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Picking v. Pennsylvania R. Co.

decided: August 28, 1945.

PICKING ET AL.
v.
PENNSYLVANIA R. CO. ET AL.



Author: Biggs

Before BIGGS, Circuit Judge, and FORMAN and LEAHY, District Judges.

BIGGS, Circuit Judge.

Ida M. Picking and Guy W. Picking brought suit against The Pennsylvania Railroad Company, a Pennsylvania corporation, and twenty-three individual defendants, claiming compensatory and punitive damages totalling $1,120,050. The plaintiffs allege that they are citizens of Maryland. Thirteen of the individual defendants are alleged to be citizens of Pennsylvania; ten of the individual defendants are alleged to be citizens of New York. Jurisdiction is based first upon diversity of citizenship and there is an allegation of jurisdictional amount. Jurisdiction of the cause is also asserted to lie in the District Court by virtue of the provisions of the Constitution of the United States*fn1 and of certain federal statutes.*fn2

Mrs. Picking appears pro se and also for the other plaintiff, her husband. She has stated that she is a member of the bar but her pleading is inept. The complaint contains one hundred and fifty-four paragraphs and is difficult to follow and understand. The suit was dismissed on the motions of certain of the defendants. It is appropriate, therefore, to refer to the decisions of the Supreme Court in Polk Co. v. Glover, 305 U.S. 5, 59 S. Ct. 15, 83 L. Ed. 6; and Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S. Ct. 187, 79 L. Ed. 281. In the latter case it was said by Mr. Justice Stone and Mr. Justice Cardozo in the concurring opinion, id. 293 U.S. at page 213, 55 S. Ct. at page 193, 79 L. Ed. 281, "We are in accord with the view that it is inexpedient to determine grave constitutional questions upon a demurrer to a complaint, or upon an equivalent motion, if there is a reasonable likelihood that the production of evidence will make the answer to the questions clearer." The court below should have applied the rule of Ghadiali v. Delaware State Medical Society, D.C.Del., 48 F.Supp. 789, 790, and Allen v. Corsano, D.C.Del., 56 F.Supp. 169, 170, that where a plaintiff pleads pro se in a suit for the protection of civil rights the court should endeavor to construe the plaintiff's pleading without regard for technicalities.

The following appears from the exhibits attached to the complaint. On November 1, 1940 Mrs. Picking and her husband were arrested in New York City and charged with the misdemeanor of placing an advertisement on a flag of the United States in violation of subdivision 16, par. a of Section 1425 of the Penal Law of New York. Conviction for this misdemeanor might have subjected the plaintiffs to a maximum imprisonment of one year and a fine not exceeding $500. On or about November 26, 1940 an information was filed by the defendant, Thomas E. Dewey, then District Attorney of New York County, in the Court of Special Sessions, County of New York, charging the plaintiffs with the commission of the misdemeanor.

What then happened in New York is far from clear. There is some indication from notations on the back of the copy of the information that the Pickings were convicted of the misdemeanor charged and put upon parole; that on February 5, 1941 Mrs. Picking's parole was revoked and a bench warrant was issued for her. The copy of the bench warrant attached to the complaint in the case at bar indicates, however, that the Pickings had not been tried. If a bench warrant was issued for Mr. Picking no copy of it is attached to the complaint. It appears that Mrs. Picking could not be found in the State of New York for on September 8, 1941 an affidavit of flight was made by the defendant Bryant, a New York City policeman as a principal complaining witness, stating that he was informed by a detective of the Police Force of New York City that Mrs. Picking had been arrested in Chambersburg, Pennsylvania, and was in custody there "pending the action of the executive of this state in the institution of proceedings for her extradition." On September 9, 1941 District Attorney Dewey issued a request to the defendant Herbert H. Lehman, then Governor of New York, for a requisition upon the defendant Arthur H. James, then Governor of the Commonwealth of Pennsylvania, seeking the extradition of Mrs. Picking as a fugitive from the justice of the State of New York. If a request was also made for the extradition of Mr. Picking, no copy of it is attached to the complaint. In his application to Governor Lehman Mr. Dewey named the defendants Fitzpatrick and Graham and one Dwyer as agents to bring the Pickings back to New York.

Governor Lehman issued a request to Governor James for the arrest and extradition of Mrs. Picking from Pennsylvania. On or about September 13, 1941, an assistant deputy attorney general of the State of Pennsylvania informed Governor James in writing that the requisition for the rendition of Mrs. Picking was in due form and complied with all requirements of law. On September 13, 1941, a governor's warrant, addressed to any peace officer in the Commonwealth of Pennsylvania, was issued by Governor James for the arrest of Mrs. Picking. The copy of the return to the governor's warrant attached to the complaint states that the defendant Winger executed the warrant on August 15, 1941, purportedly twenty-nine days before the issuance of the warrant by Governor James as shown by its face. It is difficult to see how a warrant can be executed prior to its issuance. The date of execution shown upon the return may be erroneous or the executing officer may have arrested Mrs. Picking prior to the issuance of the warrant in expectation of its issuance and made the return in the form indicated for this reason. These questions cannot be answered on the present record.

