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March 30, 1981


The opinion of the court was delivered by: HUYETT


The facts of this case taken in the light most favorable to plaintiff are as follows. At approximately 2:45 in the morning of August 2, 1979, an accident occurred in the vicinity of plaintiff's parents' home. *fn1" A car crashed through a utility pole and damaged the lawn and shrubbery of the Frizzel home nearby. Awakened by the sound of the collision, Mr. Frizzel and another neighbor observed a car travelling away from the area of the accident pull into the driveway of plaintiff's parents. Both reported that they did not observe anyone fleeing from the direction of the Curran home.

 Responding to the utility's and Mr. Frizzel's reports of property damage, defendant, a Pennsylvania state trooper, arrived at the accident scene at approximately 8:30. He interviewed Mrs. Frizzel and collected fragments at the scene which he concluded had been shorn from the vehicle that caused the damage.

 At 7:25 on the morning of August 2, 1979, the plaintiff's father had reported that his car had been damaged by some unknown person. Trooper McBreen of the Pennsylvania state police was assigned to investigate that report. At 9:00 the same morning, the defendant contacted Trooper McBreen who told him that a neighbor, a Mr. Mack, reported that at about the time of the accident he saw a car come from the direction of the accident scene and turn into the Curran driveway. Trooper Dural was already aware that Mr. Frizzel had observed the same thing from his conversation with Mrs. Frizzel.

 At about 9:10 Troopers Dural and McBreen went to the Curran home. Defendant compared the fragments that he had gathered at the accident scene to the damage done to the Curran car. The defendant concluded that the Curran car was the same car that had caused the damage reported by the Frizzels.

 Apparently Trooper McBreen was already engaged in conversation with the plaintiff's father when the defendant approached. Plaintiff's father stated that his son had used the car the night before but that he was home by 11:20. According to the plaintiff's father, the defendant stated that he believed that the son had been driving the car and intended to arrest him. The defendant admitted that no eyewitness had placed the plaintiff behind the wheel of the car. Since the defendant admitted that he had not examined the car for evidence that might reveal who the driver was, plaintiff's father offered to preserve the car until tests for evidence of this type might be conducted. The defendant refused this offer as unnecessary. The defendant did not arrest the plaintiff. Sometime later, he did endorse two traffic citations against the plaintiff which in turn led to the issuance of a summons to the plaintiff to appear before a district justice and defend a "summary" criminal charge. The plaintiff did not appear but was represented by counsel. After a hearing, the charges, according to the plaintiff, "were dismissed by (the) District Justice ... acquitting the plaintiff of all charges." Complaint P 10. The plaintiff has not alleged that the basis of the dismissal by the magistrate was a lack of probable cause.

 The plaintiff's father's affidavit also contends that following the accident the defendant attempted to speak with the plaintiff even though he had been told that the plaintiff would only be available if arrangements were made through the plaintiff's attorney. Plaintiff's father also alleges that the defendant said he had decided that the plaintiff was involved in the accident based upon his "feelings." Plaintiff's father states that the defendant's attitude was unprofessional and antagonistic.

 The plaintiff's complaint contains counts based upon § 1983 of Title 42 of the United States Code, malicious prosecution, and intentional infliction of mental distress. *fn2" Plaintiff's § 1983 count, alleging that he was deprived of constitutionally protected rights, is many faceted. First, the plaintiff alleges that he was arrested without probable cause. Second, the plaintiff alleges that because in response to the summons he was forced to retain counsel, the cost of his attorney amounts to a seizure of his property without due process. Thirdly, the plaintiff apparently contends that the issuance of the summons without probable cause violated his rights of procedural due process.

 For reasons stated below, I conclude that the defendant had probable cause to believe that the plaintiff was the driver. Based upon this conclusion, I will grant the defendant's motion.

 Beginning with plaintiff's claim that there was a seizure of his property, I conclude that being forced to incur the cost of legal counsel to defend an action the initiation of which does not itself violate a constitutional right is not a seizure of property within the meaning of the fourth and fourteenth amendments to the United States Constitution. Since I conclude that there was no arrest and there was probable cause, the initiation of an action against the plaintiff did not violate his constitutional rights.

 Turning to the plaintiff's claim based upon his fourth amendment right to be free from seizures of the person, the Supreme Court's observation in Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979), must be borne in mind: "(t)he first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right "secured by the Constitution and laws.' If there has been no such deprivation, the state of mind of the defendant is wholly immaterial." Id. at 140, 99 S. Ct. at 2692.

 The plaintiff contends that the summons compelling him to appear before the magistrate is akin to a seizure of his person. The error in this argument is fundamental. An arrest, by common definition, involves the taking of the person into custody. See Commonwealth v. Brown, 230 Pa.Super. 214, 326 A.2d 906 (1974). It is this consequence, the seizure of the person, which causes the constitutional protections of the fourth amendment to attach. The seizure may be actual or constructive. For example, the Fifth Circuit has held that the fourth amendment is implicated "whenever a police officer accosts an individual and restrains his freedom to walk away." U. S. v. Brunson, 549 F.2d 348, 357 (5th Cir.), cert. denied, 434 U.S. 842, 98 S. Ct. 140, 54 L. Ed. 2d 107 (1977). However, there must be some taking of control or restraint of liberty. A procedure which does not have these consequences does not implicate the fourth amendment rights upon which plaintiff relies. In this case there was no seizure of the plaintiff. There was no confrontation between plaintiff and defendant in which defendant could have restrained plaintiff's freedom. The lack of an arrest justifies a grant of summary judgment against this part of plaintiff's § 1983 claim. However, plaintiff also alleges that legal process was issued against him without probable cause denying him procedural due process. Plaintiff argues that the process which was due him was not to be charged without probable cause. With respect to the definition of probable cause, the Supreme Court has stated:

"The substance of all the definitions' of probable cause "is reasonable ground for belief of guilt. And this "means less than evidence which would justify condemnation' or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (3 L. Ed. 364). Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where "the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.

 Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879 (1949) ...

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