Salvati v. Dale, Civ. A. No. 73-461

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Citation: 364 F. Supp. 691
• Docket Number: Civ. A. No. 73-461,73-572.
• Parties: Raffaelina SALVATI, Individually & t/d/b/a Garden of Eve v. George DALE et al. Raffaelina SALVATI, Individually & t/d/b/a Garden of Eve, et al. v. Jack NORRIS, Zoning Officer of the Borough of Monroeville, et al.
• Decision Date: 05 October 1973

364 F. Supp. 691

Raffaelina SALVATI, Individually & t/d/b/a Garden of Eve v. George DALE et al.

Raffaelina SALVATI, Individually & t/d/b/a Garden of Eve, et al. v. Jack NORRIS, Zoning Officer of the Borough of Monroeville, et al.

Civ. A. Nos. 73-461, 73-572.

United States District Court, W. D. Pennsylvania.

October 5, 1973.

Allen N. Brunwasser, Pittsburgh, Pa., for plaintiffs.

Richard L. Rosenzweig, Pittsburgh, Pa., for defendants.

OPINION

SNYDER, District Judge.

The above causes of action arise from a common factual situation and are for convenience here treated together. The plaintiffs are owners and employees of an establishment known as the Garden of Eve. The Garden is located in a multi-occupancy building in the Borough of Monroeville, Allegheny County, Pennsylvania. The Borough filed a Complaint in Equity in the Common Pleas Court of Allegheny County at No. 2028 July Term, 1973, seeking an injunction to close the Garden alleging a failure by the plaintiffs to comply with various Ordinances of the Borough and with the Pennsylvania Municipalities Planning Code.¹

On June 1, 1973, Judge Hester of that Court issued a preliminary injunction; preliminary objections were filed June 4, 1973. On June 6, 1973, counsel for the Garden petitioned the Commonwealth Court for an Order of Supersedeas; this was denied June 19, 1973. On June 25, 1973, Judge Hester issued an Order making the preliminary injunction permanent.²

Four separate actions have been filed by plaintiffs (defendants in the court proceedings in Allegheny County Court) in federal court. Only two, as captioned above, concern us at this time.³ In Civil Action No. 73-461, plaintiffs seek to set aside Borough of Monroeville Ordinance No. 836 which defines massage parlors as disorderly houses, and also seek damages, asking that there be:

"B. Declaratory and injunctive relief striking down the above-described ordinances and ordering defendants to terminate the illegal course of action described above;

"C. That the matter be sent to a jury for assessment of damages under the Civil Rights Act and other laws providing for damages;

"D. Any other relief deemed necessary and proper by this Honorable Court."

The defendants in that action are George Dale, Tom Sherger, Miles Span, Warner Baum, Ron Drouski, Bill Bradley, Lavern Gardner, individually and as Councilmen of the Borough of Monroeville, John Duncan, individually and as Mayor of the Borough of Monroeville, and George Gregowich, individually and as Chief of Police of Monroeville Borough.

On July 5, 1973, the defendants filed an Answer alleging, inter alia, failure to state a cause of action and setting up immunity from suit. The defendants counterclaimed under 42 U.S.C. Section 1985 for damages and injunctive relief to prevent further threats or intimidation of Borough Officers. On July 16, 1973, the plaintiffs moved to dismiss the counterclaim to which defendants filed an answer.

On August 1, 1973, plaintiffs filed a Motion to Amend Civil Action alleging that on July 27, 1973 the defendants padlocked the premises of the plaintiff, purportedly under the authority of Ordinance No. 730 allowing the Mayor to padlock a "disorderly house". In addition, the amendment sought to add Anthony Williams as a plaintiff asserting an illegal arrest when Williams, after the premises was padlocked, was arrested for burglary as he attempted to enter the premises (having been sent there by the plaintiffs to take off the padlock). On August 2, 1973, the defendants filed a Motion to Strike the Amended Complaint or In The Alternative to Dismiss with the original Complaint, setting forth that the padlocking was done pursuant to the Order of Judge Hester and not pursuant to the Ordinance. The caption of the Amended Complaint charged as defendants the same parties as were charged in Civil Action No. 73-572.

In Civil Act No. 73-572, the plaintiffs brought action against Jack Norris, Zoning Officer of the Borough of Monroeville, Eugene Coon, Sheriff of Allegheny County, Pennsylvania, John P. Hester, a Judge of the Court of Common Pleas of Allegheny County, Pennsylvania, George Gregowich, Chief of Police of Monroeville Borough, John Michaels, Sergeant of Police of Monroeville Borough and Marshall W. Bond, Acting Manager of the Borough of Monroeville. To attempt to provide some coherence and consistency to these pleadings, we will assume this Amended Complaint should have been filed at Civil Action No. 73-572 by the plaintiffs.

