Rumfola v. Murovich
| Decision Date | 08 October 1992 |
| Docket Number | No. C.A. 88-2618.,C.A. 88-2618. |
| Citation | 812 F. Supp. 569 |
| Parties | Tony RUMFOLA, Plaintiff, v. Vincent MUROVICH, William Drylie, Hector Leroy, Anthony G. Marsili, Donald Japalucci, Judith Ciszek, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Tony Rumfola, pro se.
Vincent Murovich, Pittsburgh, PA, Peter F. Troglio, Jeannette, PA, Paul J. Elias, Greensburg, PA, A. Taylor Williams, Philadelphia, PA, for defendants.
This case has its origin in an arrest and preliminary hearing held in state court.1 On or about February 18, 1982, defendant William Drylie, a patrolman with the Jeannette Police Department in Jeannette, Pennsylvania, charged Plaintiff, Tony Rumfola, with criminal conspiracy, deceptive business practices and theft by deception in violation of Pennsylvania criminal laws.2
On March 25, 1982, Mr. Rumfola, together with his attorney, Vincent Murovich and the district attorney, Anthony G. Marsili, agreed to pay the victim restitution and the costs of prosecution in exchange of dismissal of the charges filed against him. District Justice Donald Japalucci presided over the preliminary hearing and approved both the settlement and the dismissal of all charges.3
Plaintiff's federal Complaint and Amended Complaint, filed in the form of less than cogent "narratives," indicate there was a breakdown in the agreement reached to settle this matter. As a result, counsel was appointed to represent Mr. Rumfola throughout the remaining criminal proceedings.
Our review of the materials filed by Plaintiff in support of his federal Complaint reveals that Mr. Rumfola's case was placed into an accelerated rehabilitative disposition program (ARD). Subsequently, a letter from District Attorney John J. Driscoll dated April 6, 1988 stated that Plaintiff's case was scheduled for a revocation hearing, presumably due to Mr. Rumfola's failure to make payment in full pursuant to the restitution agreement. Finally, on November 18, 1988, for reasons unclear on the face of the record before us, Plaintiff's criminal case was nolle prossed.
On November 28, 1988, Mr. Rumfola, acting pro se, initiated this action by filing a Complaint seeking to recover damages for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Another member of this Court, the Honorable Maurice B. Cohill, Jr., granted Plaintiff's Motion to Proceed in Forma Pauperis on November 30, 1988. With the exception of Hector Leroy, all of the Defendants filed motions to dismiss the Complaint.4 (Document Nos. 4, 9, 16, 17, 18). Judge Cohill denied without prejudice Defendants' Motions to Dismiss and granted Plaintiff leave to amend his Complaint.5 (Document No. 24).
Plaintiff filed his Amended Complaint in an attempt to properly plead his claims on August 25, 1989. (Document No. 34). Defendant Vincent Murovich, who is a lawyer representing himself in this action, filed a Motion to Dismiss the Amended Complaint on September 20, 1989. (Document No. 36). By order dated March 27, 1990, Judge Cohill granted Defendant Murovich's motion to dismiss. (Document No. 40).
Plaintiff's Amended Complaint was originally captioned "Motion to Request." This caption was deleted with "white-out" on the document in the Court file, and the caption "Amended Complaint" was added by a different typewriter. The Amended Complaint was filed without a certificate of service on August 25, 1989.
Plaintiff filed on August 31, 1989 a separate document entitled "Certificate of Mailing." (Document No. 35). The Certificate of Mailing indicates that Plaintiff mailed copies of the Amended Complaint to Defendants Marovich sic, Drylie, Japalucci, Marsili and Ciszek, rather than to their attorneys. The Certificate of Mailing states, "Said Motion to Amended sic Complaint mailed this 28 sic day of August, 1989." emphasis added. Document Number 35, the Certificate of Mailing, was not accompanied by its own certificate of service.
After Judge Cohill sent a copy of his Memorandum Order dated March 27, 1990 to all counsel of record, counsel for Defendant Japalucci filed a Motion to Dismiss Amended Complaint on April 11, 1990. (Document No. 41). In the attached Memorandum of Law, Defendant Japalucci, by counsel, avers:
In September, 1989, notwithstanding representation for Defendant Donald Japalucci, this moving Defendant received in the mail a Motion to File an Amended Complaint. Neither counsel for this Defendant nor the Defendant himself has received an Amended Complaint. On or about April 3, 1990, the undersigned received a copy of the Memorandum, Order and Opinion of March 27, 1990, granting Defendant Vincent Murovich's Motion to Dismiss the Amended Complaint. On April 6, 1990, Attorney Nancy Stark of this office contacted the Court and learned that the Motion to File an Amended Complaint was treated as an Amended Complaint. Herewith is the Motion to Dismiss the Amended Complaint.
