The opinion of the court was delivered by: GILES
Plaintiff, Debra Ann Kradzinski Celano, has filed suit against her former husband, Joseph A. Celano and his attorney, Robert M. John, Esquire, under 42 U.S.C.A. § 1983,
alleging, inter alia, that Celano and John, the attorney representing her husband in the couple's custody and visitation rights dispute, were responsible for a series of misrepresentations made to the presiding state court judge, as a result of which she was wrongfully incarcerated. John has filed a motion to dismiss pursuant to Fed.R.Civ.Pro. 12(b)(6), contending that the Amended Complaint fails to state a cause of action against him and that this court lacks subject-matter jurisdiction because plaintiff's incarceration was not effected under color of state law as required by section 1983. Since materials outside the pleadings have been submitted by both parties, I must treat defendant's motion to dismiss as one for summary judgment. Fed.R.Civ.Pro. 12(b). For the reasons stated below, the motion will be granted.
Fed.R.Civ.Pro. 56(c) provides that summary judgment may be granted whenever judgment is appropriate as a matter of law and there exists no genuine issue of material fact. In moving for summary judgment, defendant John has the burden of showing the absence of a genuine issue as to a material fact, and for this purpose the documents considered outside the pleadings must be considered in the light most favorable to plaintiff, as the opposing party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). Once the moving party sustains its burden, however, plaintiff must come forward with opposing evidentiary matter showing the existence of a disputed issue of material fact. Id. The undisputed facts can be gleaned from the attachments to plaintiff's Amended Complaint and the transcript of the hearing held before Judge Moss on June 3, 1980, to which both parties refer.
Plaintiff and her husband, Joseph Anthony Celano, (hereinafter "Mr. Celano") separated in November, 1978. Plaintiff retained custody of the couple's two children, subject to her husband's visitation rights. Early in 1979, Mr. Celano filed a petition for visitation with the Court of Common Pleas of Montgomery County, Pennsylvania. A hearing was held before the late Honorable Milton O. Moss on April 11, 1979 at which the parties agreed upon a temporary visitation schedule. Mr. Celano was represented at the hearing by the defendant attorney, Robert M. John, Esquire, (hereinafter "John").
On August 13, 1979, Judge Moss received a letter from Mr. Celano which stated that plaintiff was not complying with the agreed visitation order. In response to this letter, a second hearing was scheduled on September 18, 1979, attended by plaintiff, Mr. Celano, and John, at which the visitation order was again modified. On October 20, 1979, Mr. Celano wrote to Judge Moss stating that he had been denied visitation rights under the modified order. Judge Moss responded to this letter on October 25, 1979 by referring Mr. Celano to his attorney. Mr. Celano had a brief verbal contact with Judge Moss in December, 1979, when as a parking attendant, Mr. Celano approached the Judge about plaintiff's denial of his visitation rights as the Judge was leaving a dinner party. Judge Moss told him he could not discuss the matter and referred him to his attorney. Mr. Celano sent a third letter to the Judge on January 14, 1980 complaining of violations of the court order.
As a result of that letter, John contacted the Judge and requested a hearing to determine whether plaintiff was in fact obstructing Mr. Celano's visitation rights. The court sent a copy of the order scheduling the hearing on January 24, 1980 to plaintiff at 20 Harcourt Lane, Horsham, Pennsylvania. It was returned to Judge Moss, "addressee unknown." Plaintiff did not appear at the hearing. Allegedly she never received notice of the hearing because the order was "misaddressed" to plaintiff at 20 Harcourt Lane, Horsham, Pa. instead of 20 Harcourt Lane, Hatboro, Pa. While plaintiff's complaint asserts that Mr. Celano and John intentionally supplied the court with the wrong address, there is no allegation that Judge Moss knew it to be erroneous.
Various statements were made by John at the January 24th hearing that plaintiff was, in fact, present at the Horsham address and was deliberately concealing herself within to avoid service of notice and to prevent Mr. Celano from exercising his visitation rights. Judge Moss' response to the situation was to direct that a show cause order issue and that a contempt hearing be held three days after personal service. On March 17, 1980, pursuant to a contempt petition filed by John on behalf of Mr. Celano, Judge Moss signed an order directing plaintiff to show cause why she should not be held in contempt. John's Petition again listed plaintiff's address as 20 Harcourt Lane, Horsham, Pennsylvania. Plaintiff claims that she never was served because of this improper address.
On April 8, 1980, Mr. Celano left a message with the Judge's secretary that the police had been told he was not allowed to see his children. Mr. Celano inquired of the secretary whether a bench warrant could be issued. Mr. Celano had no contact with Judge Moss during the April 8 visit. Prior thereto, Judge Moss had been called by Captain Outland of the Horsham Police Department regarding problems of enforcing the Judge's visitation order. Judge Moss told Captain Outland that the matter was being litigated and he was attempting to see if plaintiff would respond to service of the rule to show cause.
Over a month later, on May 19, 1980, based on a sworn petition filed by John on or about the same date, Judge Moss issued a bench warrant for plaintiff's arrest. The petition represented plaintiff's presence at the Horsham address. It contained representations regarding plaintiff's conduct, attitude, and availability, plaintiff's repeated refusals to provide visitation in violation of the court order, counsel's inability to effect service of the petition for contempt upon plaintiff, and plaintiff's past conduct in attempting to avoid service of process. In addition, affidavits of two Horsham Township police officers were attached, stating that the officers had been called by Mr. Celano to 20 Harcourt Lane, Horsham, Pennsylvania, on occasions when plaintiff had refused to grant Mr. Celano visitation rights and that she continued to defy the court order in their presence, even though she was told by them that failure to comply could result in her arrest. One officer's affidavit asserted that in February, 1980, when told of the court order, plaintiff stated to him "that she would never give her babies to the father." Affidavit of Richard Carey. The same police officer told Mr. Celano that he would have to see his lawyer or Judge Moss to try to get an arrest warrant for his wife. At this point, plaintiff was not represented by any counsel of record and had not been in contact with the court, either personally or through counsel, since her appearance at the September 18, 1979 hearing.
Judge Moss, subsequent to issuance of the bench warrant, received letters from John and from Alfred O. Breinig, Jr., Esquire, who represented himself as plaintiff's counsel, indicating that a tentative visitation agreement had been reached. John wrote that he would not oppose either lifting or holding in abeyance of the bench warrant, if, among other things, Breinig would enter his appearance, accept service of the rule to show cause and appear at a hearing on the contempt petition to be scheduled by agreement of counsel. As of that date, Breinig did not promptly enter his appearance or accept service. Judge Moss stated on the record that the bench warrant continued in effect because Breinig had not entered his appearance and because he felt he could not rely upon the letter representations in view of plaintiff's past actions in defiance of a valid existing order. Plaintiff was taken into custody on June 2, 1980, and remained in custody until the following day. As of that time, Mr. Breinig still had not entered his appearance. On June 3, 1980, plaintiff was granted a hearing at which time Judge Moss set forth on the record the events which led up to plaintiff's arrest. He again modified the visitation order. Mr. Breinig entered his appearance for plaintiff at the hearing.
In Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), the Supreme Court described the plaintiff's responsibility in a section 1983 action brought against a private party:
The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulations, custom, or usage, of any State or ...