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February 3, 1966

Joseph GAITO, Plaintiff,
Samuel STRAUSS, Edward E. Fagan, Ralph B. Miller, Gregory Scorzafave, Jr., Edward C. Boyle, William Clany Smith, Dennis Timpona, Mike Levine, Robert W. Duggan, Edwin J. Martin, et al., Defendants

The opinion of the court was delivered by: MARSH

 Plaintiff, a citizen of Pennsylvania incarcerated in the Eastern State Correctional Institution at Philadelphia, has filed a 46-page typewritten "Complaint in Equity" against the ten above-named citizens of Pennsylvania, claiming $500,000 damages under 42 U.S.C. §§ 1983 and 1985(2, 3) *fn1" for alleged deprivation of his constitutional rights, privileges and immunities and praying for "relief from the illegally contrived judgment of 27 years imprisonment framed through the illegal conduct by the respective defendants, and others." Jurisdiction of his federal claims is correctly asserted under 28 U.S.C. §§ 1331 and 1343(3); pendent jurisdiction of allegedly related non-federal claims is asserted under the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586 77 L. Ed. 1148 (1933).

 Defendant Boyle served as the District Attorney of Allegheny County in this district from January, 1956 through January 3, 1964. Defendant Duggan has held that office since January 4, 1964. Defendant Strauss was Boyle's First Assistant District Attorney. Defendant Smith served as an assistant district attorney under Boyle and briefly thereafter under Duggan. Defendant Fagan has been an assistant district attorney of Allegheny County since some time prior to November, 1959. Defendant Martin is an assistant district attorney under Duggan. Defendant Miller has at all times pertinent been police chief in the Borough of Dormont, Allegheny County, and defendant Scorzafave a Dormont police officer. Defendant Timpona was an Allegheny County detective in 1959. Defendant Levine has been a special events radio news reporter since some time prior to February 28, 1959.

 The complaint alleges that on February 28, 1959 and thereafter, the defendants and others conspired together for the purpose of impeding, hindering, obstructing and defeating the due course of justice in the Commonwealth of Pennsylvania, with the willful intent of depriving plaintiff of the equal protection of the laws and for the purpose of depriving him of his right to the due process of law; that the complained of acts (specified hereafter) were in accordance with said conspiracy and were willful, malicious and designed to discriminate against him, and to deprive him of his rights, privileges, and immunities under the Constitution of the United States. *fn2"

 Specifically, plaintiff alleges that on Saturday afternoon, February 28, 1959, he was illegally arrested and searched by Allegheny County detectives who were acting upon orders from the defendant Strauss and Ted Botula, the acting Chief of Detectives. *fn3" He alleges that he was involuntarily removed to the County Detective Bureau in Pittsburgh where he was forced to strip and to permit chemical tests to be made upon his clothing and his hands, and required to don substitute clothing. He was then driven out to the suburban Dormont police station and interrogated concerning the possible involvement of his younger brother, Frank Gaito, in the shooting of Scorzafave, a Dormont police officer, during the perpetration of a burglary at the latter's home. *fn4" Although refused "counsel", "denied his right to remain silent", and "assaulted" by Botula, *fn5" he alleges that he steadfastly remained uncommunicative except insofar as he was induced "by promise" to give a signed written statement which purported to alibi both his brother and himself. Sometime during that Saturday evening, the complaint continues, plaintiff was spirited away to the Upper St. Clair Township police station and detained there incommunicado over the weekend. Monday morning, he was returned to the County Detective Bureau and interrogated into the afternoon by defendant Strauss, who, along with Police Chief Miller, is characterized as a "controlling authority and director" of the conspiracy. This interrogation was unsuccessful, concedes plaintiff, despite Strauss' threats that he would mobilize all the forces under his control to personally prosecute and convict both plaintiff and Frank Gaito in the event that plaintiff's uncooperative attitude persisted. Sometime Monday afternoon, having been deliberately attired by the defendants in clothing of the type which Scorzafave had already identified one of his assailants as wearing, *fn6" plaintiff was taken to the St. Clair Hospital and into the hospital room where the critically wounded Scorzafave lay. There he was forced through the motions of a contrived identification designed to falsely implicate him in the burglary and the shooting of Scorzafave, in violation of his federal constitutional rights. Levine, present for the purpose of tape-recording the confrontation, witnessed the fact that Scorzafave made no "oral identification" of plaintiff; *fn7" but, alleges the plaintiff, Levine joined the conspiracy of officers acting under color of state law and subsequently, at the trial, "by an affirmative nod of his head" in view of the trial jury "deliberately affirmed a false fact." *fn8" On the evening of Tuesday, March 3, 1959, defendant Miller formally charged plaintiff with commission of the crimes of burglary, assault with intent to kill, and violation of the Uniform Firearms Act. As of that time, plaintiff alleges, he had been detained incommunicado some 76 hours, denied assistance of counsel, induced "by promise" to give a written alibi statement later used against him at the trial, forced to participate in a sham identification one-man "lineup" while wearing clothing owned by the defendants and designed to ensure that identification, deprived of his right to remain silent, and assaulted by Botula - all in the aftermath of an illegal arrest and search of his person, and an illegal search and seizure of "his property and a 1958 Chevrolet Station Wagon". *fn9" During the illegal detention, alleges plaintiff, a magistrate had sat daily in the building housing the Dormont police station.

 Meanwhile, plaintiff avers, defendants Strauss and Timpona had extracted from the critically wounded Frank Gaito, while the latter lay semi-conscious and heavily drugged following surgery, non-volitional admissions of his own complicity in the burglary and shooting, as well as the involvement of a co-felon whom he refused to identify.

