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April 12, 1978

PROVIDENT NATIONAL BANK, JAMES TRACEY, III, W. R. SOLVIBILE, RICHARD W. HOPKINS, WALTER M. DINDA, ALAN COOPER, AMERICO V. CORTESE, Prothonotary, a. smukler, edward kelly, joseph a. sullivan, sheriff, MANSFIELD CARRAFIELLO, KOLEN & LERCH, JOSEPH S. KOLEN, jointly, individually or in alternative

The opinion of the court was delivered by: LUONGO

 Eli Raitport filed the complaint in this action pro se, seeking both damages and injunctive relief under the 1871 Civil Rights Act, 42 U.S.C. §§ 1983, 1985 (1970), and under sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976). The defendants -- Provident National Bank and its counsel, various state and local government officials, several private individuals, and a local real estate firm--are linked by reason of their involvement in the events leading up to a sheriff's sale on December 6, 1976, at which a house owned by Raitport was sold to the high bidder. The governmental defendants, who have filed no answers, now move to dismiss the complaint for failure to state a claim, asserting absolute "quasi-judicial" immunity. Fed. R. Civ. P. 12(b). See generally Imbler v. Pachtman, 424 U.S. 409, 423, 47 L. Ed. 2d 128, 96 S. Ct. 984 n.20 (1976) (origin of "quasi-judicial" in this context). In addition, all but one of the private defendants seek dismissal of the complaint for failure to state a claim. For the reasons hereafter stated, I conclude that the complaint must be dismissed as to some, but not all, of the governmental defendants, and as to some, but not all, of the private defendants.

 Taking as true all the material allegations of Raitport's rather sketchy pro se complaint, Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) (per curiam), the facts in this case may be summarized as follows. In 1975, Provident National Bank (Provident) brought an action in assumpsit against Raitport in the Court of Common Pleas of Philadelphia County. The amount demanded was "approximately $4,000." Complaint para. 6. Raitport in turn filed an answer and various counterclaims totalling more than $20,000, this amount "clearly appearing on the face of the counterclaims." Id. On June 21, 1976, the prothonotary, defendant Cortese, nevertheless docketed a certificate of readiness executed by Provident's counsel, defendant Tracey, which falsely stated that the amount in controversy did not exceed $10,000. See generally C.P. Phila. R. 150(B)(11). Based on this representation, and in accordance with court rules, the case then was submitted to a panel of three attorneys voluntarily serving as arbitrators. See generally C.P. Phila. R. 180; Pa. Stat. Ann. tit. 5, § 30 (Purdon Supp. 1977) (enabling legislation). Raitport received notice of a hearing before the panel, but he declined to attend, believing that the panel lacked jurisdiction because the actual amount in controversy exceeded $10,000. At the hearing, on October 6, 1976, the arbitrators -- defendants Hopkins, Dinda, and Cooper -- found in favor of Provident both on its original complaint and on Raitport's counterclaims. Defendant Cortese entered judgment on this award on November 1, 1976. See generally Pa. Stat. Ann. tit. 5, §§ 53, 54 (Purdon 1963).

 Provident then obtained a writ of execution from defendant Cortese. See generally Pa. R. Civ. P. 3102, 3103. This writ ordered defendant Sullivan, the Sheriff of Philadelphia County, to sell a house owned by Raitport and leased by him to Scientronic Corporation. Sullivan posted on the subject property notice of the forthcoming public sale. See generally Pa. R. Civ. P. 3129. (On November 28, 1976, Raitport filed in the Court of Common Pleas a motion to strike both the judgment in favor of Provident and the writ of execution. The record does not disclose what action, if any, the court took on this motion.) On December 1, 1976, Raitport delivered to Sheriff Sullivan a claim that the subject property could not be sold by reason of art. I, § 17 of the Pennsylvania Constitution, *fn1" and, on behalf of Scientronic Corporation, a property claimer, which in certain circumstances would mandate that execution be stayed. See Pa. R. Civ. P. 3121(a)(3) (execution shall be stayed "pending disposition of a property claim filed by a third party ") (emphasis supplied). On December 3, 1976, Raitport telephoned the sheriff's office to press his contention that the sale could not lawfully be carried out. Defendant Carrafiello, who evidently is a deputy sheriff, advised Raitport that the sheriff's office "[does] not apply the law." Amendment to the Complaint (Document No. 9), para. 35. "On December 6, 1976, the house was sold by Sheriff [Sullivan] to [defendant] Joseph Kolen and/or [defendant] Kolen & Lerch." Id. P. 36.

