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August 17, 1965

EAST CROSSROADS CENTER, INC., a corporation, Plaintiff,
MELLON-STUART COMPANY, a corporation, and Seaboard Surety Company, a corporation, Defendants

The opinion of the court was delivered by: ROSENBERG

 This is now here on a Motion to Dismiss the complaint. It is filed by the defendants, Mellon-Stuart Company and Seaboard Surety Company. The complaint states that the plaintiff, East Crossroads Center, Inc., commenced an action in the Court of Common Pleas of Allegheny County, Pennsylvania, at No. 3041 October Term 1959, wherein it sought damages against Mellon-Stuart Company and its bonding company, Seaboard Surety Company, for an alleged breach of a contract for the construction of the East Hills Shopping Center. The Court of Common Pleas sustained the defendants' demurrers to the plaintiff's amended complaint and dismissed the plaintiff's suit. The action of the Court of Common Pleas was affirmed by the Pennsylvania Supreme Court at No. 152 March Term 1964 ( East Crossroads Center, Inc. v. Mellon-Stuart Company, 416 Pa. 229, 205 A.2d 865).

 The filing of the complaint here is in effect now an action to procure a redetermination by a federal court of State courts' decisions upon allegations that the Constitution of the United States was violated by such State courts' decisions. The plaintiff was permitted at the argument of this case to submit details, but chose to stand on the statements as made in the complaint.

 While it is not required that detailed information be made in a complaint in order to support an action against another party, since all that is required is that notice be given, nevertheless, the complaint should specify the nature of the claim in a factual summary. The function of the complaint is to afford fair notice to the adversary of the nature and basis of the claim asserted and a general indication of the type of litigation involved. Continental Collieries v. Shober, 130 F.2d 631, C.A. 3, 1942.

 The plaintiff, however, contends that his legal conclusions do support this cause of action and cites from the top of page 341 in Volume 28 U.S.C.A., under Rule 8 as follows:

"The real test of a new pleading under the new rules is not, * * * whether the allegations would be deemed good at common law. The test is whether information as given is sufficient to enable the party to plead and prepare for trial. A legal conclusion may serve the purpose of pleading as well as anything else if it gives the proper information." (45 W.Va.L.G. 5)

 The real purpose of Rule 8 is to provide for a pleading which sets forth a claim for relief and contains "(2) a short and plain statement of the claim showing that the pleader is entitled to relief." Sheridan-Wyoming Coal Co. v. Krug, 83 U.S.App.D.C. 162, 168 F.2d 557, 1948; Walter Reade's Theatres, Inc. v. Loew's Inc., 20 F.R.D. 579, D.C.N.Y., 1957; Philadelphia Dressed Beef Co. v. Wilson & Co., 19 F.R.D. 198, D.C.Pa. 1956; McKenzie v. Blidberg Rothchild Co., 12 F.R.D. 392, D.C.N.Y., 1952.

 Under this Rule the reasonable use of conclusions is not improper if the entire complaint, including such conclusions is sufficient to state a claim upon which the pleader is entitled to relief, and at the same time put the defendant on notice of the precise nature of the claim. Mails v. Kansas City Public Service Co., 51 F. Supp. 562 (D.C.Mo., 1943); Stewart-Warner Corporation v. Staley, 42 F. Supp. 140 (D.C.Pa., 1941); Cox v. Kroger Co., 9 F.R.D. 78 (D.C.Ill., 1949). So that it does not matter if a pleading sets forth conclusions, if such a complaint is sufficiently definite as to give, on the whole, fair notice to the opposite party of the precise nature of the claim. Mails v. Kansas City Public Service Company, supra; Macleod v. Cohen-Erichs Corporation, 28 F. Supp. 103, 40 Am.Bankr.Rep.N.S. 507 (D.C.N.Y., 1939); Cox v. Kroger Co., supra. Neither are conclusions of law contained in a complaint objectionable. These may be treated as surplusage if the pleadings set forth sufficient information upon which a claim may be used. Anderson v. Seeman, 252 F.2d 321, C.A.5, 1958; cert. den. 358 U.S. 820, 79 S. Ct. 32, 3 L. Ed. 2d 61; Edwards v. E. I. Du Pont De Nemours & Co., 183 F.2d 165, C.A.5, 1950; Mails v. Kansas City Public Service Co., supra. In other words, legal conclusions in a pleading must be supported by averments of fact. Patten v. Dennis, 134 F.2d 137, C.A. 9, 1943; Zimmerman v. National Dairy Products Corp., 30 F. Supp. 438 (D.C.N.Y., 1939); Petrikin v. Chicago, R.I. & P.R. Co., 14 F.R.D. 31 (D.C.Mo., 1953); Simmons Co. v. Cantor, 3 F.R.D. 281 (D.C.Pa., 1944).

