The opinion of the court was delivered by: SNYDER
The Plaintiff, Joseph Carl Brown, Jr., brought this action against Ira Wilson for his alleged failure to present a letter written on his behalf before the Board of Pardons. Plaintiff claims his action arises under 42 U.S.C. § 1983 (the Civil Rights Act) and bases jurisdiction on 28 U.S.C. § 1343. The Defendant Wilson is a Counselor at the State Correctional Institution at Pittsburgh. The purpose of the Counselors at the State Correctional Institution at Pittsburgh is to (1) aid the prisoners to adjust to living in the prison population, (2) find what the particular aptitudes and abilities are of specific prisoners, and (3) to use their findings to help the prisoners to eventual rehabilitation through release by either pardon, parole or any other available program. The Plaintiff had applied for a commutation of his sentence; the Pennsylvania Board of Pardons was to meet on July 29, 1972 for the purpose of reviewing such applications. Since Plaintiff Brown did not have sufficient funds to obtain an attorney to represent him, Mr. Wilson would present his (Brown's) case for commutation before the Board of Pardons.
Sometime in June of 1972, the Plaintiff and the Defendant met and discussed Brown's application for commutation. In the best interest of the prisoner, he was advised he should procure as many letters of recommendation as possible to present before the Board. Plaintiff here was able to procure only one letter (other than letters from his immediate family) and that letter was from a former school teacher, Mrs. Bette Cavanah. The letter of Mrs. Cavanah was received at least a few days prior to the meeting of the Board of Pardons on June 29, 1972. In his Affidavit supporting the initial Motion for Summary Judgment, the Defendant stated:
"2. I have been employed at the State Correctional Institution at Pittsburgh as a Counselor since 1965. In January of 1972, I was appointed Representative for the Western District to the Board of Pardons. I have recently been named Resident Placement Co-Ordinator at the Institution.
In an "Opposing Memorandum of Fact and Law" filed December 14, 1972, the Plaintiff pro se alleged:
"The term 'SHORTLY BEFORE ' is grossly misleading. It appears that the defendant would have the Court believe that the letter was received as he was going out of the prison front gate en route to the City County Building on the Morning [Sic] of June 29, 1972, where the hearing was conducted. However, it just so happens that the letter of Mrs. Bette Cavanah was postmarked June (20) (twentieth), 1972; and there[fore] most certainly arrived at the institution within a maximum of three (3) days."
A Preliminary Hearing scheduled for August 7, 1973, was postponed by the request of Plaintiff and held on August 16, 1973. At that time the Plaintiff brought a Motion to Disqualify the Trial Judge. This Motion was subsequently denied and another hearing was scheduled on December 20, 1973.
In the interim, the Defendant filed an Affidavit of William B. Robinson, which stated the following:
"I, William B. Robinson, Senior Member of the Pennsylvania Board of Pardons, do swear that the following facts are true and correct to the best of my knowledge, information and belief.
On June 29, 1972, the case of Joseph Carl Brown, Jr., applicant for commutation of minimum sentence, was heard in the Supreme Court Room, in the City-County Building, County of Allegheny, Pittsburgh, Pennsylvania.
The case was presented by Ira Wilson, Jr. Mr. Wilson's plead for the above named applicant was very thorough and complete. At the conclusion of his oral presentation, Mr. Wilson submitted to the Board a letter dated June 20, 1972, from one Mrs. W. D. Cabanah. This letter was incorporated in the file of Joseph Carl Brown, Jr.
At the conclusion of the day's hearings the Board met in an executive session on July 21, 1972, in the Office of the Attorney General, in the State of Pennsylvania. At that time, the case of Joseph Carl Brown, Jr., was reviewed (note: The letter of Mrs. Cabanah was incorporated in the file and was considered to be part of the final disposition of the Board). It was the decision of the Board at this time to refuse commutation of minimum sentence based on numerous other factors."
At the Hearing on Defendant's Motion for Summary Judgment held on December 20, 1973, the Court pointed out a conflict between the two affidavits as presented. The Affidavit of Mr. Wilson stated that he did not have time to incorporate the letter prior to the hearing of the Board of Pardons on June 29, 1972, while the Affidavit of Mr. Robinson stated that at the conclusion of his oral presentation of June 29, 1972, on behalf of Mr. Brown, Mr. Wilson incorporated into the file the letter of Mrs. Cavanah. The Court, at the request of Brown, granted ...