Heffernan v. Hunter

• Decision Date: 27 April 1999
• Docket Number: No. 98-1749,98-1749
• Citation: 189 F.3d 405
• Parties: (3rd Cir. 1999) JOHN J. HEFFERNAN, Appellant v. ROBERT W. HUNTER, Prisoner #CV9408; BOCHETTO & LENTZ, P.C.; GEORGE BOCHETTO, ESQ. Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 405

189 F.3d 405 (3rd Cir. 1999)

JOHN J. HEFFERNAN, Appellant v. ROBERT W. HUNTER, Prisoner #CV9408; BOCHETTO & LENTZ, P.C.; GEORGE BOCHETTO, ESQ.

No. 98-1749

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: April 27, 1999

Decided: August 26, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 97-cv-06041) District Judge: Honorable Norma L. Shapiro

Alan B. Epstein, Esquire (ARGUED), Thomas Rapp, Esquire, Jablon Epstein, A Professional Corporation, The Bellevue, Ninth Floor, Broad Street at Walnut, Philadelphia, PA 19102-3803, Attorneys for Appellant

Andrew Teitelman, Esquire, Suite 210, 3993 Huntingdon Pike, Huntingdon Valley, PA 19006, Attorney for Appellee Hunter

H. Robert Fiebach, Esquire, Thomas G. Wilkinson, Jr., Esquire (ARGUED), Christopher D. McDemus, Esquire, Cozen and O'Connor, P.C., The Atrium, 1900 Market Street, Philadelphia, PA 19103, Attorneys for Appellees Bochetto & Lentz and Bochetto

Before: MANSMANN, WEIS, and GIBSON,^* Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this case, defendants sought to intimidate plaintiff, a potential witness in federal court, by filing an allegedly frivolous lawsuit against him and using it to generate unfavorable publicity. We hold that plaintiff has standing to seek damages for that conduct under the anti-conspiracy sections of the Civil Rights Act of 1871. However, we also hold that because defendants acted within the attorney- client relationship, they cannot be considered conspirators. On that basis, we will affirm the dismissal by the District Court.

Plaintiff John J. Heffernan, an official with the Securities and Exchange Commission, was assigned in January 1994 to investigate possible insider trading violations growing out of a proposed bank merger. Defendant Robert W. Hunter came under scrutiny for the stock transactions he conducted during the relevant time.

In January 1994, Hunter's five-year relationship with his paramour Joanne Kelly ended when she discovered that he had molested her eleven year-old daughter. The following month, criminal charges were lodged against Hunter in state court.

On February 7, 1994, Kelly advised a county detective that she had information about Hunter's insider trading activities. The detective introduced her to Heffernan on February 24, 1994, who then interviewed her in connection with the SEC investigation. In the following months, Kelly and Heffernan began an intimate relationship, and were married in May 1995. Recognizing the conflict between his personal situation and his official duties, in August 1994 Heffernan requested to be relieved from his assignment to the Hunter investigation. The SEC then transferred the case to a different regional office.

Some weeks after bringing criminal charges against Hunter, Kelly and her daughter filed a civil suit in state court for damages caused by the molestation. The Kellys' lawyers demanded $2 million from Hunter to settle the suit.

In preparation for his defense, Hunter and his attorney hired a detective who reported evidence of Heffernan's and Kelly's intimate relationship during July of 1994. The surveillance produced a videotape showing Heffernan and Kelly kissing, his car parked overnight in her garage, and Kelly leaving and meeting Heffernan at the train station.

On August 29, 1994, defendant George Bochetto and his law firm, defendant Bochetto & Lentz, filed suit on Hunter's behalf in the United States District Court for the Eastern District of Pennsylvania. The complaint alleged that Heffernan had caused Kelly to leave Hunter and to falsely accuse him of child molestation in an attempt to extort money through a civil suit. Moreover, Hunter alleged that Heffernan had supplied Kelly with financial information obtained from the SEC investigation to enhance her prospects for a large settlement in her civil suit. Hunter also sought to halt the SEC investigation.

The very next day, a local television station broadcasted portions of the surveillance videotape and interviewed Bochetto. He said of Heffernan, "[r]ather than take her [Kelly's] statement and go on with the investigation, he [Heffernan] took her statement and decided he wanted to stay for the night . . . It's literally the equivalent of the law enforcement agent jumping into your wife's bed, and prosecuting you from it . . . He starts sharing with her information which we believe she is now using to demand two million dollars of Mr. Hunter to settle an alleged molestation case in Montgomery County."

