DeCarlo v. Joseph Horne and Company

• Decision Date: 31 March 1966
• Docket Number: Civ. A. No. 65-1211.
• Citation: 251 F. Supp. 935
• Parties: Louis DeCARLO, Plaintiff, v. JOSEPH HORNE AND COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

251 F. Supp. 935

Louis DeCARLO, Plaintiff, v. JOSEPH HORNE AND COMPANY, Defendant.

Civ. A. No. 65-1211.

United States District Court W. D. Pennsylvania.

March 31, 1966.

Gustave Wilde, Pittsburgh, Pa., for petitioner.

D. H. Trushel, Pittsburgh, Pa., for defendant.

GOURLEY, Chief Judge.

In this civil jury proceeding under the Civil Rights Statute in which the petitioner claims the right to recover damages against the Joseph Horne Company for denial of civil rights, the immediate matter before the Court is defendant's Motion to Dismiss.

The Court has conducted full and complete oral arguments on the issues and made an exhaustive and meticulous review of the authorities in this area of the law. The legal question presented is one of first impression since the authorities cited by counsel are inapposite.

The defendant contends that the alleged deprivation of the plaintiff's civil rights by the employees of the Joseph Horne Company was not done under color of state law as required by 42 U.S.C.A. § 1983, which provides:

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 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The defendant asserts that there are many cases which have been decided under the Civil Rights Act, including the Third Circuit, which hold that a plaintiff may not recover under the Statute for deprivation of rights by private persons. Defendant further states that the acts of the employees could not be done under color of state law because the Professional Thieves Act of June 24, 1939, P.L. 872, § 821, 18 Pa.P.S. § 4821, is silent as to who has the right to arrest.

It is the plaintiff's contention that the acts of the defendant employees were clearly done "under color of state law" by virtue of the Professional Thieves Act, the Statute under which the plaintiff was arrested.

Plaintiff asserts that, clothed with this statutory authority, the defendant arrested him and thereafter deprived him of his civil rights.

It is apparent therefore that for all intents and purposes this argument crystallizes itself into the resolution of one major issue, that being whether or not the defendants were acting under color of state law when they allegedly violated the plaintiff's constitutional rights. Therefore, consideration must be given to the background of the Professional Thieves Act which is the statute in question and which was originally enacted on June 7, 1901, as modified in 1931.

The Civil Rights Statute does not designate what constitutes "under color of any statute, ordinance, regulation, custom, or usage, of any State", or what persons are susceptible to prosecution under the Civil Rights Act so that each case must depend on its background, facts and circumstances in applying the Act.

There can be no dispute that prior to the enactment of the Professional Thieves Act, no right existed at common law for the persons specified under the Statute to make a lawful arrest of a party who was on the premises for an unlawful purpose. It must be concluded, therefore, that the...