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Smith v. Rosenbaum

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: June 8, 1972.

HARVEY SMITH, APPELLANT,
v.
WALTER ROSENBAUM ET AL., APPELLEES

Max Rosenn and James Rosen, Circuit Judges, and-VanArtsdalen, District Judge.

Author: Per Curiam

Opinion OF THE COURT

Appellant, Harvey Smith, filed a complaint in the District Court for the Eastern District of Pennsylvania, alleging, inter alia, that appellees had acted under color of state law to deprive him of rights secured under the United States Constitution and laws of the United States by issuing a bail piece*fn1 against him, revoking his bail, and retaining his fully paid bond premiums, all without notice to Smith. He also alleged that the bail bond agreements with the bondsmen, Rosenbaum and Marks, were illegal, entitling him to the return of his bail bond premiums. Appellee, Sidney Grobman, was at the time of this suit, a Clerk of the Court of Common Pleas, Criminal Section and employed by the Commonwealth of Pennsylvania as Clerk of the Quarter Sessions Court of the County of Philadelphia. Jurisdiction was claimed pursuant to 28 U.S.C. §§ 1343, 1443, 42 U.S.C. §§ 1983, 1985.

The case was tried before the district court judge without a jury and a judgment was entered in favor of appellees, Rosenbaum, Marks and Grobman. On January 14, 1971, Smith's post-trial motion for "Additional Findings of Fact" was denied. The judge's findings of fact and conclusions of law are reported in Smith v. Rosenbaum, 333 F. Supp. 35 (E.D.Pa.1971).

The evidence established that Smith was arrested four times in the period from August 9, 1966 to December 6, 1966. Rosenbaum and Marks posted bail bonds on his behalf after receiving premiums on three occasions. Smith was arrested on December 6, 1966 for the fourth time. Smith could not make bail and therefore was incarcerated. On December 7, 1966,*fn2 Rosenbaum and Marks lodged a bail piece with Grobman upon payment of the statutory fee*fn3 because they believed their risk had substantially increased and Smith had failed to report his change of address.

As a court clerk, Grobman performed a ministerial act mandated by statute; he has judicial immunity and cannot be sued under the provisions of the Civil Rights Act, 42 U.S.C. § 1981 et seq., Marcedes v. Barrett, 3 Cir., 453 F.2d 391 (1971), Robinson v. McCorkle, et al., 3 Cir., 462 F.2d 111 (Argued March 14, 1972), and cases cited therein.

We have carefully examined the record before us and agree with the trial judge that Smith was not deprived of any federally protected rights; nor has there been a breach of the bail bond agreements requiring the return of the premiums.*fn4

The July 1, 1971 judgment of the District Court in favor of appellees Rosenbaum, Marks and Grobman and against appellant Harvey Smith will be affirmed.


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