 One month prior to the sale, Raitport attempted to file criminal complaints against defendants Tracey (Provident's counsel), Solvibile, and Hopkins, Dinda, and Cooper (the three arbitrators). See generally Pa. R. Crim. P. 133(B). Defendant Smukler, an assistant district attorney for Philadelphia, "arbitrarily and capriciously" refused to approve the complaints, thereby preventing the issuance of process against those persons. Complaint para. 27. In addition, defendant Kelly, a detective assigned to Smukler's complaint-screening unit at the district attorney's office "interfered" with Raitport's attempt to file criminal complaints. Id. P. 30.

 Based largely on the foregoing facts, along with some conclusory allegations of conspiracies among the defendants, Raitport asserts claims under both the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1976), and the 1871 Civil Rights Act, 42 U.S.C. §§ 1983, 1985 (1970). All eight governmental defendants move to dismiss the complaint for failure to state a claim, principally on the ground of absolute "quasi-judicial" immunity. The private defendants also seek dismissal of the complaint. In considering these motions, I will deal first with the civil rights claims, and then turn to the antitrust claims.

 Raitport's civil rights claims are based in part on section 1983, which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

 As I noted earlier, Raitport seeks both damages and injunctive relief under section 1983. For the sake of convenience, I will first consider each governmental defendant's claim of immunity from a section 1983 action for damages, and then consider whether an action for injunctive relief may be maintained. See generally Wood v. Strickland, 420 U.S. 308, 315, 43 L. Ed. 2d 214, 95 S. Ct. 992 n.6 (1975) ("Immunity from damages does not ordinarily bar equitable relief as well."); Briggs v. Goodwin, 569 F.2d 10, 15 n.4 (majority opinion), 37 n.62 (Wilkey, J., dissenting) (D.C. Cir. 1977) (same). Finally, I will examine the contention, advanced by one of the private defendants who is being sued under section 1983, that the complaint fails to state a claim under that section as to him.


 With respect to the section 1983 action for damages, the governmental defendants seek to avail themselves of the doctrine of judicial immunity, as set forth in Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). *fn2" Ray was a section 1983 action brought by civil rights demonstrators against several police officers who arrested them and against Spencer, "a municipal police justice" who tried, convicted, and sentenced the demonstrators. 386 U.S. at 549. The Court of Appeals for the Fifth Circuit set aside a jury verdict against the officials, and the Supreme Court affirmed. Chief Justice Warren, writing for seven other Justices, stated, in the language that is most pertinent here:

"We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than to adjudge petitioners guilty when their cases came before his court. Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20 L. Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.' [Citation omitted.] It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.
We do not believe that this settled principle of law was abolished by § 1983, which makes liable 'every person' who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine."
386 U.S. at 553-55 (footnotes omitted).

 Although not one of the governmental defendants in this case is a judge, Pierson v. Ray is significant nonetheless. Absolute "quasi-judicial" immunity from section 1983 damages liability has been accorded to officials other than judges. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 431, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976) (prosecutor's conduct "in initiating a prosecution and in presenting the State's claim" Bauers v. Heisel, 361 F.2d 581, 586-97 n.7 (3d Cir. 1966) (en banc) (collecting cases), cert. denied, 386 U.S. 1021, 18 L. Ed. 2d 457, 87 S. Ct. 1367 (1967); discussion infra. Thus, the resolution of this aspect of the motions to dismiss will require an examination of the precedents involving various kinds of officials.

