Raitport v. Provident Nat. Bank

• Decision Date: 12 April 1978
• Docket Number: Civ. A. No. 76-3572.
• Citation: 451 F. Supp. 522
• Parties: Eli RAITPORT v. PROVIDENT NATIONAL BANK, James Tracey, III, W. R. Solvibile, Richard W. Hopkins, Walter M. Dinda, Alan Cooper, Americo V. Cortese, Prothonotary, A. Smukler, Edward Kelly, Joseph A. Sullivan, Sheriff, Mansfield Carrafiello, Kolen & Lerch, Joseph S. Kolen, jointly, Individually or in alternative.
• Court: U.S. District Court — Eastern District of Pennsylvania

451 F. Supp. 522

Eli RAITPORT v. PROVIDENT NATIONAL BANK, James Tracey, III, W. R. Solvibile, Richard W. Hopkins, Walter M. Dinda, Alan Cooper, Americo V. Cortese, Prothonotary, A. Smukler, Edward Kelly, Joseph A. Sullivan, Sheriff, Mansfield Carrafiello, Kolen & Lerch, Joseph S. Kolen, jointly, Individually or in alternative.

Civ. A. No. 76-3572.

United States District Court, E. D. Pennsylvania.

April 12, 1978.

COPYRIGHT MATERIAL OMITTED

Eli Raitport, pro se.

Mark Sendrow, Philadelphia, Pa., for Smukler and Kelly.

Jonathan Vipond, III, Philadelphia, Pa., for Cortese, Dinda, Hopkins and Cooper.

John R. Howland, Philadelphia, Pa., for Kolen & Lerch, and Joseph S. Kolen.

Sheldon C. Jelin, Philadelphia, Pa., for Provident National Bank and Tracey.

Gary W. Calvin, Philadelphia, Pa., for Solvibile.

Michael N. Silver, Asst. City Sol., Philadelphia, Pa., for Sullivan and Carrafiello.

OPINION

LUONGO, District Judge.

Eli Raitport filed the complaint in this action pro se, seeking both damages and injunctive relief under the 1871 Civil Rights Act, 42 U.S.C. §§ 1983, 1985 (1970), and under sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976). The defendants— Provident National Bank and its counsel, various state and local government officials, several private individuals, and a local real estate firm—are linked by reason of their involvement in the events leading up to a sheriff's sale on December 6, 1976, at which a house owned by Raitport was sold to the high bidder. The governmental defendants, who have filed no answers, now move to dismiss the complaint for failure to state a claim, asserting absolute "quasi-judicial" immunity. Fed.R.Civ.P. 12(b). See generally Imbler v. Pachtman, 424 U.S. 409, 423 n. 20, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (origin of "quasi-judicial" in this context). In addition, all but one of the private defendants seek dismissal of the complaint for failure to state a claim. For the reasons hereafter stated, I conclude that the complaint must be dismissed as to some, but not all, of the governmental defendants, and as to some, but not all, of the private defendants.

Taking as true all the material allegations of Raitport's rather sketchy pro se complaint, Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam), the facts in this case may be summarized as follows. In 1975, Provident National Bank (Provident) brought an action in assumpsit against Raitport in the Court of Common Pleas of Philadelphia County. The amount demanded was "approximately $4,000." Complaint ¶ 6. Raitport in turn filed an answer and various counterclaims totalling more than $20,000, this amount "clearly appearing on the face of the counterclaims." Id. On June 21, 1976, the prothonotary, defendant Cortese, nevertheless docketed a certificate of readiness executed by Provident's counsel, defendant Tracey, which falsely stated that the amount in controversy did not exceed $10,000. See generally C.P.Phila.R. 150(B)(11). Based on this representation, and in accordance with court rules, the case then was submitted to a panel of three attorneys voluntarily serving as arbitrators. See generally C.P.Phila.R. 180; Pa.Stat.Ann. tit. 5, § 30 (Purdon Supp. 1977) (enabling legislation). Raitport received notice of a hearing before the panel, but he declined to attend, believing that the panel lacked jurisdiction because the actual amount in controversy exceeded $10,000. At the hearing, on October 6, 1976, the arbitrators—defendants Hopkins, Dinda, and Cooper—found in favor of Provident both on its original complaint and on Raitport's counterclaims. Defendant Cortese entered judgment on this award on November 1, 1976. See generally Pa.Stat. Ann. tit. 5, §§ 53, 54 (Purdon 1963).