In Civil Action No. 73-572, the plaintiffs alleged primarily that Judge John P. Hester improvidently issued a preliminary injunction and improperly extended the injunction, and they sought:

"B. A temporary and permanent injunction directing that all conduct complained about in this Complaint cease;

"C. An Order revoking the Orders of the state court entered on June 1, 1973 and June 25, 1973;

"D. An Order that all improper publication of information in any news media, especially if it is intended to influence the state court, cease forthwith;

"E. A declaratory Order that the conduct discussed in the within Complaint is illegal and contrary to Federal law, the Federal Constitution and Pennsylvania law and the Pennsylvania Constitution;

"F. An Order that defendant's process the request of plaintiff, Garden of Eve, for an occupancy permit and issue same;

"G. An Order that all special legislation discussed above be rendered null and void under the Declaratory Judgment Act and that an injunction issue directing that no conduct allegedly in violation of said Ordinance be prosecuted;

"H. Any other equitable and just relief deemed necessary by this Honorable Court."

On July 20, 1973, the defendants filed a Motion to Dismiss setting forth:

(1) the pendency of the action at No. 73-461 containing the same allegations;

(2) the res adjudicata effect of the Orders of this Court at Nos. 73-524 and 73-528;

(3) failure to state a cause of action on which relief can be granted.

For the reasons hereinafter set forth defendants' Motion to Dismiss will be granted and the defendants' Counterclaim will be dismissed.

GENERAL DISCUSSION

These lawsuits arise from the attempts by the plaintiffs to open a massage parlor in the Borough of Monroeville, and the Borough's opposition to the opening of such an establishment. The plaintiff, Raffaelina Salvati, applied for an occupancy permit on behalf of the Garden of Eve on May 1, 1973. This application was given a number and a date of issuance, but the portion on the reverse side of the application which provides for the approval of the Zoning Officer was never executed nor was the paper ever delivered to the plaintiffs. The Borough contends, and we find, that the Borough's Zoning Officer originally acted on the proposition that the proposed use would be for a health spa which would include body massage, and that such use would fall within the permitted uses of a C-2 Zoning District (the location of the plaintiffs' business was in a C-2 area). Shortly thereafter, the Zoning Officer received information that the proposed use of the premises was for complete body rubs to be administered by topless female attendants. The local newspaper in the Monroeville area ran an article concerning the application for an occupancy permit made by Raffaelina Salvati and included in the article certain statements made by the acting manager of the parlor, identified only as "Tina", about the services to be supplied by the Garden of Eve to its patrons.⁴ This article resulted in numerous phone calls from borough residents and the Zoning Officer rejected the occupancy permit application and notified the Garden of Eve that no permit would be forthcoming. The plaintiffs opened for business without the required occupancy permit.

Then an ordinance was passed at a special meeting of the Borough Council held May 12, 1973 which redefined a disorderly house to include a massage parlor⁵ of a type identical to that which the plaintiffs had opened without the required occupancy permit. The Borough then sought injunctive relief in the Court of Common Pleas of Allegheny County, and the defendants in that action, through their attorney, have filed the subject complaints in this Court.

I. CAUSE OF ACTION AGAINST JUDGE HESTER

In Civil Action No. 73-572, one of the defendants is the Honorable John P. Hester, a Common Pleas Court Judge, who was assigned the action in which the plaintiffs here are party defendants in the state court. The charges of plaintiffs concerning Judge Hester relate to his issuance of the preliminary injunction and its continuance.⁶

The law is well settled that judicial officers are immune from suit under the Civil Rights Act for acts undertaken in the performance of their duties. Pierson v. Ray, 386 U.S. 547, 87 S.Ct.

COPYRIGHT MATERIAL OMITTED 1213, 18 L.Ed.2d 288 (1967); Robinson v. McCorkle, 462 F.2d 111 (3d Cir. 1972); Gaito v. Ellenbogen, 425 F.2d 845 (3d Cir. 1970); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) and cases cited therein; Burak v. Sprague, 335 F. Supp. 347 (E.D.Pa.1971); Burton v. Peartree, 326 F.Supp. 755 (E.D.Pa. 1971). From the allegations presented against Judge Hester at Civil Action No. 73-572, we can only conclude that plaintiffs' action against the judge is based on the adverse rulings by the Court of Common Pleas of Allegheny County against the plaintiffs here (defendants in the state court action).

In Pierson v. Ray, supra, (386 U.S. p. 553, 87 S.Ct. p. 1217), the Supreme Court held:

"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

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