The opinion of the court was delivered by: MARSH
This matter is presently before us on motions to dismiss the complaint filed by each of the three named defendants.*Plaintiff, Hazo, is an individual resident of Pittsburgh, Pennsylvania, who trades and does business as Moses Hazo Company, a business dealing in the sale of antique rugs and furniture and objects d'art. Defendant, Mary E. Geltz (hereinafter referred to as Geltz), is an individual resident of Verona, Pennsylvania; defendant, Edward E. Burkhardt (hereinafter referred to as Burkhardt), is an individual resident of Pennsylvania and is an attorney admitted to practice before the courts of the Commonwealth of Pennsylvania; defendant, John Telford (hereinafter referred to as Telford), is an individual resident of Pennsylvania and at all times relevant to this action was a Deputy Sheriff of Allegheny County, Pennsylvania.
Jurisdiction is based on 28 U.S.C. § 1343 and specifically Title 42, §§ 1983 and 1985 of the Civil Rights Act. The motions to dismiss the complaint will be granted.
In reviewing the motions to dismiss, we shall construe the complaint in the light most favorable to plaintiff and consider its allegations as true. Curtis v. Everette, 489 F.2d 516 (3rd Cir. 1973); Melo-Sonics Corporation v. Cropp, 342 F.2d 856 (3rd Cir. 1965); Frederick Hart & Co. v. Recordgraph Corporation, 169 F.2d 580 (3rd Cir. 1948); 5 Wright & Miller, Federal Practice and Procedure: Civil § 1357 (1969).
On March 14, 1973, Hazo and Geltz entered into a written contract in which Geltz agreed to invest a sum of $3,000 into the business of Hazo. In consideration of this investment, Geltz was to receive 50 per cent of the net profits.
The contract provided for a term of six months and "[if] at the end of six months and (sic) either party does not want to continue, Mrs. Geltz, will receive the sum of $3,000.00, her full investment."
Hazo and Geltz failed to settle their disagreements, and on November 8, 1973, Geltz filed an action in the Court of Common Pleas of Allegheny County claiming $3,000.
The writ of summons in assumpsit and the complaint, a short form filed in the Small Claims Division of the Court of Common Pleas, were not personally served on Hazo, nor were they served on an adult member of her household or any person then in charge of Hazo's premises. On the contrary, plaintiff avers that the writ and complaint were served upon a tenant who was leasing an apartment from Hazo in the same building in which plaintiff resided; said tenant was not in charge of the premises and therefore, service of process was improper under the Pennsylvania Rules of Civil Procedure and ineffective to obtain personal jurisdiction over plaintiff.
On December 27, 1973, Geltz, by her attorney, Burkhardt, took judgment by default against Hazo for $3,000, plus costs. Subsequently, on a date unknown to plaintiff, defendant Burkhardt went to the office of the Sheriff of Allegheny County and requested that the Sheriff levy upon the personal property of Hazo and sell same in satisfaction of the judgment. At the same time, on the basis of a judgment obtained at No. 3788 of 1973 by ITT Corp., a writ of execution, obtained by representatives of the Pittsburgh law firm of Stonecipher, Cunningham, Beard and Schmidt, was issued and the Sheriff's office was instructed to levy on the personal property of Hazo. ITT's claim amounted to no more than $700. Attorneys for both Geltz and ITT were made aware of the respective orders of execution and both executions were scheduled for April 17, 1974.
The executions and necessary levies were made by defendant Telford, who was charged with certain responsibilities under Pennsylvania law as set forth in the Pennsylvania Rules of Civil Procedure. The Sheriff sales having been scheduled, Telford appeared at the residence of Hazo on April 17, 1974 to put up for bid all of Hazo's personal property that could be found on the premises. Present at that time were Hazo, Burkhardt, Geltz, attorneys Philip Beard and Roger Cunningham, representing ITT, and other persons, all of whom allegedly attended with Geltz for the purpose of carrying away in two trucks, the personal property to be offered for sale. Plaintiff avers that by prior arrangement between Burkhardt and attorneys for ITT, the sale on the ITT execution was permitted to proceed, with Geltz, by her attorney Burkhardt, bidding $99.25 as the amount of the costs on the ITT execution. No other bids were made since no other persons had come to bid, except Hazo, who was prevented by Telford from bidding, allegedly because she did not have cash, but offered a check. Burkhardt, however, was permitted to pay by check.
The value of the rugs, furniture, antiques, furnishings and other items sold at the sale was $35,000. Many of the items sold were not the property of Hazo, but were allegedly taken by Geltz and Burkhardt even though they knew the items belonged to other persons. It is further averred that "all of said items were sold and taken by Telford as items to be sold and members of the public who might have wished to be present to bid were uninformed as to the nature of the property which would be sold."
Plaintiff avers that all of the actions of defendants were taken pursuant to and under color of state law and official authority depriving Hazo of due process of law and equal treatment under the laws in violation of 42 U.S.C. § 1983. Furthermore, defendants are accused of conspiracy to deprive Hazo of her constitutional rights in violation of 42 U.S.C. § 1985. We shall deal with the propriety of an action under § 1983 and then review plaintiff's contentions under § 1985.
CAUSE OF ACTION UNDER SECTION 1983 AGAINST DEFENDANT BURKHARDT
We begin with an analysis of whether a claim has been presented against defendant Burkhardt, an attorney, under 42 U.S.C. § 1983. In order to find a valid claim under § 1983, two requirements must be met, (1) the plaintiff must assert a deprivation of rights, privileges and immunities secured by the Constitution and laws of the United States, and (2) the defendant must have acted under color of state law. Phillips v. Trello, 502 F.2d 1000, 1004 (3rd Cir. 1974); Chism v. Price, 457 F.2d 1037 (9th ...