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August 19, 1971

PEOPLES CAB CO., a corporation qualified as a public utility under the laws of the Commonwelath of Pennsylvania, et al.
George I. BLOOM

The opinion of the court was delivered by: MARSH


Plaintiffs, a Pennsylvania corporation having its principal place of business in the City of Pittsburgh, and two individuals, residents of that city, who are the sole owners of the stock of the corporation and the managing directors and officers thereof, have brought suit for damages, compensatory and punitive, against the defendant under the Civil Rights Act, 42 U.S.C. § 1983, *fn1" 28 U.S.C. § 1343, *fn2" "the Constitution of the United States, Art. 1 par. [sic] 10, cl. 1, *fn3" Art. 4, par. [sic] 2, clause 1, *fn4" and 14th Amendment, par. [sic] 1." *fn5" (Footnotes added.) The corporation is the holder of a public utility certificate for the operation of a taxicab business in Pittsburgh. The defendant is the duly appointed and acting Chairman and member of the Public Utility Commission of Pennsylvania, and a resident of Washington County Pennsylvania. *fn6"

 The Amended Complaint is couched in broad and conclusory language. Scarcely any facts are set forth to support the conclusions. A civil rights complaint should set forth with specificity the acts and conduct of the defendant which worked an infringement of civil rights which will permit an informed ruling whether the wrong complained of is of federal cognizance. *fn7" We think the Amended Complaint lacks the factual specificity required to support a cause of action under the Civil Rights Act.

 Stripped of some of the conclusory language, it appears that the Amended Complaint charges that the defendant, as Chairman of the Pennsylvania Public Utility Commission (PUC) conspired with an officer of Yellow Cab Company and representatives of its parent company, Checker Motors, to reestablish Yellow Cab as a taxicab monopoly within the City of Pittsburgh and destroy the plaintiffs' taxicab business. As part of this conspiracy, it is alleged that the defendant "permitted several hundred" unlicensed persons to unlawfully and unfairly compete with the plaintiffs, but not with Yellow Cab; that the defendant "did coerce and 'persuade' plaintiffs" not to contest a proposed rate increase for Yellow Cab, by implying "that he was in effect 'keeping an eye' on plaintiffs leasing plan, which plan could be terminated by defendant if plaintiffs did not accede to his coercion" (plaintiffs' brief, p. 2); *fn8" that plaintiffs' "'leasing' plan was mere implementation" of the previous driver incentive plan which the PUC had ordered discontinued, but which order was reversed: People Cab Co. v. Pennsylvania Public Utility Comm., 185 Pa.Super. 628, 137 A.2d 873 (1958); that plaintiffs under the "'leasing' plan" entered into contracts for purchase of many taxicabs which were leased to drivers from which plaintiffs anticipated profits; and that defendant did "make threats to revoke the certificate of their corporate plaintiff", *fn9" and did publicly malign plaintiffs in the press, and did impugn the insurable status of their equipment, and did otherwise abuse plaintiffs so as to impair the obligation of their several contracts, destroy the value of their properties, cause them loss of income and revenue, and destroy "their good names" to their great loss and damage. *fn10"

 The defendant moved to dismiss on the grounds (1) that the court lacked jurisdiction of the subject matter of the Amended Complaint, and (2) that the Amended Complaint fails to state a claim upon which relief can be granted. Six reasons are specified. We think the motion should be granted on both grounds.

 The terms of § 1983 make it eminently plain that two elements are requisite for recovery. First, the conduct complained of must be done by some person acting under color of law. Second, such conduct must have subjected the plaintiffs to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States. *fn11"

 Viewed in the light most favorable to plaintiffs, the allegations of the Amended Complaint fail to establish either that the conduct of defendant was exercised under color of law, or that his conduct subjected plaintiffs to deprivation of rights secured by the Constitution and laws of the United States.

 Color of Law

 At the threshold it must be emphasized that nowhere in their Amended Complaint have plaintiffs alleged that the defendant as Chairman of the Public Utility Commission, "by the scheming, conspiratorial actions" (plaintiffs' brief, p. 2), was acting under color of law, which is an indispensable element of the Civil Rights Act, 42 U.S.C. § 1983. Nowhere in the Amended Complaint is a State "statute, ordinance, regulation, custom, or usage" specifically identified by which the defendant subjected plaintiffs to the deprivation of any rights, privileges or immunities secured by the Constitution and laws of the United States. This omission in itself is sufficient to sustain the motion.

 In order that defendant's actions be "under color of" state law, there must be a "misuse of power, possessed by virtue of state law * * *." United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941). It is well settled that a law enforcement officer, who misuses the power possessed by virtue of state law and made possible only because he, the wrongdoer, is clothed with the "badge" and authority of state law is liable in damages to a citizen who is deprived of guaranteed constitutional rights, usually the denial of citizen rights by official misapplication or perversion of laws establishing procedural safeguards in the nature of due process. Frequent examples are policemen and jailors who under color of state or local law violate a person's constitutional rights and commit constitutional torts. *fn12"

 Although the defendant is alleged to have abused the powers of his office as Chairman of the PUC to accomplish the object of the conspiracy, it is not shown that he exercised any State power; nor was it shown that he abused any State power,-he did not use State power to achieve the object of the conspiracy. It was not alleged that the defendant as Chairman or member of the PUC was engaged in any inquiry, investigation, or hearing involving the plaintiffs, nor that he exceeded any State given authority in furtherance of the conspiracy. Before plaintiffs can maintain a federal action against the defendant, as Chairman, their Complaint must show that his conduct embraced functions he was authorized to perform by the Commonwealth of Pennsylvania. Cf. Simmons v. Whitaker, 252 F.2d 224 (5th Cir. 1958).

 Plaintiffs seem to rely entirely for recovery under the Civil Rights Act on the allegations that the defendant as Chairman of the PUC conspired to destroy their business and reestablish Yellow Cab as monopoly in Pittsburgh. They seem to emphasize that this object was accomplished by defendant solely by misusing the title and influence of his state created office by the aforesaid means which were performed "clearly outside the authority or jurisdiction of the office" (plaintiffs' brief, p. 12); "the acts complained of were not done during exercise of any judicial function" (plaintiffs' brief, p. 11); and "None of the acts charged against the defendant were done in course of official hearing or determination of the Commission or its Chairman." (Plaintiffs' brief, p. 13; emphasis in original.) We might add that nothing allegedly done by defendant as Chairman in furtherance of the conspiracy was authorized by the State.

 Thus, it is clear, as alleged in the Amended Complaint, that defendant pursuant to the conspiracy caused damage to the plaintiffs' property "under color of his high office", but not under authority or color of any identifiable state statute, ordinance, regulation, custom or usage. No state action is shown to ...

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