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Phillips v. Trello

decided: July 26, 1974.

FRANK PHILLIPS, SR., AND FRANK PHILLIPS, JR., BY HIS NATURAL GUARDIAN, FRANK PHILLIPS, SR., APPELLANTS,
v.
FRED A. TRELLO, GERALD ORSINI, LOUIS LUCENTI, RUDY FLASCO, JAMES SPATARA, DORA HARVARD AND MARY CASASANTA



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Submitted Under Third Circuit Rule 12(6).

Staley, Gibbons and Weis, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order of the district court which granted a Rule 12(b) (6) motion by two of seven defendants to dismiss failure to state a cause of action against them.*fn1 The plaintiffs, residents of Coraopolis, Pennsylvania, alleging jurisdiction under 28 U.S.C. § 1343 and claims under 42 U.S.C. §§ 1983 and 1985, sued a councilman of Coraopolis, four local police officers, and the two appellees, Dora Harvard and Mary Casasanta, charging all defendants with a conspiracy to cause various police and other regulatory authorities of Coraopolis Borough to carry on a campaign of illegal harassment against the plaintiffs. The complaint alleges:

"7. The defendants did conspire to commit and did commit the acts set forth hereinafter in concert with each other and/or with others.

8. The defendants did commit the acts set forth hereinafter in concert with each other and/or with others.

9. The acts set forth hereinafter did subject or cause to be subjected the plaintiff to the deprivation of his rights, privileges and immunities secured by the Constitution and the laws."

It then goes on to allege the series of claimed harassments quoted in the margin*fn2 and alleges personal and business injuries including the expenditure of large sums of money to provide legal services in defense of the groundless criminal actions brought against him and his son. The order granting the Rule 12(b) (6) motion by defendants Harvard and Casasanta provides in full:

" AND NOW, this 2nd day of March, 1973, upon consideration of motions of defendant Dora Harvard and Mary Casasanta to dismiss as to them, and of briefs in support thereof and in opposition thereto, and it appearing that said defendants are housewives and residents of Coraopolis, and that nothing is alleged against them except exercising their constitutional rights of petitioning their borough council for redress of grievances and of writing letters for newspaper publication [see Eastern R.R. Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127, 135, 136, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961); N.Y. Times v. Sullivan, 376 U.S. 254, 266, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)]; and it also appearing that said defendants are private citizens and that no State action is involved insofar as they are concerned;

IT IS ORDERED that said motions be and it hereby is granted, and the above-styled action be and it hereby is dismissed as to said defendants." Appendix at 33a-34a.

We reverse.

I.

There is no doctrine that housewives or residents of Coraopolis are ...


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