Defendants also hired a publicist who prepared and distributed press releases describing the material in Hunter's complaint. This prompted newspaper coverage with lurid descriptions such as "sex and million dollar business scandal" (The Reporter (N. Penn.), Sept. 1, 1994), "a bizarre sex-and-business plot worthy of novelist Raymond Chandler" (Phil. Inq., Aug. 31, 1994), and others.¹

The District Court entered summary judgment in Hunter's case in favor of Heffernan on September 26, 1996, following the previous entry of a similar order in favor of the other defendants SEC, and Heffernan's supervisors. See Hunter v. Heffernan, Civ. A. 94-5340, 1996 WL 694237 (E.D. Pa. Sept. 26, 1996); Hunter v. Heffernan, 879 F. Supp. 494 (E.D. Pa. 1995).

Heffernan then turned around and sued Hunter, Bochetto and Bochetto's law firm on September 25, 1997 in the District Court for the Eastern District of Pennsylvania. Heffernan's complaint included claims under 42 U.S.C. SS 1985(1), 1985(2), and 1986, as well as a state law count. It is this action that presently concerns us.

The section 1985(2) count asserted that Hunter and Bochetto had conspired to file a frivolous lawsuit and disseminate defamatory information to the media to intimidate and punish Heffernan so as to affect his attendance and testimony as a witness against Hunter in federal court proceedings. The section 1985(1) claim cited the same acts as part of a conspiracy to impede Heffernan in the discharge of his duties as an officer of the United States, and to injure him in his person and property through harassment. Heffernan also asserted a violation of 42 U.S.C. S 1986 arising from the conspirators' failure to prevent the section 1985 violations. Finally, the complaint advanced a state statutory claim based on wrongful use of civil proceedings.

The District Court dismissed the complaint via two orders pursuant to Fed R. Civ. P. 12(b)(6). In the first, it held that witnesses did not have standing to bring an action under section 1985(2). Because the statute's remedy provision refers only to "the party so injured," reasoned the Court, a witness such as Heffernan had no right to sue under section 1985(2). As to the section 1985(1) count, the Court held that Hunter's filing of the lawsuit against Heffernan could not amount to "force, intimidation or threat." However, Heffernan was granted leave to amend the section 1985(1) claim with respect to the publicity campaign.

Heffernan amended but, in the second order, the Court dismissed the 1985(1) count because, under the circumstances, there could be no conspiracy between attorney and client. Bochetto and his firm, according to the Court, were acting on behalf of Hunter in defense of the SEC charges as well as the other criminal and civil matters pending against him at the time they launched the publicity campaign. Having failed to establish a predicate section 1985 claim, Heffernan's section 1986 claim failed as well. Finally, declining to exercise discretionary supplemental jurisdiction, the Court dismissed the remaining state-law claim without prejudice.

The plaintiff's appeal is limited to the District Court's alleged errors in: first, finding a lack of standing under 42 U.S.C. S 1985(2), and second, refusing to treat lawyer and client as conspirators.

A dismissal with prejudice under Rule 12(b)(6) produces a final order appealable under 28 U.S.C. S 1291, and one subject to plenary review. Malia v. General Elec. Co., 23 F.3d 828, 830 (3d Cir. 1994). All well-pleaded facts in the complaint and reasonable inferences are accepted as true. See id. The dismissal will be affirmed "only if it is certain that no relief can be granted under any set of facts which could be proved." Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 919 (3d Cir. 1999) (internal quotations removed).

I.

Heffernan was not a party to the prospective SEC prosecution, but he was a potential and likely witness in those proceedings, both before a grand jury, and later in federal court. The issue is whether he, as a potential witness, has a right of action under the Civil Rights conspiracy statute.

The relevant portion of 42 U.S.C. S 1985(2),first part, along with the remedial provision in 42 U.S.C. S 1985(3), reads: "If two or more persons . . . conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein . . . or to injure such party or witness . . . or to influence. . . or to injure such juror . . . on account of any verdict, presentment, or indictment . . . the party so injured or deprived may have an action for the recovery of damages." Although section 1985(2) speaks to threats and deterrents against "any party or witness," the remedial language in section 1985(3) granting an action for damages refers only to "the party."²

Section 1985 derives mostly from the Civil Rights Act of 1871, ch. 22, S 2, 17 Stat. 13, and in lesser part not relevant to this appeal, from the Conspiracy Act of 1861, ch. 33, 12 Stat. 284. Almost Kantian in length and complexity, the revision that eventually became section 1985 is a paradigm of poor draftsmanship. In Brawer v. Horowitz, 535 F.2d 830, 837 (3d Cir. 1976), Judge Aldisert referred to "the perfidious syntax of S 1985(2)." In somewhat less colorful...