Fullerton v. Monongahela Connecting Railroad Company

• Citation: 242 F. Supp. 622
• Decision Date: 22 June 1965
• Docket Number: Civ. A. No. 65-351.
• Parties: John G. FULLERTON, Plaintiff, v. The MONONGAHELA CONNECTING RAILROAD COMPANY, a corporation, and Retail Credit Company, a corporation, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

242 F. Supp. 622

John G. FULLERTON, Plaintiff, v. The MONONGAHELA CONNECTING RAILROAD COMPANY, a corporation, and Retail Credit Company, a corporation, Defendants.

Civ. A. No. 65-351.

United States District Court W. D. Pennsylvania.

June 22, 1965.

Evans, Ivory & Evans, Pittsburgh, Pa., for plaintiff.

V. C. Short, Kirkpatrick, Pomeroy, Lockhart & Johnson, Pittsburgh, Pa., for defendant Railroad Co.

John P. McComb, Jr., Moorhead & Knox, Pittsburgh, Pa., for defendant Retail Credit Co.

GOURLEY, Chief Judge.

In this civil proceeding plaintiff claims that defendants conspired to prevent him from recovering damages against defendant carrier in another proceeding under the Federal Employers' Liability Act in this Court. Plaintiff claims that as a result of the conspiracy he has suffered the following injuries:

1. Violation of his civil rights.

2. He has been impaired in the prosecution of his claim for damages.

3. Defamation of character.

4. Invasion of privacy.

5. Impairment of health, severe emotional distress, and humiliation.

Jurisdiction is claimed to arise under 28 U.S.C.A. § 1331 on the basis of divers federal statutes as to both defendants. Jurisdiction based on diversity is also claimed against Defendant Retail Credit Company to support the alleged causes of action for the common law torts of invasion of privacy, defamation and the intentional causing of emotional distress.

Furthermore, since no diversity of citizenship exists between plaintiff and Defendant Monongahela Connecting Railroad (carrier), plaintiff claims that the doctrine of "pendent jurisdiction" supports his claim for recovery against the carrier for the common law torts.

The immediate matter before the Court is a Motion to Dismiss filed by defendants based on the legal theses that the Court has no jurisdiction over the plaintiff's claims, that the claim for defamation is barred by the one-year statute of limitations, and that plaintiff has failed to state any claim upon which relief can be granted.

After a thorough review of the record, arguments and briefs of counsel, and the applicable law, it is the considered judgment of the Court that the motion of Defendant Carrier should be granted as to all claims against it, and that the Motion of Defendant Retail Credit should be granted as to those claims asserted under federal statutes and denied as to those claims based on diversity.

I. FACTS

The instant proceeding arose in connection with the filing of suit for personal injuries by the plaintiff in this Court under the Federal Employers' Liability Act, against Defendant Carrier, at Civil Action No. 63-366. Defendant Carrier engaged the Retail Credit Company to make an investigation of plaintiff's activities and pursuant thereto Retail Credit sent James Napoleone to interrogate the plaintiff at his home. Napoleone was charged with representing himself to plaintiff as an agent of the Veterans Administration, and was subsequently arrested and convicted of the crime of impersonating a federal employee, under 18 U.S.C.A. § 912. An appeal on said conviction is presently pending before the United States Court of Appeals for the Third Circuit.

II. DISCUSSION

Analysis indicates that plaintiff is not entitled to the relief demanded under the federal statutes. The Court does have jurisdiction because plaintiff has asserted rights under the laws of the United States and the claims based thereon must be dismissed for failure to state a claim upon which relief can be granted. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

III. LAW

(A) Plaintiff contends that the violation of the False Personation Statute, 18 U.S.C.A. § 912, gives rise to a civil cause of action. The statute provides that:

"Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years or both."

Since there is no explicit provision for civil liability and there are no reported cases in which civil liability has been sustained for violation of said statute, it is necessary to rely on the test fashioned by the courts to determine whether civil liability should be implied when a federal criminal statute is violated. The test is whether the statute was enacted to protect a particular class of people so as to create a civil right in members of the class, although the only express sanctions are criminal. Reitmeister v. Reitmeister, 162 F.2d 691 (C.A. 2, 1947). The Supreme Court has held that the purpose of the false personation statute is to "maintain the general good repute and dignity of the government service itself." United States v. Lepowitch, 318 U.S. 702, 704, 63 S.Ct. 914, 916, 87 L.Ed. 1091 (1943). The Court cannot perceive that Congress also intended to protect any particular class of people for which a civil right of action should be implied.

Therefore, the claims against defendants based on the violation of said statute cannot be sustained.

(B) Plaintiff relies on alleged breaches of Sections 1983 and 1985 of the Civil Rights Act of 1871 to sustain his claim for relief. 42 U.S.C.A. § 1983 provides that:

"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 injuried in an action of law, suit in equity, or other proper proceeding for redress."

Action under color of state law is required under this statutory provision before civil liability can be imposed. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). The Supreme Court has defined action under color of state law to be the "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, supra, at 326, 61 S.Ct. at 1043.

Moreover, no redress is provided under this section against those acting in a private capacity unless they are acting in concert with state officials. It is obvious that neither of the defendants, nor Napoleone, deprived plaintiff of any rights, privileges or immunities by acting under color of any state law or by acting in concert with state officials. Pugliano v. Staziak, 231 F.Supp. 347 (W. D.Pa., 1964); aff'd. 345 F.2d 797 (C.A. 3, June 10, 1965). Accordingly, the claims based on this section must be dismissed.

Under 42 U.S.C.A. § 1985 we are only concerned with the behavior proscribed by the second part which provides for civil liability:

"If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, * * * or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of

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