Turning now to the complaint as distinguished from the exhibits attached to it, we find that it alleges in substance that on August 15, 1941 at Greencastle, Pennsylvania, the defendants Sweeney, Mackey and Rotz "forcibly and unlawfully seized the plaintiffs" in order to imprison them; that this seizure was based on a telegram sent by the defendant Judge Louis Costuma which, in turn was "based on a Bench Warrant issued by [him as] a justice of an inferior court of New York City"; that "the authority to arrest [the Pickings] thereunder was limited" to New York City; that the bench warrant was "unlawfully issued on a falsified and substituted pleading" in that the original complaint filed against the plaintiffs charged them with displaying a flag picture, with an advertisement on their car whereas the substituted pleading charged the plaintiffs with placing an advertisement upon a flag of the United States on their car; that the defendants Sweeney, Mackey and Rotz used undue force in arresting the plaintiffs and inflicted physical injuries upon them in making the arrest. The complaint also alleges that following this arrest, the defendant was denied a hearing by the defendant Kieffer, a justice of the peace, and that they were imprisoned in the Franklin County jail in Chambersburg by the defendants, the Kells, "without lawful commitments"; that their imprisonment in the Franklin County jail continued on August 16 and that there a petition for a writ of habeas corpus was taken from them by the defendants Benedict, Davidson and the Kells; that on August 16 they were assaulted and injured in the Franklin County jail by the defendants Pouchyba and one of the Kells and were subjected to physical indignities.

The complaint alleges further that at Harrisburg, Pennsylvania, on September 13, 1941, Governor "James unlawfully and maliciously issued purported warrants for the unlawful seizure of plaintiffs on the basis of pretended proceedings for extradition instituted by New York defendants who were falsely purporting to act for the People of the State of New York." There follow a number of paragraphs the contents of which are unintelligible but which seem to charge Governor James with knowledge of certain asserted deficiencies in respect to an unidentified affidavit. Next come allegations that the applications of District Attorney Dewey for requisitions for the plaintiffs to Governor Lehman were insufficient in law, that he maliciously omitted "the true first pleading from his * * * application" and falsified certain other pleadings which were attached to his application for rendition; that Mr. Dewey caused the defendant Bryant to falsify the affidavit of flight hereinbefore referred to; that Mr. Dewey was induced to embark upon this allegedly fraudulent course by the defendants Smythe, Carey, Frooks and Rao.

The complaint also asserts that the original arrest or seizure of the plaintiffs was without warrant of any kind; that the governor's warrant hereinbefore referred to was issued after the plaintiffs' arrest and imprisonment at Chambersburg; that the plaintiffs were taken unlawfully to Harrisburg by certain of the defendants;*fn3 that Mrs. Picking was robbed of $10 by the defendant Graham; that over their protests, on September 15, 1941, they were transported from Harrisburg to New York by the defendant, The Pennsylvania Railroad Company. There is no allegation in the complaint stating what transpired upon the arrival of the plaintiffs in the State of New York. In several paragraphs of the complaint it is alleged that the unlawful acts were instituted and encouraged by all of the defendants with the exception of Government James, Mr. Dewey and The Pennsylvania Railroad Company, but that these defendants "adopted" all the unlawful acts complained of as their own. Other paragraphs of the complaint allege, however, that the defendants, The Pennsylvania Railroad Company, James, Lehman, Dewey, Bryant, Graham, Fitzpatrick, Keiffer, Byer, and Winger "materially and physically participated defendants with the exception of Governor 15, 1941, and the "said unlawful acts were instigated and encouraged by all of the other defendants."

The complaint and the exhibits attached to it in but few instances state the official status of the individual defendants. It appears, however, either from the complaint or the exhibits that the defendant James was Governor of Pennsylvania, that the defendant Lehman was Governor of New York, that the defendant Dewey was District Attorney of New York County, that the defendant Costuma was a magistrate in New York City, that the defendants Fitzpatrick and Graham were detectives of the New York City Police Force designated by Governor Lehman to bring the plaintiffs from Pennsylvania to New York, that the defendant Bryant was a member of the Police Force of the City of New York, that the defendant Winger was an officer entrusted with the task of executing the warrant of the Governor of Pennsylvania, and that the defendant Keiffer was a justice of the peace serving in Pennsylvania. It does not appear, however, either from the complaint or the exhibits attached to it that the other individual defendants were peace officers or officials of either the Commonwealth of Pennsylvania or of the State of New York. The learned District Judge took judicial notice that Governor James was the Chief Executive of the Commonwealth of Pennsylvania at the time of the happening of the events complained of and that the other individual Pennsylvania defendants possessed official status as peace or law enforcement officers of the Commonwealth of Pennsylvania.

As to the official status of the defendants James, Keiffer and Winger, the exercise of the principle of judicial notice was unnecessary. As to the other individual Pennsylvania defendants we are of the opinion that the court below was justified in employing that principle to afford them the status of officers or officials of the Commonwealth of Pennsylvania or of political subdivisions thereof. We entertain no doubt that "the requisite notoriety" existed. See Brown v. Piper, 91 U.S. 37, 42, 43, 23 L. Ed. 200. We conclude as well that judicial notice may be taken of the official status of the individual New York defendants

The complaint contains frequent references to the Uniform Criminal Extradition Act adopted both by the Commonwealth of Pennsylvania and the State of New York. See 19 P.S.Pa. §§ 191.1-191.31 and McKinney's Criminal Code, §§ 827-859. The complaint pleads the Criminal Extradition Act and states that the offense with which the plaintiffs were charged in New York was a misdemeanor subject to a maximum penalty of a year's imprisonment; that therefore they could not be arrested lawfully in Pennsylvania and held for extradition in the absence of a warrant.*fn4 The complaint pleads that the defendants also acted in breach of the Criminal Extradition Act because the plaintiffs were not taken immediately before a judge of a court of record in Pennsylvania so that the legality of their arrest might be determined;*fn5 that every proceeding taken against them was illegal because the form of the request made by Governor Lehman and recognized by Governor James was not in accordance with the Act.*fn6

None of the New York defendants was served with process and none has appeared. All of the individual Pennsylvania defendants filed or joined in motions to dismiss which with certain exceptions are substantially the same. The grounds of these motions insofar as we ...


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