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July 13, 1978

Robert A. MILLER, William J. Kuntz, Charles D. Cowley, David P. Trulli, Frederic G. Antoun and Glenn A. Wenrich. C. M. CLARK INSURANCE AGENCY, INC. v. Robert A. MILLER, William J. Kuntz, Charles D. Cowley, David P. Trulli, Frederic G. Antoun and Glenn A. Wenrich

The opinion of the court was delivered by: DITTER

Safeguard Mutual Insurance Co. and its affiliate, C. M. Clark Insurance Agency, Inc., brought this civil rights action to redress injuries arising from an alleged conspiracy by various employees of the insurance department of the Commonwealth of Pennsylvania. The defendants currently before the court are Frederick Antoun, a deputy attorney general in Pennsylvania who represented the insurance department from the mid-1950's to June, 1971; David Trulli, an assistant attorney general assigned to the insurance department from September, 1965, until October, 1967, and a deputy insurance commissioner from October, 1967, to August, 1971; Charles D. Cowley, an assistant attorney general serving as an associate counsel in the insurance department from 1967 to 1973; and Glenn Wenrich, who was employed by the insurance department as an insurance company examiner at all times relevant to this suit.

The case is brought pursuant to 42 U.S.C. §§ 1981 through 1988, and jurisdiction is based on 28 U.S.C. §§ 1343 and 1332. The facts alleged in the complaint were succinctly summarized by the Court of Appeals for the Third Circuit as follows:

Acting under color of Pennsylvania law, the defendants and other unknown parties entered into a conspiracy in violation of 42 U.S.C. §§ 1981-88 to deprive Safeguard and Clark of constitutionally protected rights; that acting in bad faith, willfully and maliciously, but under color of state law, they caused a false report of examination of each plaintiff to be issued; caused a suspension order to be issued arbitrarily, maliciously and without notice; improperly impounded plaintiffs' records; caused an ex parte restraining order to be issued; caused a Petition for Liquidation to be issued; and much more, all to plaintiffs' damage.

 472 F.2d 732, 732-33 (3rd Cir.).

 This litigation has had an extremely complex history. Two defendants, not now involved in the instant suit, were sued in other districts, producing extensive court opinions. C. M. Clark Insurance Agency, Inc. v. Maxwell, 156 U.S.App.D.C. 240, 479 F.2d 1223 (1973); C. M. Clark Insurance Agency, Inc. v. Reed, 390 F. Supp. 1056 (S.D.Tex.1975). Both of these provide useful discussions of the relevant facts and law. Furthermore, they may have collateral estoppel ramifications beyond their obvious precedential value. *fn1"

 Meanwhile, the case has been pursued in this district for quite a long time. Our late Chief Judge, John Lord, issued an opinion in 1971 dismissing as to all defendants on the ground that their acts were within the ambit of governmental immunity. The chief judge found that the defendants had acted in good faith, and were therefore entitled to this immunity. He also expressed some doubt as to whether a showing of good faith was even necessary. Safeguard Mutual Ins. Co. v. Miller, 333 F. Supp. 822 (E.D.Pa.1971).

 This decision was reversed by the Court of Appeals, which held that a Rule 12(b)(6) motion was not a proper vehicle for deciding a governmental immunity question. Rather, the court said, a record must be developed on the scope of defendants' authority and discretion in order to determine whether they should be immune from liability under the civil rights laws. Furthermore, the court said that a record was also needed before dealing with the defense of good faith. 472 F.2d 732 (3d Cir. 1973). The Court of Appeals remanded in order that such a record could be developed. I was assigned the case at this point on transfer.

 In an opinion dated March 31, 1975, reported at 68 F.R.D. 239, I noted that the parties had now submitted extensive affidavits, thereby creating an adequate record on the scope of authority question. Information was still lacking, however, as to good faith. This aspect of the case had become particularly important in light of case-law developments subsequent to 1973. At that time, in its remand opinion, the Court of Appeals had treated good faith simply as a defense, wholly separate and apart from the issue of immunity. In 1974, however, the Supreme Court effected a marriage of the two by holding that a showing of good faith is necessary in order for executive immunity to attach. Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S. Ct. 1683, 1692, 40 L. Ed. 2d 90 (1974). This was adopted by the Third Circuit in Goode v. Rizzo, 506 F.2d 542 (3d Cir. 1974). The Goode decision was reversed by the Supreme Court in 1976, but the reversal was on other grounds. *fn2"

 In order to create a complete record, therefore, I ordered a hearing at which the parties presented evidence on the defendants' good faith, and additional briefs were thereafter submitted on this question. I then ordered the plaintiff to file "proposed findings setting forth each specific act of each defendant which violated a constitutional right of the plaintiff, together with a supporting brief . . . " These proposed findings were submitted, together with the defendants' response. My order further provided that "as to each of the proposed findings referred to in paragraph 1 hereof, it has been agreed by counsel that the court shall decide whether or not each defendant was protected by an unqualified immunity."

