under any of these principles. The Hovanec affidavit establishes that he stopped Donaldson because he detected on his radar that Donaldson was speeding. There is nothing in the record indicating that any of the supervisory defendants were aware that the incident was occurring. The Hovanec affidavit establishes that Hovanec was in fact acting on his own. Thus, Hovanec's actions with reference to the decedent were not directed by any of the supervisory defendants, nor did any of the supervisory defendants have actual knowledge of the specific incident prior to its occurrence or immediately thereafter. The Hovanec affidavit declares that radar detection was his only motivation in making contact with Donaldson, and plaintiff has not suggested anything to the contrary; thus, there is absolutely no evidence of a prior hostility likely to bring about a violent encounter. Finally, after this Court inspected In camera the personnel records of both Hovanec and Albright it was clear that there was nothing whatsoever of record to even suggest that either Trooper had a history of complaints by citizens suggesting a violent propensity which would suggest the need for preventive measures on the part of a superior or supervisory official. Accordingly, we find and conclude that there is no basis for liability under § 1983 as to the supervisory officials.
We note that plaintiff has already said that she has abandoned her claims under §§ 1985 and 1986, and has not revoked that statement. We note further that there is no evidence whatsoever of conspiratorial conduct prior to the stop. Hovanec's affidavit states that he alone made the decision to order the stop, and that no one else knew of such decision, much less participated in the decision. There is no evidence to contradict this averment by Hovanec, and plaintiff's decision to abandon her conspiracy claims under §§ 1985 and 1986 further suggests that none of the defendants are liable under those sections.
Finally, plaintiff purports to state a claim under § 1988. However, § 1988 does not create a remedy, but merely complements other statutes that do create federal causes of action, furnishing suitable remedies through principles of state law when the federal law is unsuited or insufficient. See Moor v. County of Alameda, 411 U.S. 693, 702, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973).
Therefore, there is no basis for liability against any of the supervisory defendants under any of the statutes cited, and we will therefore grant the motions of all supervisory defendants for summary judgment.
LIABILITY OF HOVANEC AND ALBRIGHT
Plaintiff has alleged that Hovanec violated decedent's constitutional rights in two respects. First, she asserts that the decision to arrest decedent was an unconstitutional deprivation of decedent's rights; second, she claims that the arrest was effectuated through the use of excessive force.
Plaintiff also asserts that Albright is liable in that he knew, or should have known, that an unconstitutional arrest was taking place, yet he did not act to prevent said unconstitutional conduct. In this regard, we note preliminarily that as to any action under 42 U.S.C. §§ 1985 and 1986, the facts and reasoning as applied to the supervisory defendants also applies to Hovanec and Albright in this situation. The only evidence at all relevant to a charge of conspiracy establishes that Hovanec determined on his own, without even the knowledge, much less the assistance and approval of Albright, that Donaldson was operating his vehicle at an excessive rate of speed and that it was necessary to apprehend him. Thus, there is no basis for § 1985 or § 1986 liability against either trooper, and plaintiff's statement, as yet unrevoked, that she abandoned her § 1985 and § 1986 claims emphasizes the correctness of this conclusion. Also, as stated earlier, § 1988 does not create a cause of action. Therefore, the only basis for liability against either trooper lies under 42 U.S.C. § 1983.
Defendants have, as mentioned, submitted two affidavits by Trooper Hovanec. Initially, plaintiff contended that such evidence was inadmissable because it was barred by the Pennsylvania Dead Man's Act, 28 P.S. § 322. Subsequently, plaintiff reversed her stand, and has waived her right to assert that statute as a basis of incompetence. Regardless of plaintiff's intention to assert or waive her rights under that Act, we hold that it does not apply to this action. Federal Rule of Evidence 601, General Rule of Competency, provides as follows:
"Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law."
In this case, the rule of decision regarding liability of State Police under the federal civil rights acts is clearly one of federal law; therefore, the Pennsylvania Dead Man's Act does not apply. See Sundstrand Corporation v. Sun Chemical Corporation, 553 F.2d 1033, 1051 (7th Cir. 1977), Cert. denied, 434 U.S. 875, 98 S. Ct. 224, 54 L. Ed. 2d 155, 98 S. Ct. 225 (1977), in which the court held that the Illinois Dead Man's Act did not bar testimony in a case brought under the Securities Exchange Act.
Furthermore, Pennsylvania courts have held that the Dead Man's Act is inapplicable to a combined action under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601, Et seq., and the Pennsylvania Survival Act, 20 Pa.C.S.A. § 3371 Et seq., which statutes are analogous to the federal cause of action here alleged and are the basis of the pendent state claims asserted in this case. See Dennick v. Scheiwer, 381 Pa. 200, 113 A.2d 318 (1955). Therefore, we conclude that Hovanec is a competent witness and his affidavits are admissable.
