seizure action, the receptionist was advised of their purpose and she was shown the IRS levy and seizure form. The Jetson receptionist did not open the locked door that entered into the office and work area and the revenue officers removed the pins from the hinges of the inner door and entered the office and work area. Defendant Wozniak then advised Plaintiff Griffith that they were closing the plant. A search of the office area was conducted and approximately 30 work orders were taken by the officers. A padlock was placed on the door when they left. The work orders were returned and approximately three weeks later the seizure was terminated. No warrant, court order, or other document purporting to authorize the search and seizure was ever displayed to Plaintiff Griffith.
Jetson's attempts to have the IRS action of April 1, 1974 rescinded proved unsuccessful. After this the Plaintiffs on or about April 23, 1974 received a notice from the SBA declining Jetson's request for the flood disaster loan for the reasons stated numerous times before, plus the alleged deterioration of its business to the point of padlocking by the IRS for the nonpayment of taxes. Jetson has not been able to return its operation to production after the IRS abandonment of its seizure because of the Commonwealth's subsequent padlocking of the premises for unpaid rent.
Since the levy and seizure did not produce property to satisfy the tax assessment, the IRS assessed a 100% Penalty against Plaintiff Griffith, as chief corporate officer on July 16, 1974. In the six months following the notice, Plaintiff Griffith allegedly wrote a series of letters to the IRS requesting an appointment with the District Director which were not answered. His purpose was to discuss and seek an agreement upon a plan for the installment payments of Jetson's outstanding tax liability. A conference, however, was granted and held on March 12, 1975 but no arrangement for payments was arrived at. Throughout the remainder of 1975, 1976 and 1977, Plaintiff Griffith wrote to and enlisted the assistance of Senators Schweiker and Heinz, Congressmen Schneebeli and Ertel and President Ford. Plaintiff Griffith contends that Defendants refused his reasonable requests for interviews and appointments.
Count I as previously noted concerns the alleged illegal search and seizure conducted at Plaintiff's business on April 1, 1974. Plaintiff Griffith alleges he suffered humiliation before his employees because of the search and has been subjected to mental suffering. Also, it is alleged that the incidents of April 1, 1974 caused the closing of the business premises and is the reason why they remain closed. This count only seeks money damages against Defendants Murphy and Wozniak and not the other Defendants.
In retrospect, it is now known that if the intrusion of April 1, 1974 involved a warrantless search and seizure, the acts of the revenue officers were unconstitutional. The United States Supreme Court held in G. M. Leasing Corporation v. United States, 429 U.S. 338, 97 S. Ct. 619, 50 L. Ed. 2d 530 (1977), that a warrantless entry into a corporation's business office by Internal Revenue Service agents who seized books, records, and other property in partial satisfaction of jeopardy assessments for a federal income tax deficiency to be an intrusion into privacy that violated the Fourth Amendment. Before this decision, however, over a century of legal precedent permitted warrantless searches and seizures by revenue officers. The crucial time for determining the propriety of Defendants' conduct is, of course, the time of the alleged constitutional infringement. At the time of April 1, 1974, the standard practice of the IRS was to interpret 26 U.S.C. § 6331(b), that authorizes "distraint and seizure by any means", as authorizing seizures without a search warrant. Therefore, at the time of the alleged unconstitutional search and seizure, the acts of Defendants were pursuant to statute and in line with the practice of the IRS and the law as it was interpreted at that date.
In determining whether liability should be placed upon these two Defendants, their conduct and intentions must be determined as of April 1, 1974. It is the law that officials can reasonably rely upon the validity of standard practice which only subsequently is found to be unconstitutional, See e.g., Clarke v. Cady, 358 F. Supp. 1156, 1163 (W.D.Wis.1973); Rios v. Cessna Finance Corporation, 488 F.2d 25, 28 (10th Cir. 1973); Slate v. McFetridge, 484 F.2d 1169 (7th Cir. 1973). Public officials, in this case IRS officers, are not charged with the obligation of predicting the future course of constitutional law and reliance on a law or practice believed to be constitutional is per se reasonable conduct.
