The opinion of the court was delivered by: GOURLEY
In conjunction with a motion to dismiss now pending before this court, the plaintiff has moved that Horace Stern be ordered to answer certain interrogatories pursuant to Federal Rules of Discovery.
The interrogatories are designed to develop evidence in support of plaintiff's allegations of an alleged conspiracy on the part of Horace Stern, Chief Justice of the Pennsylvania Supreme Court, and Patrick N. Bolsinger, Prothonotary of the Western District of the Supreme Court of Pennsylvania, to deprive plaintiff of rights and privileges secured by the Federal Constitution and laws of the United States, more particularly the statutes known as the Civil Rights Acts, as well as to obstruct and defeat the due course of justice with intent to deny to plaintiff the equal protection of the laws.
For purpose of disposition of this motion, resolving as we must all factual issues in favor of the plaintiff, and with the consent of the contesting parties, it will be assumed that the per curiam order of Chief Justice Stern was entered on his own individual volition without consultation or consent of the other justices of said court, and the Prothonotary was directed by the Chief Justice of the Supreme Court of Pennsylvania not to file or docket said proceeding. Generally in the usual or common type of litigation, and without consideration of the merits of this proceeding, it would appear that said action and procedure followed was contrary to established rule and custom and would be violative of basic concepts of justice.
In view of the fact that all plaintiff's allegations are assumed to be true, for purposes of the said motion to dismiss, no useful purpose could be served at this time by answering interrogatories aimed at eliciting information which for all intents and purposes are now construed in a light most favorable to plaintiff.
It would, therefore, appear appropriate that plaintiff's motion to compel Horace Stern to answer said interrogatories be refused, without prejudice to revive the same in the event that future circumstances may so justify.
An appropriate Order is entered.
This action is by a Pittsburgh attorney against the Chief Justice of the Supreme Court of Pennsylvania and the Prothonotary of that court for its Western District, and premises jurisdiction in this court upon the Civil Rights Act, as amended, 42 U.S.C.A. §§ 1983, 1985, 1986.
In considering a motion to dismiss, the complaint must be viewed in a light most favorable to the plaintiff, and should not be dismissed unless it appears to a certainty that plaintiff would not be entitled to relief under any state of facts which could be proved in support of the plaintiff's claim, and no matter how likely it may seem that the plaintiff would be unable to prove its case, it is entitled upon averring a claim to an opportunity to prove it. The truth of all facts well pleaded is admitted, including facts alleged on information and belief. Frederick Hart & Co., Inc., v. Recordgraph Corp., 3 Cir., 169 F.2d 580.
The complaint charges the defendants with having conspired to deprive him of rights and privileges secured by the Federal Constitution and laws of the United States, more particularly the statutes known as the Civil Rights Acts, as well as to obstruct and defeat the due course of justice with intent to deny to plaintiff the equal protection of the laws.
The defendants' conduct of which the plaintiff complains was their refusal to file of record in the office of said Prothonotary, with an assigned number, a certain petition of the plaintiff, addressed to the judges of the Pennsylvania Supreme Court, wherein the plaintiff sought disciplinary action against a judge of the Court of Common Pleas of Allegheny County, the fifteen members of the Committee on Offenses of the latter court, and four individual members of the bar of said court.
The basic allegations of the complaint are that Chief Justice Stern ordered that the petition be not filed; that the Prothonotary complied with said order, has not filed the petition of record or given it a docket number, and informed the plaintiff that the petition would be retained by him personally; and that the conduct of the defendants was conspiratorial and has deprived the plaintiff of his rights and privileges as a citizen of the United States and of Pennsylvania.
The present complaint discloses that the petition in question was presented under Rule 17 of the Pennsylvania Supreme Court;
that it was transmitted by the Prothonotary to the Chief Justice; and that thereafter it was returned to the Prothonotary with an order of the court endorsed thereon in longhand, as follows:
'Petition dismissed. Per Curiam. June 28, 1954.'
The instant complaint specifically charges that the matters complained of are directed against the defendants as having acted in their official capacities ...