The opinion of the court was delivered by: LORD, III
Plaintiff in this civil rights suit alleges that on Election Day, November 7, 1978, defendants acted in concert to evict him violently from a Philadelphia polling place. His complaint pleads federal claims under Sections 1983 and 1985(3) of Title 42 of the United States Code for violation of constitutional and statutory rights and pendent state claims under Pennsylvania law for various torts. Defendant Scardizzio has moved to dismiss under Rule 12 of the Federal Rules of Civil Procedure.
In an April 4, 1979 order, I raised Mea sponte the question of subject matter jurisdiction. Specifically, the parties were asked to brief: (a) whether state action sufficient for § 1983 jurisdiction was alleged, and (b) whether discrimination sufficient for § 1985(3) jurisdiction under Carchman v. The Korman Corp., 594 F.2d 354 (3d Cir. 1979) was alleged. A hearing was held on June 1, 1979. For the reasons discussed below, I conclude that this suit is properly before me under § 1983.
Plaintiff alleges that he is an attorney who, on Election Day, November 7, 1978, was serving as counsel to the Consumer Party and the Stop Rizzo Coalition.
The Consumer Party is a political party which in the election held on that day had candidates on the ballot for the offices of Governor and Lt. Governor of the Commonwealth of Pennsylvania and for the State Legislature. The Stop Rizzo Coalition was a group of organizations and individuals organized to work to defeat the proposed change in the Philadelphia Charter that would have allowed Mayor Rizzo to seek a third term in office.
Plaintiff's assignment as counsel to these two groups on Election Day was to serve on a ward patrol in the Thirty-third Ward in the Kensington section of Philadelphia. It was plaintiff's responsibility to visit all twenty-five divisions in the Thirty-third Ward to check for election irregularities and to confer with Consumer Party poll-watchers.
The complaint alleges that at approximately 10:30 A. M. on November 7, 1978 at the Twelfth Division polling place in the Thirty-third Ward, located at 1000 E. Luzerne Street, Philadelphia, plaintiff was unjustifiably threatened by defendant Jordan with forceable removal from the polling place. Plaintiff left the Twelfth Division polling place and reported to the Stop Rizzo Coalition that there were violations, threats and harassment at 1000 E. Luzerne Street and suggested that the District Attorney's Office be notified. Stop Rizzo Coalition headquarters then informed the District Attorney of plaintiff's report and an assistant district attorney was sent to the Twelfth Division.
Plaintiff returned to 1000 E. Luzerne Street at approximately 3:00 P.M. He alleges that upon entering the polling place, defendant Jordan grabbed and dragged him outside the entrance. "Defendant Scardizzio then grabbed plaintiff with a headlock and pushed his fingers in plaintiff's face, grabbing the vicinity of his eye. Still holding plaintiff, defendant Scardizzio then took two full swings at plaintiff. With the second swing, defendant Scardizzio struck plaintiff in the back of his head with his fist." See complaint P 11.
During and after this attack, defendants allegedly told plaintiff that he and his "people" should not return to that polling place. Fearing further harm, plaintiff left the area and did not return.
The complaint alleges that defendant Jordan was an officially certified Democratic Party poll-watcher for the Thirty-third Ward, Twelfth Division on November 7, 1978. Defendant Scardizzio, in his answers to plaintiff's complaint and interrogatories, admitted that he also was on November 7, 1978 an officially certified Democratic Party poll-watcher.
Plaintiff contends that defendants' participation as official poll-watchers in the November 7, 1978 election constitutes state action sufficient to establish that each acted under color of state law within the meaning of 42 U.S.C. § 1983.
Relevant here are the provisions of the Election Code concerning poll-watchers. 25 P.S. § 2687. Section 2687 creates the position of poll-watcher and entrusts to the political parties responsibility for that post. The number of poll-watchers allowed, the manner of their appointment, their location within the polling place, the activities permitted and the amount of compensation allowed are all dictated by the statute.
Poll-watchers, like other voters, are "entitled to challenge any person making application to vote and to require proof of his qualifications." Unlike other voters, however, poll-watchers are "permitted to keep a list of voters" and, more important, are authorized to remain at the polling place for the entire Election Day, rather than the time necessary to vote only. This authority to remain at the polling place and thereby challenge numerous voters is granted the poll-watcher by the Election Code and proven by possession of an official ...