 To begin with, defendants Hopkins, Dinda, and Cooper-- the three arbitrators who found against Raitport--claim the benefits of "quasi-judicial" immunity. They emphasize that as to cases within their jurisdiction, the General Assembly of Pennsylvania has clothed them with powers strikingly similar to those exercised by a trial judge. See Pa. Stat. Ann. tit. 5, § 121 (Purdon 1963) C.P. Phila. R. 180, Rule III(E). I note, too, that a panel of the Third Circuit previously held an arbitrator to be immune on the ground that "he was performing quasi-judicial duties." Cahn v. International Ladies' Garment Union, 311 F.2d 113, 114 (3d Cir. 1962) (per curiam); accord, Hill v. Aro Corp., 263 F. Supp. 324 (N.D. Ohio 1967). See also McCormack & Kirkpatrick, Immunities of State Officials Under Section 1983, 8 Rut.-Cam. L.J. 65, 78-79 (1976) (referees and masters shielded by judicial immunity). Raitport, however, contends, that immunity is unavailable to these three defendants because their award was rendered in a case where the amount in issue exceeded then thousand dollars. Thus, he argues, the arbitrators acted beyond their jurisdiction, and "it is elementary that in order to enjoy judicial immunity the officer must act within [his] jurisdiction." Plaintiff's Memorandum in Opposition (Document No. 16) at 1.

 The issue is not so simple, however. Even where a judge is concerned, immunity is forfeited only for actions performed in "the clear absence of all jurisdiction over the subject-matter." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646 (1871); see Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331, 46 U.S.L.W. 4253, 4255 (U.S. March 28, 1978). Where an arbitrator is concerned, moreover, the single reported decision on this point holds that immunity attaches even where a litigant calls into question the arbitrator's jurisdiction. Tamari v. Conrad, 552 F.2d 778 (7th Cir. 1977). Judge Swygert noted in that decision, and I agree, that "individuals . . . cannot be expected to volunteer to arbitrate disputes if they can be caught up in the struggle between the litigants and saddled with the burdens of defending a lawsuit." 552 F.2d at 781. Finally, the arbitrators' immunity does not deprive Raitport of a remedy for any wrong he may have suffered; it simply requires that he pursue his remedies against Provident, his "real adversary," rather than against these three defendants. Id. Accordingly, I conclude that Hopkins, Dinda, and Cooper are absolutely immune from liability for damages under section 1983.

 Defendant Cortese, the prothonotary of the Court of Common Pleas of Philadelphia County, also asserts absolute "quasi judicial" immunity from liability for damages. As I read the complaint, however, Raitport's civil rights claims against Cortese are based only on section 1985, and not on section 1983. I will consider the issue of immunity under section 1985 shortly.

 Defendants Smukler and Kelly, an assistant district attorney and a detective, respectively, also assert "quasi-judicial" immunity from damages under section 1983. They rely principally upon Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), in which the Supreme Court held that a state prosecutor is absolutely immune from liability for damages under section 1983 for his conduct "in initiating a prosecution and in presenting the State's case." 424 U.S. at 431. See also Brawer v. Horowitz, 535 F.2d 830 (3d Cir 1976) (like immunity accorded federal prosecutor in action brought directly under the fifth amendment). I note that the Imbler Court expressly declined to consider whether immunity also attaches to "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." 424 U.S. at 430-31 (footnote omitted).

 Raitport seeks to impose liability on Smukler for his refusal to approve Raitport's private criminal complaint against several of the other defendants in this case. It is undisputed that Smukler "is an Assistant District Attorney in Philadelphia County and is responsible for screening and approving [private criminal complaints]." Defendants' Memorandum of Law (Document No. 21) at 1. See generally Pa. R. Crim. P. 133(B). Thus, the question here is whether Smukler's responsibilities fit in the scheme set out in Imbler.