 The plaintiff avers that because of the breach of contract by the defendant, Mellon-Stuart Company, the plaintiff was damaged; and that the Common Pleas Court's "poor guessing and departure from the usual and accepted practice, resulted in a denial of the plaintiff's right to a trial by jury for a proper finding of the facts, to a Day in Court and to a deprivation of plaintiff's right to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States." (par. 39) Furthermore, the plaintiff charges that the per curiam affirmance of the Pennsylvania Supreme Court failed to adjudicate a single issue before it. Accordingly, the plaintiff charges it was deprived of due process of law.

 The complaint does not make any averments as to what constituted the "poor guessing" of the Common Pleas Court or in what way that Court departed from the usual and accepted practice. If the sustaining of preliminary objections as practiced under Pennsylvania law and procedure, and preventing the case from going to a jury is the basis for the plaintiff's complaint to the State Court's decisions, it must attack the validity of that procedure itself. And if the determination of the Common Pleas Judge as to construction of the meaning of the terms of the contract is the gist of the expression "poor guessing", it relates to legal error in the determination of the case. Mere error of state law will not be declared to be a denial of due process. Gryger v. Burke, 1948, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683, rehearing denied 335 U.S. 837, 69 S. Ct. 13, 93 L. Ed. 389. See, also, Rupp v. Teets, 235 F.2d 674, C.A. 9, 1956, cert. den. 352 U.S. 900, 77 S. Ct. 139, 1 L. Ed. 2d 92. The Constitution does not guarantee that the decision of state courts shall be free from error, or require that pronouncements shall be consistent. Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S. Ct. 185, 82 L. Ed. 268, 1937; Tracy v. Ginzburg, 205 U.S. 170, 27 S. Ct. 461, 51 L. Ed. 755, 1907; Central Land Co. of West Virginia v. Laidley, 159 U.S. 103, 16 S. Ct. 80, 40 L. Ed. 91, 1895. When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of the state court does not deprive the unsuccessful party of his property without due process of law. Filer v. Steele, 228 F. 242, affirmed 241 U.S. 648, 36 S. Ct. 550, 60 L. Ed. 1220, 1916; Bonner v. Gorman, 213 U.S. 86, 29 S. Ct. 483, 53 L. Ed. 709; Delmar Jockey Club v. State of Missouri, 210 U.S. 324, 28 S. Ct. 732, 52 L. Ed. 1080 (1908); Central Land Co. v. Laidley, supra. Under these circumstances, the plaintiff has stated mere conclusions in its complaint that it was deprived of its constitutional rights in the State courts and this alone does not set forth sufficient notice to support a claim. Swank v. Patterson, 139 F.2d 145, C.A. 9, 1944.

 In any event, if the state procedure involves constitutional rights after the appellate court of a state has made its determination, resort is not to a United States district court. This then raises the question of jurisdiction. Peterson v. Demmer, 34 F. Supp. 697 (D.C.Tex., 1940); Binderup v. Pathe Exchange, 263 U.S. 291, 44 S. Ct. 96, 68 L. Ed. 308 (1923).

 This entry of an original suit here amounts to a retrial appeal from the Supreme Court of Pennsylvania. Appeals do not lie from a state court to a United States district court. Williams v. Tooke, 108 F.2d 758, C.A. 5, 1940; Hendron v. Yount-Lee Oil Co., 108 F.2d 759, C.A. 5, 1940; Manufacturers Record Publishing Company v. Lauer, 169 F. Supp. 234 (D.C.La., 1959). In its prayer for a declaratory judgment the plaintiff in effect desires that the Federal District Court nullify the State Courts' findings. But a federal district court cannot nullify a state court's judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923); Manufacturers Record Publishing Company v. Lauer, supra.

 If the plaintiff is to have any remedy from a federal court, it would appear that the proper procedure would be by application to the United States Supreme Court for the issuance of a writ of certiorari to the Supreme Court of Pennsylvania. But the plaintiff argues that this is not a proper procedure and cites as authority Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Here the Supreme Court granted habeas corpus relief to the petitioner and made its rulings as to the exhaustion of state remedies by a petitioner for habeas corpus relief before applying to a federal court. The Court overruled the holding in Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761 (1950) that state prisoners must ordinarily seek certiorari to the ...

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