The opinion of the court was delivered by: MUIR
Ervin Hohensee and his sisters, Thelma Tompkins and Alma Arzoo, filed this pro se complaint seeking damages, injunctions and declaratory relief against the named Defendants who have allegedly deprived Plaintiffs of various property and other constitutional rights. The complaint originally asserted jurisdiction under the Civil Rights Act, 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Subsequently, Plaintiffs were permitted to amend the complaint to assert diversity of citizenship as an alternative jurisdictional ground. By Opinion and Order dated April 5, 1974, the Court found that diversity of citizenship did not exist between Ervin Hohensee and the Defendants. No finding was made as to diversity between Plaintiffs Tompkins and Arzoo and the Defendants. Also by Order dated April 5, 1974, as modified by order # 1 dated April 10, 1974, the Court granted to Defendants summary judgment as to all but two issues raised in the complaint. This Opinion is in support of the Order granting partial summary judgment.
The facts and issues involved in this action are complex and have for nearly a decade been the subject of extensive litigation in the state and federal courts. A background of the facts and previous litigation is necessary for an understanding of the issues here presented. The following factual summary has been compiled from the complaint, the uncontested portions of affidavits, and from opinions and orders of the following courts:
The Court of Common Pleas of Lackawanna County, Pennsylvania
The Pennsylvania Supreme Court
The U.S. District Court for the Middle District of Pennsylvania
The U.S. District Court for the Eastern District of Virginia
Adolph Hohensee, the deceased brother of the three Plaintiffs and husband of Defendant Freida Grier, was at one time president and majority shareholder of Defendant Scientific Living, Inc. (Scientific). Among the assets of Scientific is or was a valuable tract of land of approximately 1,000 acres in Jermyn, Pennsylvania, referred to in the pleadings as Hohensee Park. The ownership of Hohensee Park is the central issue in this and in previous court actions. Plaintiff Ervin Hohensee has consistently claimed that he is the owner of Hohensee Park. The cast of characters is completed as follows: Defendant Leo Southard is the administrator d.b.n.c.t.a. of the estate of Adolph Hohensee. Defendant William Malone is the attorney for and Defendant William Purcell is the president of Scientific. Plaintiffs allege that these individuals are "imposters" by virtue of the fact that Plaintiff Ervin Hohensee is the majority stockholder and president of Scientific. Defendant William Bradican is the court-appointed receiver of Scientific. Defendant First National Bank of Jermyn, Pennsylvania, of which Defendant Leo Moskovitz is president, was the holder of an $80,000.00 mortgage purportedly covering all or part of Hohensee Park.
Adolph Hohensee died on October 4, 1967, and by will dated February 24, 1967, devised and bequeathed his residuary state as follows: one-eighth to Plaintiff Thelma Tompkins, one-eighth to Plaintiff Alma Arzoo, one-fourth to his daughter, Virginia Beadle, and the balance to his daughter Euphemia Hohensee. Plaintiff Ervin Hohensee was bequeathed one dollar. Thelma Tompkins, Alma Arzoo, and Virginia Beadle were nominated and later qualified as executrices of the estate. According to the inventory filed by Thelma Tompkins and Alma Arzoo, the estate included 4,382 of the 5,000 authorized shares of Scientific. On July 29, 1969, the Court of Common Pleas of Lackawanna County, Orphans' Court Division, entered an order accepting the resignation of Virginia Beadle as co-executrix. On August 1, 1969, the same court removed Alma Arzoo and Thelma Tompkins as co-executrices in the best interests of the estate because of a demonstrated conflict of interest, and appointed Defendant Southard as administrator d.b.n.c.t.a. The decree removing Alma Arzoo and Thelma Tompkins was affirmed by the Supreme Court of Pennsylvania. Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 270 A.2d 216 (1970).
Prior to Adolph Hohensee's death in 1967, litigation over the ownership of Hohensee Park had already begun. Besides Scientific, at least two individuals claimed title. On February 14, 1963, Gene Basalyga, an officer of Scientific, recorded a deed conveying to himself all of the real property of Scientific. On February 25, 1963, Plaintiff Ervin Hohensee recorded two deeds conveying to himself all of the real property of Scientific. Several proceedings were instituted by the two individual claimants seeking to declare the deeds of the other fraudulent and void. The final outcome of the proceedings are unclear from the record before me. In 1964, Scientific filed an action against Gene Basalyga seeking to declare the latter's deed fraudulent and void. Scientific Living, Inc. v. Basalyga, Court of Common Pleas of Lackawanna County in Equity, No. 9, September Term, 1964. In an opinion and order dated December 31, 1965, the court found that the deed from Scientific to Gene Basalyga was fraudulent and void. The decision was affirmed by the Supreme Court of Pennsylvania. Scientific Living, Inc. v. Basalyga, 424 Pa. 637, 227 A.2d 498 (1967).
