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BANGHART v. SUN OIL CO.

June 4, 1982

Thomas BANGHART
v.
SUN OIL COMPANY OF PENNSYLVANIA, Joseph A. Damico, Jr., Esq., Edward J. Carney, Jr., Esq., Mor, Inc. (Dave Reese Oldsmobile), Stanley Zubriski, Paul Stromberg, Joseph Love, James McPartland, Sheriff of Delaware County, John W. Taylor, Jr., Upper Darby Police Department and John Devlin



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Plaintiff Thomas Banghart (plaintiff) brought this civil rights action for damages and declaratory and injunctive relief against the following defendants: (1) Sun Oil Company of Pennsylvania (Sun); (2) Joseph A. Damico, Jr. (Damico), attorney for Sun; (3) Edward J. Carney, Jr. (Carney), attorney for Sun; (4) the Upper Darby Police Department; (5) John Devlin (Devlin), individually and in his capacity as Chief of the Upper Darby Police Department; (6) Stanley Zubriski (Zubriski), individually and in his capacity as an Upper Darby police officer; (7) Paul Stromberg (Stromberg), individually and in his capacity as an Upper Darby police officer; (8) the Sheriff of Delaware County; (9) John W. Taylor, Jr. (Taylor), individually and in his capacity as Sheriff of Delaware County; (10) Joseph Love (Love), individually and in his capacity as Deputy Sheriff of Delaware County; (11) James McPartland (McPartland), individually and in his capacity as Deputy Sheriff of Delaware County; and (12) Mor, Inc. (Mor). In his complaint, plaintiff alleges claims against each of the defendants based upon: (1) 42 U.S.C. §§ 1983 and 1985(3); and (2) the Fifth and Fourteenth Amendments to the United States Constitution. The complaint alleges no state law claims. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(3).

 The facts, as alleged in the complaint and as pertinent to this opinion, are as follows: Plaintiff leased a gasoline service station from defendant Sun under a written lease dated June 1, 1971. Upon the lease's expiration, plaintiff did not vacate the premises and Sun filed a complaint in ejectment in Delaware County, Pennsylvania. On November 24, 1976, the Court of Common Pleas of Delaware County entered an order awarding Sun possession of the premises. Five days later, on November 29, 1976, Sun obtained a writ of possession pursuant to the order of the Court of Common Pleas of Delaware County. On December 1, 1976, defendant Deputy Sheriffs Love and McPartland, defendant Upper Darby police officers Zubriski and Stromberg and defendant Damico served the plaintiff with the writ of possession and took possession of the premises. On that same day, plaintiff mailed a notice of appeal to the Superior Court of Pennsylvania and petitioned the Court of Common Pleas for allowance of supersedeas. A hearing was held before the same judge who issued the November 24 order awarding possession to Sun, and on December 9, 1976 the supersedeas was granted. The court's order provided in relevant part:

 
The Appeal taken by the Appellant, Thomas E. Banghart, in the above-entitled matter shall operate as a supersedeas provided that a bond be entered by the Appellant in the sum of thirty thousand ($ 30,000.00) dollars with security to be approved by the Court.
 
It is Further ORDERED and DECREED that the Writ of Possession heretofore issued in the above-captioned matter is hereby set aside provided the bond be entered as required.

 Sun immediately petitioned the Superior Court to grant a special supersedeas as to the supersedeas granted by the Court of Common Pleas and on December 10, 1976, the special supersedeas was granted. Plaintiff then petitioned the Supreme Court of Pennsylvania to review the relief granted by the Superior Court and by order dated December 27, 1976, the Supreme Court reinstated the supersedeas granted by the Court of Common Pleas and reversed the supersedeas granted by the Superior Court and ordered that the status quo of November 24, 1976 be maintained. The Court's order provided in relevant part:

 
Application granted. The order of the Court of Common Pleas of Delaware County granting a supersedeas is reinstated and the order of the Superior Court in granting supersedeas is reversed.

 Sun petitioned the Supreme Court for reargument as to the December 27 order and on January 5, 1977, the petition was denied. Although the Supreme Court's December 27 order granted the plaintiff's prayer that the original supersedeas be reinstated and that the status quo of November 24, 1976 be maintained and although the Supreme Court had not yet ruled on Sun's application for reargument as to that order, Sun, on December 29, 1976, made settlement on the sale of the premises in question and transferred title to defendant Mor.

 On January 11, 1977, plaintiff entered a supersedeas bond in the amount required by the December 9 order of the Court of Common Pleas. Plaintiff then petitioned the Court of Common Pleas to order defendants Sun and Mor to return possession of the premises to him or be held in contempt. By order dated June 27, 1977, the Court of Common Pleas dismissed plaintiff's petition. Plaintiff then petitioned the Supreme Court for relief from the June 17 order and the Supreme Court, sua sponte, set the matter down for argument. On June 2, 1978, the Supreme Court reversed the June 27 order of the Court of Common Pleas, stayed the December 1, 1976 execution in favor of Sun, and ordered that the status quo of November 24, 1976 be reinstated pending the outcome of plaintiff's appeal on the merits of the ejectment action. On August 21, 1978, the Court of Common Pleas ordered Sun and Mor to deliver possession of the premises to plaintiff within thirty days. Sun appealed to the Superior Court and by order dated September 25, 1978, the Superior Court vacated the initial November 24, 1976 order of the Court of Common Pleas and remanded the case to the Common Pleas Court for consideration in light of Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978). The Common Pleas Court proceeded to trial in accordance with Atlantic Richfield, supra, and on February 8, 1979, denied exceptions to its verdict in favor of Sun. Plaintiff appealed to the Superior Court and the matter is presently awaiting argument before that court.

 The basis of plaintiff's civil rights claim is that all the defendants, in executing on the writ of possession obtained pursuant to the order of the Delaware County Court of Common Pleas, conspired to obtain the subject premises in disregard of a "well-established custom, usage and practice in Delaware County and the surrounding counties to permit a defendant from ten to thirty days to remove his personal property from premises and/or to File an Appeal and a Petition For a Supersedeas prior to the execution of the Writ of Possession and in further disregard of the Pennsylvania Rules of Civil Procedure." (Complaint P 1 and P 40).

 Before turning to the issues raised by the defendants' motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), this Court notes preliminarily that, in ruling upon a motion to dismiss for failure to state a claim upon which relief can be granted, a court must accept as true all well-pleaded allegations of the complaint, construing them in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). In addition, this Court is mindful of the well-established rule that a complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) (footnote omitted).

 At the outset, we deal with plaintiff's claim under 42 U.S.C. § 1985(3). All the defendants have moved to dismiss plaintiff's § 1985(3) claim pursuant to Fed.R.Civ.P. 12(b)(6). This Court has concluded that plaintiff's § 1985(3) claim must be dismissed because no class-based discriminatory animus has or could be pleaded to satisfy the requirements of Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971), or its progeny in this Circuit.

 Section 1985(3), in part, forbids conspiracies entered into "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws...." The Supreme Court has interpreted this language to mean that "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, supra, 403 U.S. at 102, 91 S. Ct. at 1798 (footnote omitted). In his memorandum of law in opposition to defendants' motion to dismiss, plaintiff has argued that he is a member of that class of persons ...


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