 Defendant Fagan prosecuted the case for the Commonwealth. Mrs. Marjorie Matson, an experienced defense counsel, represented the Gaitos. Plaintiff alleges that Fagan was a knowing participant in the conspiracy and deliberately suppressed evidence, employed false and perjured evidence, and peppered the trial with highly prejudicial remarks. Fagan is even alleged to have practiced sleight of hand with police photographs so as to mislead the jury into crediting Scorzafave's false identification of plaintiff as one of the burglar-assailants. The written "alibi" statement taken from plaintiff on February 28, 1959, allegedly under circumstances violative of the principles of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), was used as evidence at the trial to show that he and his brother were together on the evening of February 27, 1959, at the time of the burglary-shooting. *fn10" It is alleged that Scorzafave perjured himself at the trial (at the instigation of defendants Miller, Strauss and Fagan) by falsely identifying the Gaitos as his assailants; that Strauss and Timpona perjured themselves by testifying falsely both as to the contents and the volitional nature of the hospital bed admissions made by Frank Gaito - and that such admissions, while specifically reserving the identity of Frank's co-felon, were somehow used to implicate plaintiff as such co-felon. Plaintiff further alleged that defendant Levine nodded his head in affirmation of "a false fact" within the sight of the jury; *fn11" that several County Crime Laboratory technicians knowingly gave perjured testimony concerning ballistics and the results of primer residue tests applied to the Gaitos' hands on February 28, 1959 - at the direction of Strauss, Miller and Fagan; that several county detectives and police officers gave unspecified perjured evidence. Plaintiff is reasonably specific in designating the alleged perjured testimony given and/or sanctioned by certain defendants, but falters badly in specifying the evidence allegedly suppressed by them. He employs the terms "perjured" and "suppressed" interchangeably. For completeness sake, he insinuates the complicity of Mrs. Matson in the conspiracy and asserts (par. 48) that she "in effect, aided and abetted the corporate [?] defendants." *fn12" It is also asserted that Fagan, at the time of sentencing (July 12, 1960), while plaintiff and his brother were unrepresented by counsel, made false representations to the sentencing judge concerning past crimes *fn13" in a successful endeavor to obtain imposition of the maximum sentences prescribed by law.

 Toward the end of the complaint, plaintiff asserts sundry claims of denials of due process of law against his trial judge and certain other state judges associated with his unsuccessful direct appeal and various habeas corpus and mandamus petitions, unnamed penal authorities who have allegedly interfered with his access to the courts and against the defendants, Boyle, Duggan, Smith and Martin, for conspiratorially resisting and frustrating his post-conviction attempts at a new trial by filing late briefs and setting forth in such briefs deliberate distortions of the applicable facts and law, by procedural harassment and by conspiring with the unnamed penal authorities to interfere with plaintiff's access to the courts. He alleges that he was without counsel at the time of his sentencing and that the State Superior Court denied him due process by failing to appoint counsel for him in the prosecution of his direct appeal; that he did not waive assistance of counsel at either time.

 Plaintiff avers his innocence of the crimes in question; that the defendants knew of his innocence, but falsely managed and procured his conviction in reprisal for his refusal to cooperate in their investigation of Frank Gaito. *fn14"

 Aside from his loss of liberty, plaintiff claims that the illegal conspiracy of the defendants, as effectuated, has caused great humiliation and embarrassment to himself and his family, and great damage to his business and reputation, as well as a considerable outlay for counsel fees.

 In para. 69 of the Complaint, plaintiff concedes that he sought to file a similar suit in forma pauperis in this court at Misc. No. 3323, 1963. Another member of this court permitted the filing of the "papers", but dismissed the complaint, stating it to be apparent that "there is no merit whatsoever in the proposed law suit" and "the complaint does not present any substantial question worthy of consideration." The named defendants in that complaint were Strauss, Fagan, Miller, Boyle, and the criminal court trial judge, Hon. Edwin M. Clark of Indiana County. The plaintiff's complaint and application to proceed in forma pauperis, together with the memorandum and order dismissing the complaint, were filed on October 11, 1963. On December 3, 1963, the Court of Appeals denied plaintiff's petition for leave to prosecute his appeal in forma pauperis. *fn15" Certiorari was denied on May 4, 1964. 377 U.S. 925, 84 S. Ct. 1223, 12 L. Ed. 2d 216.

 All defendants have moved to dismiss. Each, excepting Levine, contends that this court lacks jurisdiction of the subject matter; alternatively, in the event that jurisdiction exists, that this court should exercise abstention. Each defendant contends that the complaint fails to state any claim against him upon which relief can be granted. Defendants Strauss, Miller, Scorzafave, Levine and Timpona contend that this action is barred by certain statutes of limitation, to-wit, 12 Purdon's Pa.Stat.Ann. §§ 34 and 51. Defendants Strauss and Timpona contend that the judgments in the criminal proceedings at No. 15 O. & T. April Term, 1959, and Nos. 46 and 47 Q.S. April Term, 1959, are conclusive here as to the issues litigated and adjudicated therein. Defendants Duggan, Boyle, Fagan, Smith and Martin contend that the determination at Misc. No. 3323 in this court should be followed here under the principle of stare decisis, while defendant Strauss contends that such determination is res judicata as to this action. Defendants Miller, Scorzafave and Timpona appear to contend that such prior determination in this court should be given effect here under both the doctrine of stare decisis and the doctrine of res judicata.

 Motions to strike the complaint have been filed by all defendants except Levine. Plaintiff, in turn, has moved to strike ...

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