendants Mason, Prouix, Ellis and Matlack have moved to dismiss the action against them on grounds, inter alia, that they did not act "under color of any statute, ordinance, regulation, custom or usage"; that plaintiff pleads no facts which could warrant any inference that they participated in any conspiracy to deprive her of any civil rights; and, there being no diversity of citizenship, that this court has no jurisdiction over tort actions for false arrest, false imprisonment and assault, as averred in ¶ 4 of the Complaint.

We think the motions of these defendants should be granted and plaintiff's action against them dismissed.

On motion to dismiss, the allegations of the Complaint and the inferences to be drawn therefrom must be taken most strongly in plaintiff's favor. Valle v. Stengel, 176 F.2d 697, 701 (3d Cir. 1949). It is likewise axiomatic that in an action for damages under the Civil Rights statutes, the plaintiff must allege highly specific facts. United States ex rel. Hoge v. Bolsinger, 211 F.Supp. 199 (W.D.Pa.1962), aff'd 311 F.2d 215 (3d Cir. 1962), cert. denied 372 U.S. 931, 83 S.Ct. 878, 9 L.Ed.2d 735 (1963); Pugliano v. Staziak, 231 F.Supp. 347, 349 (W.D.Pa.1964), aff'd 345 F.2d 797 (3d Cir. 1965).

Plaintiff alleges that on January 13, 1967 she was a customer in the Mason store located at Pleasant Valley Boulevard and Route 220, Altoona, Blair County, Pennsylvania. She alleges that while there for the purpose of making purchases she was confined by store manager Prouix in a private office where she was slapped and beaten by Prouix and other Mason employees and by defendant Matlack; refused her request for permission to contact her attorney; and forcibly restrained from leaving the office when she attempted to do so. Though plaintiff does not say so, her further allegations make clear that defendants Prouix and Matlack suspected her of shoplifting.

She alleges that when defendants Price and Fowkes arrived at the scene, she was outside the door of the office and continued walking out of the store followed by Price, Fowkes and Prouix, until she reached a distance of approximately 500 feet outside the store, whereupon she was grabbed by Price and bodily carried through spectators back into the store and into the same office and again forcibly restrained.

She alleges that Matlack, Price and Fowkes insisted she sign a confession, which she refused to do; and that under compulsion she was forced to expose her person and forcibly searched. Thereafter Matlack, Price and Prouix forcibly escorted her to an automobile and Fowkes and Matlack took her before the justice of the peace who charged her with aiding and abetting a shoplifter¹ and resisting arrest. Asked how she pleaded, plaintiff said she needed counsel. The justice told her she must post $38 cash bail to be released. She called for bail but was committed to Blair County jail for a number of hours, on instructions of the justice, until bond was placed.

Subsequently, a summons was served on her to answer a charge of shoplifting on a complaint filed by defendant Matlack. At a hearing held on Friday, January 20, 1967, before the same justice of the peace, the charge was dismissed.

In addition to the averments of false arrest, false imprisonment and assault, plaintiff alleges that she was deprived of her right to counsel and was committed to jail under color of a charge for which no crime exists in Pennsylvania (¶ 4 of the Complaint).

Count One, in which all of the above events are alleged, appears intended to state a claim under 42 U.S.C. § 1983, whereby:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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."

A threshold issue in actions based on § 1983 is whether the alleged tortfeasor acted "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." For action to be taken under color of State law requires "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, * *." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); accord Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Since the moving defendants are private individuals and a private corporation, plaintiff resorts to several arguments in an attempt to establish that defendants were "clothed with the authority of state law".²

Plaintiff first seeks support from 18 Purdon's Pa.Stat.Ann. § 4816.1 (b) which provides in part that persons concealing unpurchased goods "may be detained, in a reasonable manner and for a reasonable length of time, by a peace officer or a merchant or a merchant's employe in order that recovery of such goods may be effected. Such detention by a peace officer, merchant or a merchant's employe shall not render such peace officer, merchant or merchant's employe, criminally or civilly, liable for false arrest, false imprisonment or unlawful detention."

Section 4816.1 is the shoplifting statute of the Pennsylvania Penal Code. The quoted portion of § 4816.1(b) as applied to a merchant or to a merchant's employee, obviously is intended merely to license a qualified right of self-help to effect the recovery of concealed unpurchased goods. The permitted action furthers purely private interests and the statute designates such action as a "detention" rather than an arrest.

The fallacy of plaintiff's argument appears to be in equating acting under license of state law with acting under authority of state law. The same may be said of the contention, advanced at oral argument, that defendants Ellis and Matlack were acting under authority of state law if they were licensed under the Pennsylvania Private Detective Act of 1953, 22 Purdon's Pa.Stat.Ann. § 11 et seq. The nomenclature of this Act, however, is sufficient indication that it is an Act licensing purely private action and invests the licensee with no authority of state law.³ It may be relevant to note in this connection that it is well settled that an attorney's status as an "officer of the court" does not make him an officer of the Commonwealth of Pennsylvania or of any governmental subdivision thereof. Cooper v. Wilson, 309 F. 2d 153, 154 (6th Cir. 1962); Kenney v. Fox, 232 F.2d 288, 289-290 (6th Cir. 1956); Pritt v. Johnson, 264 F.Supp. 167, 169 (M.D.Pa.1967); Pugliano v. Staziak, supra, 231 F.Supp. at p. 351 n. 5; Rhodes v. Meyer, 225 F.Supp. 80, 93-94 (D.Neb.1963).

At oral argument, plaintiff also cited Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951), a criminal action under what is now 18 U.S.C. § 242, whose language respecting color of law parallels that of the civil statute, §...