Scientific brought a similar action against Plaintiff Ervin Hohensee, Court of Common Pleas of Lackawanna County in Equity, No. 16 September Term, 1965. On December 27, 1965, judgment was entered against Hohensee for failure to file an answer. On that same day, Hohensee removed the case to this Court, and this Court remanded the action to the state court on August 12, 1966. A final decree was entered against Hohensee by the state court on September 16, 1966. On appeal, the Supreme Court of Pennsylvania held that the final decree was entered prematurely and reversed. Scientific Living, Inc. v. Hohensee, 424 Pa. 360, 227 A.2d 815 (1967). Following a trial, the Chancellor decreed that the deeds from Scientific to Hohensee were fraudulent and void. The final decree, entered December 27, 1968, was affirmed in an Opinion by the Supreme Court of Pennsylvania. Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 270 A.2d 216 (1970).
In the meantime, while the above litigation was pending, Ervin Hohensee filed an action against Scientific in the United States District Court for the Eastern District of Virginia, Civil Action No. 4972-A, seeking to establish his title and right to possession to Hohensee Park. Service was effected upon Thelma Tompkins, holding herself out as secretary-treasurer of Scientific while she was in the District of Columbia. Scientific was represented by counsel from the District of Columbia who was not counsel for Scientific in the proceedings brought by that company against Ervin Hohensee in the Pennsylvania state courts. Upon representations by Thelma Tompkins and Alma Arzoo, purporting to act on behalf of Scientific, that Scientific acknowledged the validity of Hohensee's title and right to possession to the land, the District Court granted Hohensee's motion for judgment on the pleadings. Judgment was entered on December 17, 1968, in favor of Hohensee. Subsequently, when the facts surrounding the granting of Hohensee's motion were brought to the attention of the District Court on Scientific's motion to vacate the order for fraud, the Court stated:
"This Court being satisfied that Ervin Hohensee willfully withheld and misrepresented material facts to this Court when he presented the order of December 17, 1968, said order is hereby vacated and set aside and held for naught having been obtained by fraud perpetrated against this Court.
. . . This suit is dismissed at the cost of the plaintiff."
By virtue of his office as administrator d.b.n.c.t.a. of the estate of Adolph Hohensee, Defendant Southard had assumed possession and control of the stock of Scientific belonging to the estate and had formally removed Alma Arzoo and Thelma Tompkins as officers and directors of Scientific. Defendant Purcell was elected president of Scientific in August, 1969.
Following Adolph Hohensee's death, and until January, 1971, Plaintiffs Ervin Hohensee, Alma Arzoo, and Thelma Tompkins were in possession of Hohensee Park and collected rents therefrom, despite the order of the Court of Common Pleas of Lackawanna County enjoining Ervin Hohensee from in any way asserting title adverse to Scientific's interest. In April, 1970, Scientific filed an action, Scientific Living, Inc. v. Hohensee, Court of Common Pleas of Lackawanna County in Equity, No. 4 May Term, 1970, requesting the Court to issue a rule to show cause why Ervin Hohensee should not be held in contempt of court. Action on this matter by the lower court was postponed pending receipt of the Pennsylvania Supreme Court's order affirming the decree that Ervin Hohensee's deeds were fraudulent and void. On August 24, 1970, Alma Arzoo and Thelma Tompkins, purporting to act on behalf of Scientific, executed a deed conveying all of the real estate of Scientific to Ervin Hohensee. When this was discovered, Defendant Southard filed an application for the appointment of a receiver for Scientific and for an injunction against Hohensee, Arzoo and Tompkins. Southard v. Scientific Living, Inc., et al., Court of Common Pleas of Lackawanna County in Equity, No. 9 November Term, 1970. By Order dated December 3, 1970, Defendant William Bradican was appointed Temporary Receiver of Scientific and the Plaintiffs herein were temporarily enjoined from interfering with the assets of Scientific and ordered to turn over the assets to the receiver. A hearing date was set to determine whether the appointment of the receiver should be made permanent. On November 20, 1970, Ervin Hohensee filed a petition to set aside the judgment declaring his 1963 deeds fraudulent and void.
Hearings on these various matters were held on December 8, 14, 21, 28, 1970, and January 29, 1971. The court sitting en banc denied Hohensee's petition to set aside the judgment, found Hohensee to be in contempt of court, and made permanent the appointment of the receiver of Scientific and the injunctions against the Plaintiffs herein. These and other orders were appealed to and affirmed by the Supreme Court of ...