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September 10, 1971

Robert A. MILLER et al. C.M. CLARK INSURANCE AGENCY, INC. v. Robert A. MILLER et al.

John W. Lord, Jr., Chief Judge.

The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, Jr., Chief Judge.

 While the state action was pending, Safeguard applied to the three-judge panel to dissolve the stay order. The Dauphin County Court then rendered a decision in favor of the plaintiffs on the factual issues. Safeguard, however, alleging continuing misconduct on the part of the Insurance Department, moved a fifth and sixth time to dissolve the stay. The panel denied these motions and subsequently dismissed the actions as moot. (See Order dated August 3, 1971).

 Prior to the dismissal, Safeguard filed another suit, Civil Action No. 70-1969, in which they again sought the impaneling of a three-judge court, alleging continuing malicious and arbitrary acts on the part of the Insurance Department, and asked the court to declare the Insurance laws of Pennsylvania unconstitutional.

 In an opinion and order dated July 15, 1971, we denied plaintiff's request for a three-judge court, but held that the action should proceed as a regular one before a single district court judge.

 Independent of all of the above-mentioned cases, plaintiffs filed the present suits, alleging in their complaint that the defendants "entered into a conspiracy * * * at some time prior to April 12, 1967 which has as one of its purposes the deprivation of one or more of the plaintiff's constitutionally protected rights. * * *", in violation of the Civil Rights Act. 42 U.S.C.A. § 1981 et seq. Plaintiff Safeguard alleges that the act of suspending it in April of 1967 and the subsequent petition for liquidation, inter alia, were done in furtherance of this conspiracy, as were the acts, inter alia, of seizing all of C.M. Clark's books, records and property, as well as harassing the office by stationing examiners on the premises for three to four months.

 Presently before the Court is a motion to dismiss on behalf of all of the defendants in each suit. Inasmuch as they raise common issues of law, the Court will decide the motions in both suits at this time.

 Defendants' motions to dismiss are made pursuant to Rule 12(b)(6), Fed. R. Civ. P., failure to state a claim upon which relief can be granted, and 12(b)(3), Fed. R. Civ. P., improper venue.

 In support of their motions to dismiss under 12(b)(6), defendants assert that as attorneys, officials and employees of the Insurance Department of Pennsylvania, involved in judgmental and evaluative decision making, they are cloaked with governmental and/or quasi-judicial immunity.

 While the sweeping language of § 1983 makes "every person" potentially liable for violations of the Act, it has been determined that Congress, in enacting the law, did not intend to abolish all common law immunities. It is clear that traditional common law immunities such as the legislative and judicial protections survived the statute, and are viable defenses in an action brought under the Civil Rights Act. Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951); Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966), cert. denied 386 U.S. 1021, 87 S. Ct. 1367, 18 L. Ed. 2d 457 (1967); Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959). The availability of the doctrine of governmental immunity has not been the subject of as much judgmental decision making as have the judicial and legislative immunities. However, it would appear clear that public officials are not entitled to the absolute immunity which has been given legislators and judges, or those acting in a quasi-judicial position. To so hold would "practically constitute a judicial repeal of the Civil Rights Act." Hoffman v. Halden, supra at 300. There is not a determinative Supreme Court decision, and the courts which have addressed themselves to the issue of governmental immunity as a defense to an action under the Civil Rights Act have not agreed on the standard to be applied in cases where there is no absolute immunity.

 Cooper v. O'Connor, 69 App. D.C. 100, 99 F.2d 135, cert. denied 305 U.S. 642, 643, 59 S. Ct. 146, 83 L. Ed. 414, rehearing denied 305 U.S. 673, 59 S. Ct. 242, 83 L. Ed. 436 (1938), was an action brought against federal officers for allegedly procuring the indictment of plaintiff falsely and without probable cause. Plaintiff was acquitted and sued. The court concluded that since the acts of the defendants "were performed in the discharge of their official duties, the motives with which those duties were performed are immaterial * * *." Id. at 142.

 This was extended to Civil Rights cases in Hoffman v. Halden, supra, which also found a public official cloaked with immunity for discretionary acts performed in the scope of his authority.

 In Erlich v. Glasner, 274 F. Supp. 11 (C.D. Cal. 1967), the court took the position that "to hold that the [public official involved] or anyone in a similar position is required to establish his good faith in a court after his activity was within his discretionary duties would lead to endless ...

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