 Without belaboring the point, it seems to me that the decision to approve or disapprove a private criminal complaint fits squarely within the broader function of "initiating a prosecution," and therefore it cannot subject a prosecutor to civil liability for damages under section 1983. Approval of a private criminal complaint provides a foundation for the issuance of process against the person or persons named therein, Pa. R. Crim. P. 134, and is specifically recognized as one means of instituting proceedings in a non-summary criminal case. Pa. R. Crim. P. 101; see also Pa. R. Crim. P. 51(A)(4) (summary criminal cases). Disapproval of such a complaint, unless overturned by a common pleas court judge, Pa. R. Crim. P. 133(B)(3)(ii), amounts to a decision not to institute such proceedings. It would be anomalous to hold that because Imbler spoke only of " initiating a prosecution," the prosecutor who approves a complaint is immune while the prosecutor who disapproves a complaint is subject to civil liability for damages. (Emphasis supplied.) Just as the prosecutor who initiates a criminal case requires protection from the defendant who "transforms his resentment at being prosecuted into the ascription of improper and malicious motives to the State's advocate," Imbler, supra, 424 U.S. at 425, so the prosecutor who concludes that prosecution is unwarranted requires protection from the complainant whose excessive zeal for invoking the criminal process blinds him to any aspects of the case that counsel against prosecution. Cf. Turack v. Guido, 464 F.2d 535 (3d Cir. 1972) (per curiam) (district attorney immune from damage suit arising out of refusal to institute criminal proceedings against a third party). Moreover, to accord absolute immunity only to the decision to prosecute would be to run the risk of subtly encouraging that decision, rather than the decision not to prosecute, in some cases. Because I believe that allowing only "one-sided" immunity might thus contaminate the prosecutorial decision-making process, I hold that disapproval of a criminal complaint fully partakes of the immunity recognized in Imbler. Accordingly, defendant Smukler is absolutely immune from liability for damages under section 1983.

 With respect to defendant Kelly, a detective assigned to Smukler's unit, the immunity issue cannot be resolved on the present record. The complaint contains the following allegations regarding Kelly:

"On November 4, 1976, plaintiff called A. Smukler for appointment purport to file a criminal complaint. A. Smukler advised plaintiff that he does not need appointment, just proceed through detective at the desk in room 522. On November 5, 1976, plaintiff approached detective at the desk with request to file a criminal complaint against R. W. Hopkins, W. M. Dinda and Alan Cooper. Edward Kelly, Chief of that detectives' office interfered and instructed the detective not to process the complaint."
Complaint para. 30.

 Unfortunately, the memoranda of law filed on behalf of Kelly do not address the nature of Kelly's responsibilities within Smukler's unit, nor do they shed any light on the events alleged in the complaint. I cannot determine at this stage of the case whether Kelly is entitled to absolute immunity from civil liability for his actions vis-a-vis Raitport on November 5, 1976. See Hazo v. Geltz, 537 F.2d 747, 751 (3d Cir. 1976). Accordingly, I cannot dismiss the complaint as to defendant Kelly on that ground. *fn3"

 With respect to Sheriff Sullivan and Deputy Sheriff Carrafiello, I am again constrained by Hazo v. Geltz, supra, to defer resolution of the immunity issue. In Hazo, a panel of the Third Circuit held that the degree of immunity enjoyed by a deputy sheriff in regard to certain activities depends in part upon the degree of "direct judicial supervision" over those activities. 537 F.2d at 751. The plaintiff in Hazo alleged that she was wrongfully denied the opportunity to bid when, following a default judgment, her personal property was offered at a sheriff's sale; she also complained of defective service of process and inadequate public notice regarding the sale. The district court held that the deputy sheriff was entitled to absolute immunity and dismissed the complaint. On appeal, Judge Biggs, writing for the panel, emphasized the importance of direct judicial supervision to a finding of absolute, rather than qualified, immunity:

"As the record now stands, we cannot assess whether Deputy Sheriff Telford's alleged conduct could sustain a cause of action. We do not know to what extent the procedures requiring or allowing the refusal [or acceptance] of the [bid], the type of sale notice, and the service of process are directly supervised and sanctioned by the bench. It may be that these procedures have been developed as a matter of administrative convenience, not under direct judicial supervision. In short, this case could be a qualified immunity case."
537 F.2d at 751 (emphasis in original).

 The court of appeals accordingly remanded the case for the development of an adequate record. Id.

 Hazo is squarely controlling here, for Raitport, too, is challenging the lawfulness of a sheriff's sale, albeit one involving real, rather than personal, property. Until the parties address themselves to the degree of judicial supervision over Sullivan's and Carrafiello's activities vis-a-vis Raitport, I simply am unable to determine whether they should be afforded absolute "quasi-judicial" immunity from Raitport's damages claims under section 1983. Thus, I cannot dismiss the ...

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