Provident then obtained a writ of execution from defendant Cortese. See generally Pa.R.Civ.P. 3102, 3103. This writ ordered defendant Sullivan, the Sheriff of Philadelphia County, to sell a house owned by Raitport and leased by him to Scientronic Corporation. Sullivan posted on the subject property notice of the forthcoming public sale. See generally Pa.R.Civ.P. 3129. (On November 28, 1976, Raitport filed in the Court of Common Pleas a motion to strike both the judgment in favor of Provident and the writ of execution. The record does not disclose what action, if any, the court took on this motion.) On December 1, 1976, Raitport delivered to Sheriff Sullivan a claim that the subject property could not be sold by reason of art. I, § 17 of the Pennsylvania Constitution,¹ and, on behalf of Scientronic Corporation, a property claimer, which in certain circumstances would mandate that execution be stayed. See Pa.R. Civ.P. 3121(a)(3) (execution shall be stayed "pending disposition of a property claim filed by a third party") (emphasis supplied). On December 3, 1976, Raitport telephoned the sheriff's office to press his contention that the sale could not lawfully be carried out. Defendant Carrafiello, who evidently is a deputy sheriff, advised Raitport that the sheriff's office "does not apply the law." Amendment to the Complaint (Document No. 9), ¶ 35. "On December 6, 1976, the house was sold by Sheriff Sullivan to defendant Joseph Kolen and/or defendant Kolen & Lerch." Id. ¶ 36.

One month prior to the sale, Raitport attempted to file criminal complaints against defendants Tracey (Provident's counsel), Solvibile, and Hopkins, Dinda, and Cooper (the three arbitrators). See generally Pa.R.Crim.P. 133(B). Defendant Smukler, an assistant district attorney for Philadelphia, "arbitrarily and capriciously" refused to approve the complaints, thereby preventing the issuance of process against those persons. Complaint ¶ 27. In addition, defendant Kelly, a detective assigned to Smukler's complaint-screening unit at the district attorney's office "interfered" with Raitport's attempt to file criminal complaints. Id. ¶ 30.

Based largely on the foregoing facts, along with some conclusory allegations of conspiracies among the defendants, Raitport asserts claims under both the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1976), and the 1871 Civil Rights Act, 42 U.S.C. §§ 1983, 1985 (1970). All eight governmental defendants move to dismiss the complaint for failure to state a claim, principally on the ground of absolute "quasi-judicial" immunity. The private defendants also seek dismissal of the complaint. In considering these motions, I will deal first with the civil rights claims, and then turn to the antitrust claims.

SECTION 1983

Raitport's civil rights claims are based in part on section 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 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."

As I noted earlier, Raitport seeks both damages and injunctive relief under section 1983. For the sake of convenience, I will first consider each governmental defendant's claim of immunity from a section 1983 action for damages, and then consider whether an action for injunctive relief may be maintained. See generally Wood v. Strickland, 420 U.S. 308, 315 n. 6, 95 S.Ct. 992, 997, 43 L.Ed.2d 214 (1975) ("Immunity from damages does not ordinarily bar equitable relief as well."); Briggs v. Goodwin, 569 F.2d 10, 15 n. 4 (D.C. Cir. 1977) (majority opinion), 46 n. 62 (Wilkey, J., dissenting) (same). Finally, I will examine the contention, advanced by one of the private defendants who is being sued under section 1983, that the complaint fails to state a claim under that section as to him.

Damages

With respect to the section 1983 action for damages, the governmental defendants seek to avail themselves of the doctrine of judicial immunity, as set forth in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).² Ray was a section 1983 action brought by civil rights demonstrators against several police officers who arrested them and against Spencer, "a municipal police justice" who tried, convicted, and sentenced the demonstrators. 386 U.S. at 549, 87 S.Ct. 1213. The Court of Appeals for the Fifth Circuit set aside a jury verdict against the officials, and the Supreme Court affirmed. Chief Justice Warren, writing for seven other Justices, stated, in the language that is most pertinent here:

"We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court. Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly and it `is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.' Citation omitted. It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless

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