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July 27, 1964

Merle Rhea HARDY
John P. KIRCHNER, Capt., Kenneth S. Cliff, Sgt., W. H. Hoover, Alderman, Wm. C. Storb, D.A., Joseph B. Wissler, P. Judge

The opinion of the court was delivered by: BODY

This action was commenced by Merle Rhea Hardy, and inmate of Eastern State Penitentiary, seeking to recover the sum of $ 100,000 as compensatory damages against the following defendants:

'John P. Kirchner, Capt.' (Died November 1, 1960)

 'Kenneth S. Cliff, Sgt.' (S. Kenneth Cliff, a Police Sergeant of the City of Lancaster, Pa.)*

 'W. H. Hoover, Alderman' (Henry M. Hoover, an Alderman in the City of Lancaster, Pa.)*

 'Wm. C. Storb, D.A.' (William C. Storb, the then District Attorney of the County of Lancaster, Pa.)*

 'Joseph B. Wissler, P. Judge' (Joseph B. Wissler, President Judge of the Court of Common Pleas of the County of Lancaster, Pa.)*

 After the filing of the above paper, the named defendants filed a motion to dismiss. The case then appeared on may argument list, but plaintiff did not appear. Thereafter, an order was entered directing the Warden to produce Hardy at a stated time when the argument and hearing was held on February 5, 1964 with Hardy present, and with counsel for the defendants present.

 Plaintiff alleges that these defendants acted in a criminal conspiracy depriving him of due process of law and of his constitutional rights that resulted in his present illegal confinement.

 In particular, the plaintiff states that on January 10, 1955, Kenneth Cliff, acting under the direct order of John P. Kirchner, proceeded to Roanoke, Virginia, for the purpose of extraditing plaintiff to Pennsylvania. Plaintiff was taken to Pennsylvania and placed in the Lancaster County Jail. On January 28, 1955 plaintiff was brought before Alderman Henry M. Hoover for a hearing. After the hearing plaintiff alleges that the alderman committed criminal misconduct when he sent an illegal transcript of the hearing to the Clerk of the Court stating that plaintiff should be charged with prostitution and statutory rape. Plaintiff was then tried before Judge Wissler and sentenced to from 2 1/2 years to 5 years for prostitution, and to from 5 years to 10 years for statutory rape. Plaintiff alleges that throughout the entire proceeding he was denied the right of counsel and was not permitted to face his accuser.

 A careful reading of plaintiff's allegation shows that the petition is ineptly drawn but it appears that plaintiff complains basically of deprivation of his civil rights although no mention is made of them in the petition, and no applicable federal statutes are asserted. Plaintiff has filed, in addition, five habeas corpus petitions since July 17, 1961 with the last one being denied on June 12, 1964 by my Brother, Judge Kraft. Accordingly, this Court will consider this complaint as one within the purview of the Civil Rights Act, 42 U.S.C. § 1981 to § 1994. A similar petition or complaint was dismissed on January 10, 1964 by Judge W. G. Johnstone, Jr. in the Court of Common Pleas of Lancaster County, Pennsylvania, without President Judge Wissler taking any part in the argument or disposition of the case.

 From the language of the petition it is apparent that each of the defendants at the times complained of was acting in his official capacity and under the authority of his office. The well-founded principle as enunciated by my Chief Judge, Brother Clary, in Ellis v. Wissler, P.J. and District Attorney Alspach, (E.D.Pa.1964), 229 F.Supp. 196 is explicitly applicable here.

 See also Allen v. Biggs, 62 F.Supp. 229 (E.D.Pa.1945); Gregoire v. Biddle, 177 F.2d 579 (2 Cir. 1949); Perkins v. Rich, 204 F.Supp. 98 (D.Del.1962), aff'd 316 F.2d 236 (3 Cir. 1963); Smith v. Dougherty, 286 F.2d 777 (7 Cir. 1961), cert. den. 368 U.S. 903, 82 S. Ct. 180, 7 L. Ed. 2d 97; Ginsburg v. Stern, 125 F.Supp. 596 (W.D.Pa.1954), aff'd 225 F.2d 245 (3 Cir. 1955); Rhodes v. Houston, 202 F.Supp. 624 (D.C.Neb.1962), aff'd 309 F.2d 959 (8 Cir. 1962).

 Immunity to suit also applies to Alderman Hoover, for the same considerations giving rise to immunity on the part of judges of courts of record apply with equal force to members of the minor judiciary. Cuiksa v. City of Mansfield, 250 F.2d 700 (6 Cir. 1957). The general rule stated in Stift v. Lynch, 267 F.2d 237 (7 Cir. 1959) is that a justice of the peace is not liable for damages for any error or irregularity in the performance of his duties within the scope of his jurisdiction unless there is shown a breach of duty with an improper or corrupt ...

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