(Document No. 41, Attached Memorandum at 2). Defendant Japalucci's Motion to Dismiss was served upon the Plaintiff and counsel of record.6
After this member of the Court was assigned to this case, and after Plaintiff filed an additional twenty-two "Motions to Request" or "Notices of Motions," the Court ordered all Defendants to respond to Plaintiff's Motion to Request Ronald Paul Day be entered on the court dockets as co-plaintiff for Civil Action 88-2618 (Document No. 69). This order, dated March 11, 1991, was the first order to affect the rights of Defendants Drylie, Marsili, and Ciszek after the orders granting Plaintiff leave to amend his Complaint and extensions to do so in the spring and summer of 1989. After March 11, 1991, Defendants Marsili and Ciszek and Defendant Japalucci informed the Court by letters that they had not been served with the Motion to Request and asked that copies be provided and an extension be granted. Defendants Marsili and Ciszek also requested a copy of the Amended Complaint, which they stated Plaintiff had never been served upon them. While Defendants Marsili and Ciszek never filed a response to the Motion to Request in question, Defendant Japalucci did. (Document No. 71).
Twenty-one of the final twenty-three docket entries are Plaintiff's motions, and thirteen of those twenty-one motions (Document Nos. 73, 74, 77, 78, 79, 85, 86, 87, 88, 89, 91, 92, 94) seek reconsideration of Judge Cohill's dismissal of Defendant Murovich (Document No. 40.) or of this Court's initial refusal to reconsider Judge Cohill's order dismissing Defendant Murovich. (Document No. 75). All tolled, Plaintiff has filed fifteen motions seeking to have Defendant Murovich brought back into this action. (See also Document Nos. 48 & 50).
In sum, Defendant Murovich has been previously dismissed from this action. Defendant Japalucci has filed a motion to dismiss the amended complaint, despite the fact that Defendants Japalucci, Marsili and Ciszek dispute ever having been served with the Amended Complaint. Defendants Marsili, Ciszek, Drylie and Leroy have not filed motions to dismiss the Amended Complaint.
In reviewing a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) the Court must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). In addition, the Supreme Court has stated that pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
In reading Plaintiff's Complaint and Amended Complaint, it is very difficult to discern a precise factual background in support of the cause or causes of action Plaintiff is attempting to plead. We will therefore give Plaintiff's Complaint and Amended Complaint a very liberal reading in our attempt to construe the bases for his action.7
Previously, another member of this Court granted defendant Murovich's Motion to Dismiss Plaintiff's Amended Complaint.8 Subsequently, Plaintiff filed fifteen motions with respect to the Court's dismissal of defendant Murovich from this action, all of which either seek our reconsideration of Judge Cohill's prior disposition or to charge defendant Murovich with other claims. (See Document Nos. 48, 50, 73, 74, 77, 78, 79, 85, 86, 87, 88, 89, 91 and 94).
Plaintiff's request in this regard was previously considered by this member of the Court and denied pursuant to our Order dated July 12, 1991. (Document No. 75). After this Court's denial of reconsideration, Plaintiff has persisted in attempting to relitigate Defendant Murovich's dismissal. We find no reason to either revisit our earlier disposition or the decision of Judge Cohill, who concluded that since defendant Murovich is not a state public official and did not act under color of state law, his alleged wrongdoings fall without the purview of Section 1983. See Taylor v. Diznoff, 633 F.Supp. 640 (W.D.Pa.1986).
The dismissal of defendant Murovich from this action is deemed by this member of the Court to be the law of the case; Murovich's dismissal will not be reconsidered. In addition, based on our ruling, Plaintiff's pending Motions in which he seeks to charge defendant Murovich with additional wrongdoings are improperly before this Court. Accordingly, all Plaintiff's pending motions relating to Defendant Murovich will be denied.
In his Motion to Dismiss, District Justice Japalucci seeks to avail himself of absolute immunity contending that at all times he was performing judicial acts.
"`Every person' who acts under color of state law to deprive another of a constitutional right shall be...
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Walker v. Stern
...his claims still fail because judges are absolutely immune from liability for theperformance of judicial acts. Rumfola v. Murovich, 812 F.Supp. 569, 573 (W.D.Pa.,1992) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)). In his Complaint, Plaintiff submits that the court "is responsible for t......