Defendants Murphy and Wozniak are entitled to the defense of qualified immunity for their actions concerning the entry of April 1, 1974. In a Bivens
type action such as this, the Plaintiffs are not entitled to money damages if the actions of the Defendants are protected by qualified immunity. The qualified immunity test that is applicable in this Bivens case is the same as that which applies to section 1983 actions for civil rights violations against state officials. See, Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Bivens v. Six Unknown Federal Narcotics Agents, 456 F.2d 1339 (2d Cir. 1972). The standard is that "an officer is protected from liability if he acts on a good faith belief that his conduct is not improper, so long as that belief is reasonable." G. M. Leasing Corporation v. United States, 560 F.2d 1011, 1015 (10th Cir. 1977); Bivens, 456 F.2d at 1348; Mark v. Groff, 521 F.2d 1376, 1380 (9th Cir. 1975). Under the facts of the present case it is clear that the Defendants had a good faith belief that the entry of the Plaintiff's business premises was not improper, and their action was reasonable as it was the standard practice of the IRS and proper under the law at that time.
Defendants Murphy and Wozniak have both filed affidavits stating that at all times they acted in good faith and under the belief that their activities were proper and necessary in carrying out their official duties. Plaintiff Griffith tries to refute this by stating that these two men were uncooperative in resolving the tax liability and refers to some incidents that could show that the relationship between the parties was not very congenial. The affidavits of the Defendants that they acted in the good faith belief that their conduct was not improper, however, remains uncontroverted. Under such circumstances summary judgment is appropriate for the Defendants. See, Pilla v. Alexander, 558 F.2d 509 (8th Cir. 1977). The United States Supreme Court has recently stated that "damage suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity. See 416 U.S. at 250, 94 S. Ct. at 1693. In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will insure that federal officials are not harassed by frivolous lawsuits" Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 2911, 57 L. Ed. 2d 895, 917 (1978) Citing Scheuer v. Rhodes, 416 U.S. 232, 250, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). In sum, these two factors, the uncontroverted affidavits of good faith belief that their actions of April 1, 1974 were lawful, and that the constitutional right alleged to be violated was not clearly established at the time, point to the conclusion that qualified immunity should apply and that the Defendants should not be held liable in damages for their reasonable actions. See, Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978); Norton v. Turner, 427 F. Supp. 138 (E.D.Va.1977); G. M. Leasing Corporation v. United States, 560 F.2d 1011 (10th Cir. 1977); Pilla v. Alexander, 558 F.2d 509 (8th Cir. 1977).
Defendants also assert the defense that Count I is barred by the applicable Pennsylvania statute of limitations. The warrantless search and seizure took place on April 1, 1974 and suit was not filed until February 14, 1978. This presents the question, which Pennsylvania statute of limitation is applicable to the intrusion in issue or alternatively which tort recognized in Pennsylvania is the most similar to the acts alleged. The standard for assessing the similarity of the various state law torts to the federal claim presented requires analysis of three factors: "(1) the defendant's conduct, (2) the plaintiff's injury, and (3) the relief requested." Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894 (3d Cir. 1977). Using these three factors, it is evident that Plaintiff's action is most analogous to the interests protected by the tort of invasion of privacy which has been held to fall within the two year Pennsylvania statute of limitations. 12 P.S. § 34; Hull v. Curtis Publishing Co., 182 Pa.Super. 86, 125 A.2d 644 (1956).
The Bivens action for a warrantless entry protects the plaintiff from an invasion of privacy. Particularly, in G. M. Leasing Corporation v. United States, 429 U.S. at 351-59, 97 S. Ct. at 631, the court was concerned with the Intrusions into privacy of the corporate plaintiff as it stated:
"We therefore decline to read (Section 6331) as giving carte blanche for warrantless invasions of privacy. Rather, we give it its natural reading, namely, as an authorization for all forms of Seizure, but as silent on the subject of intrusions into privacy."