 Currently before me is the defendants' motion for summary judgment. They assert that they are prosecutors, and as such they are entitled to absolute immunity for all their acts in connection with this matter. The Supreme Court recently recognized such an immunity for prosecutors in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976).

 The Imbler suit involved the felony murder prosecution of the plaintiff in connection with a grocery store robbery. Following Imbler's conviction, new evidence was discovered which cast serious doubt on the credibility of the prosecution's chief identification witness. The plaintiff first sought his release in the state courts, but was unsuccessful. He then petitioned the federal courts for a writ of habeas corpus. The District Court granted the writ based on its finding of prosecutorial misconduct in the culpable use of false or misleading testimony and the suppression of evidence favorable to the defense. 424 U.S. at 414-15, 96 S. Ct. at 987. The Ninth Circuit affirmed and the plaintiff was released after some nine years of incarceration.

 The newly-freed plaintiff then brought an action under Section 1983 against prosecutor Pachtman and several police officers, alleging a conspiracy to convict him. He claimed that Pachtman had both intentionally and negligently allowed the identification witness to give false testimony as found by the district court and that the suppression of evidence was also "chargeable" to Pachtman. Furthermore, Imbler charged that Pachtman had known of a lie detector test which "cleared" the plaintiff and that he used an artist's sketch which had been altered to resemble the plaintiff.

 The District Court dismissed the complaint under Rule 12(b)(6) and the Ninth Circuit affirmed, finding that Pachtman's alleged acts were committed, "during prosecutorial activities which can only be characterized as an "integral part of the judicial process.' " 500 F.2d 1301, 1302 (9th Cir. 1974), quoting Marlowe v. Coakley, 404 F.2d 70 (9th Cir. 1970). The Supreme Court granted certiorari "to consider the important and recurring issue of prosecutorial liability under the Civil Rights Act." 424 U.S. at 417, 96 S. Ct. at 988.

 Although it had recently recognized a qualified immunity under Section 1983 for a state governor, Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), and state school officials, Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975), the Court said that these decisions did not necessarily control the instant case. Rather, the question depends on the immunity granted the relevant official at common law and the interests underlying it. After reviewing the relevant authority, the Court concluded that at common law, prosecutorial immunity was clearly absolute. 424 U.S. at 424, 96 S. Ct. at 992. The reason underlying this immunity was the public's interest in having vigorous prosecutors free from fear of liability for the consequences of their official acts. The Court pointed out that the threat of litigation could cause the prosecutor to shade or alter his decisions instead of exercising independent judgment, and harassment from frivolous litigation would divert his attention from his public duties.

 The Imbler court then concluded that the same public policy considerations required absolute immunity for prosecutors under Section 1983. 424 U.S. at 427, 96 S. Ct. at 993. Noting that the threat of Section 1983 suits would have the same damaging effects as potential common law liability, the Supreme Court went on to hold that a Qualified immunity would not be adequate. "It is fair to say, we think, that the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials." 424 U.S. at 425, 96 S. Ct. at 992-93.

 The plaintiff here argues, however, that the defendants in the present suit are not prosecutors at all, and are thus not shielded by prosecutorial immunity. A prosecutor, I am told, ordinarily presents factual material to grand juries or to finders of fact at criminal trials. It is asserted that very little of defendants' wrongful conduct is alleged to have occurred during the pursuit of such activities.

 I agree with plaintiff's argument as to defendant Glenn A. Wenrich. In his affidavit, submitted to detail the scope of his authority and duties, Wenrich states that he is employed as an insurance company examiner. Attached to the affidavit is the class specification of the Office of Administration of the Commonwealth of Pennsylvania, which gives a complete job description for Wenrich's position. The specification defines the duties of an insurance company examiner as "advanced technical auditing and accounting work in the examination of the operations and financial conditions of insurance companies . . . Work involves examining records, auditing company statements, and preparing reports to assure that insurance company operations and financial conditions adhere to insurance laws, rules, and regulations." The specification also offers the following examples of work performed:

Examines, verifies, and analyzes fiscal data and records of insurance companies for adherence to state ...

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