In addition to the affidavits of Hovanec, there are in evidence certain photostatic copies of handwritten notes. These documents are accompanied by an affidavit of Matthew Donaldson, Jr., decedent's son and plaintiff's co-counsel, who has sworn that the handwriting is that of the decedent, and that the photostats are of certain handwritten notes that the affiant found among decedent's personal possessions around the time of death. Defendants have not disputed the authenticity of these documents, and we conclude that these documents are recordings of written statements by decedent relating to the circumstances of the arrest in question.
We shall now examine the evidence of record in the form of the exhibits submitted by all parties and determine the merits of the motions pending. We note at the outset that defendants, Hovanec and Albright, are entitled to a conditional or qualified immunity. See Reese v. Nelson, et al., 598 F.2d 822 (3d Cir. 1979); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975); Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978). See also Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). As a general proposition, the question of qualified immunity of a state official, such as a state trooper, is a matter of factual resolution, but it is clear that the issue need not always be a jury question. See Reese v. Nelson, supra, at page 825. Thus, the Supreme Court in the Procunier case affirmed the entry of summary judgment on the basis of qualified immunity, and the United States Court of Appeals for the Third Circuit affirmed summary judgment in favor of defendants in a § 1983 case on the basis of uncontradicted depositions and affidavits establishing good faith. See Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 715 (3d Cir. 1978). We shall, therefore, examine the evidence to determine if there is any conflict between the affidavits by Hovanec on the one hand and the notes written by decedent on the other hand as such material pertains to the issue of Hovanec's and Albright's qualified immunity. See Reese v. Nelson, et al., supra, at page 825.
In evaluating the good faith defense, we are guided by the principles of Wood v. Strickland, supra, as applied by Princeton Community Phone Book, Inc. v. Bate, supra, at page 711, that governmental officials enjoy "a qualified immunity shielding them against liability when they act in good faith and reasonably believe their actions are constitutional. Stated differently, to be entitled to such immunity, they must act reasonably and without malice." Moreover, it is not necessary to determine if Hovanec and Albright actually violated decedent's constitutional rights, or if the procedures utilized by the State Police at that time were constitutionally deficient. "As Navarette makes clear, the immunity defense should not be rejected if at the time that the act was committed there was no clearly established constitutional right and there was no malicious intention to deprive the plaintiff of a constitutional right or cause him other injury." Reese v. Nelson, et al., supra, at page 826.
Plaintiff, as mentioned, has alleged that Hovanec violated decedent's constitutional rights by executing an invalid arrest and by utilizing excessive force in making the arrest. With regard to the first ground, that the arrest was invalid, plaintiff cites three bases for the allegation. (1) She asserts that the arrest was initially a custodial arrest for a minor traffic violation in a situation where the officer had a simple procedure available as an alternative. Instead of a custodial arrest, Hovanec could have filed the citation with the District Justice for service by mail. Plaintiff is thus asking the Court to hold that a custodial arrest inherently violates the Fourth and Fifth Amendments if alternative criminal process is available to the arresting officer. (2) Plaintiff also contends that there is an issue of fact as to whether Hovanec had probable cause to arrest Donaldson for resisting arrest. Whether Hovanec could validly have arrested Donaldson for speeding or not, the arrest for resisting arrest was a completely separate matter, and as to that charge there was no factual basis. (3) Plaintiff contends that the arrest itself was not to enforce the law, but was the result of Hovanec's objection to Donaldson's language. The motivation of a police officer is a key element to the constitutionality of an arrest. If the arrest is "pretextual", that is, if it appears to be for a traffic violation but is really for an ulterior purpose, such as illegally searching a car, then the arrest is unconstitutional. Here, plaintiff alleges that the arrest was in response to decedent's statement that Hovanec should "take that ticket and clip board and shove them up your ass". Hovanec affidavit, P 10.
Plaintiff contends that since the arrest resulted from a communication that is protected by the First Amendment, plaintiff has proven a valid § 1983 claim, and defendant now has the burden of showing that the arrest would have occurred even without the protected expression.
In addition to these contentions relating to the invalidity of the arrest, plaintiff contends that the arrest was accompanied by excessive force. If a police officer can perform his duties without the use of force at all, then even the use of minimal force is actionable. This question plaintiff again asserts is a jury question.
Against this set of accusations, we examine first the applicable law, then the evidence. The applicable statute is the Vehicle Code, 75 P.S. § 101, Et seq.,
particularly 75 P.S. § 1214:
"s 1214. Limitation of authority for Pennsylvania State Policemen
Such employees of the Commonwealth as are designated Pennsylvania State Policemen are hereby declared to be peace officers, and are hereby given police power and authority throughout the Commonwealth in addition to any other power or authority conferred by law to arrest on view, on Sunday or any other day, when in uniform, without writ, rule, order or process, any person violating any of the provisions of this act.