Sopp v. Gehrlein, Civ. A. No. 1044.

• Decision Date: 10 June 1964
• Docket Number: Civ. A. No. 1044.
• Citation: 232 F. Supp. 881
• Parties: Margaret SOPP, Plaintiff, v. Arthur E. GEHRLEIN, Chester J. Miller, Herman Nowak, Donald W. Gunter, Michael J. Kinecki, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

232 F. Supp. 881

Margaret SOPP, Plaintiff, v. Arthur E. GEHRLEIN, Chester J. Miller, Herman Nowak, Donald W. Gunter, Michael J. Kinecki, Defendants.

Civ. A. No. 1044.

United States District Court W. D. Pennsylvania.

June 10, 1964.

George Schroeck, Harrisburg, Pa., for plaintiff.

Chase, Hanes, Bifulco & Mangan, Erie, Pa., for Gehrlein, Miller, Nowak and Gunter.

Agresti & Agresti, Erie, Pa., for Kinecki.

Wm. E. Pfadt, Erie, Pa., for 4 above defendants.

Lawrence R. Nelson, Erie, Pa., for Kinecki.

WILLSON, District Judge.

In this civil action plaintiff Margaret Sopp invokes the jurisdiction of the Court under 42 U.S.C.A. § 1983. The plaintiff charges the five named defendants with violation of her civil rights as protected in the statute cited in that they under color of law in their official capacities as officials of the City of Erie deprived plaintiff of her civil liberties and immunities guaranteed under the Fourteenth Amendment. The complaint is unnumbered, but divided into two parts under I and II. At the conclusion of I, it is averred as follows:

"Chester J. Miller was acting chief of police and while acting under color of law ordered and directed the arrest, detention, and physical and mental abuse of the plaintiff.

"Herman Nowak was a sergeant of the City of Erie police force, and while acting under color of law, filed the false and fraudulent information against the plaintiff, arrested her at her place of employment, communicated the slanderous and libelous charges to Plaintiff's employer and fellow workers, forcibly and publicly removed her from her place of employment forcibly confined and detained her in the City of Erie jail incommunicado, and further abused her while so confined.

"Donald W. Gunter was a police officer of the City of Erie police force, and, while acting under color of law, fingerprinted and photographed Plaintiff and slandered and abused her while so doing.

"Michael J. Kinecki was the police magistrate of the City of Erie, and, while acting under color of law, without probable cause, falsely and maliciously issued the warrant for Plaintiff's arrest, mistreated and abused her when she was brought before him, and falsely and needlessly imprisoned her.

"Arthur E. Gehrlein was acting as the official handwriting expert for the City of Erie police force, and, while acting under color of law, falsely accused Plaintiff of the crime charged against her and issued libelous statements concerning her alleged guilt."

Plaintiff is a mature woman and alleges that she has been happily married for many years. She is of the white race.

On page three of the complaint under part II plaintiff recites her damages and again avers that the defendants acting in concert without just or probable cause or provocation, and under color of their authority as such law enforcement officials caused plaintiff to be slandered and among other things to be arrested, fingerprinted, and to be falsely and fraudulently accused of the most degrading sexual crime, i. e. solicitation to commit sodomy, and finally, in subheading (e) to have said charges communicated to her employer and her fellow workers causing her to lose her job, and under (f) it is said that the charges have been spread on the arrest dockets of the City of Erie and the Erie County Prison.

Defendant Michael J. Kinecki has filed a timely motion to dismiss the complaint. He also joins the other defendants in a Motion for Summary Judgment under Rule 56(b) and (c) of the Rules of Civil Procedure. Depositions in support of the motions have been filed, as well as an affidavit from each defendant. Mrs. Sopp's counteraffidavit attached to her counsel's brief also has been duly considered. Counsel have been heard orally on the motions. At the argument it was conceded as appears in the complaint that there is no diversity of citizenship, and that this complaint must stand or fall on the allegations invoked as coming within the purview of the Civil Rights Act. On behalf of the police magistrate Michael J. Kinecki, who issued the warrant on which plaintiff was arrested, counsel contend that there are allegations of fact in the complaint which would justify the conclusion that the defendant Kinecki acted without probable cause. He is charged with falsely and maliciously issuing the warrant for plaintiff's arrest, and with mistreating and abusing the plaintiff, yet there is nothing pleaded except conclusions, says counsel; and this Court agrees. As to the other defendants, counsel says the affidavits and depositions also indicate that there is no genuine issue as to any material fact in this case. It is to be observed first that the allegations are not precise with respect to factual averments. An inspection of the complaint shows that it is averred that Chester J. Miller, the Chief of Police, ordered and directed the arrest, detention, and physical and mental abuse of the plaintiff, but there is no allegation as to exactly what he did in the way of physical or mental abuse, or in what respect he acted under color of law. The same can be said as to the remaining allegations in the complaint relating to the other officers. It is charged for instance that Arthur E. Gehrlein, who was acting as the official handwriting expert for the City of Erie police force, and while acting under color of law, falsely accused plaintiff of the crime charged against her and issued libelous statements concerning her alleged guilt without particularly indicating exactly what Gehrlein did with respect to causing plaintiff's arrest.

A careful reading of the affidavits submitted and of the depositions and especially of the depositions of Frederick R. Filburn and Harlan J. Litteral, who were Postal Inspectors, and Richard V. Scarpitti, the Assistant District Attorney and afterwards the District Attorney of Erie County, indicates that the investigation was commenced on the complaint of plaintiff herself. It was undertaken by the city officials in conjunction with the Postal Inspectors. Two city detectives were assigned to investigate the case. The affidavit of the defendant Herman Nowak indicates that he was assigned in the regular course of duty to investigate receipt of obscene letters by one Nancy Wilson. He communicated with Postal Inspector Filburn, who requested assistance in making a complete investigation of the case. Filburn had been working on the case and had gathered some evidence. Handwriting samples reported to be those of Margaret Sopp were taken to Mr. Gehrlein for the purpose of identification. Mr. Gehrlein advised the detectives that the letters addressed to Nancy Wilson and signed "Maggie Sopp" were written by the same person, Margaret Sopp, who had given a sample...