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HORNE v. FARRELL

January 28, 1983

JASON HORNE, Plaintiff
v.
GEORGE A. FARRELL, Constable, et al., Defendants



The opinion of the court was delivered by: RAMBO

 Jason Horne has filed suit against the five defendants because of an incident which occurred on February 18, 1982. Horne was present in the offices of Pennsylvania District Justice Paul H. Hardy to defend an action instituted against him by Commercial Credit Plan Consumer Discount Company. Apparently upon Horne's arrival at Hardy's office, he was informed of a delay in the hearing and was requested or was directed by Constable George A. Farrell to enter into a closed room. Also in the room was a representative or agent of Commercial Credit. The identity of this third person is disputed by the parties. The name "Gardner" is used in the pleadings and brief. As a result of what was said and done in the closed room, Horne signed an agreement admitting liability and agreeing to pay the debt in full.

 The plaintiff alleges that Constable Farrell threatened and coerced him into signing the agreement. Constable Farrell was wearing a weapon which plaintiff claims was very conspicuous.

 District Justice Hardy became part of the activity when he signed or had his signature affixed to the disposition portion of the trespass and assumpsit complaint. Judgment was entered in favor of Commercial Credit in the amount which was "agreed to" by Horne in the closed room.

 Attorney Krafsig was counsel for Commercial Credit in the suit on the debt. His involvement was in filing the complaint against Horne and his receiving or his office receiving two subsequent payments on the debt.

 The plaintiff alleges causes of action against Farrell under the equal protection clause of the fourteenth amendment; the due process clause of the fourteenth amendment; Title 42 of the United States Code, § 1983; Title 42 of the United States Code, § 1985; the Fair Debt Collection Practices Act, Title 15 of the United States Code, § 1692; false imprisonment; abuse of process; and intentional infliction of emotional distress. The causes of action alleged against the remaining defendants are violations of the equal protection and due process clauses of the fourteenth amendment; Title 42 of the United States Code §§ 1983 and 1985, and the Fair Debt Collection Practices Act.

 The defendants have all filed motions to dismiss for failure to state a claim upon which relief can be granted. Federal Rule of Civil Procedure 12(b) (6). The standard in evaluating a motion under Rule 12(b) (6) was set out in Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The Supreme Court said:

 
in appraising the sufficiency of the complaint we follow, of course, the accepted 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. Id. at 45-46.

 The plaintiff has alleged violations of the due process and equal protection clauses of the fourteenth amendment and sections 1983 and 1985 of Title 42 United States Code. The purpose of the Civil Rights Act of 1871, from which § 1983 is derived, is made clear from the title of the legislation: "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes." 17 Stat. 13 (1871). See Monroe v. Pape, 365 U.S. 167, 171, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961) overruled on other grounds Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The plaintiff would have this court allow him both a cause of action for damages under § 1983 and an implied cause of action under the fourteenth amendment via 28 U.S.C. § 1331. The action directly under the fourteenth amendment would be analogous to the cause of action implied in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (implied under the fourth amendment); Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979) (implied under the fifth amendment); and Carlson v. Green, 446 U.S. 14, 64 L. Ed. 2d 15, 100 S. Ct. 1468 (1980) (implied under the eighth amendment).

 The courts in the Fifth Circuit have considered on a number of occasions the issue of implying a cause of action from the fourteenth amendment. See Strong v. Demopolis City Board of Education, 515 F. Supp. 730, 732 n.1 (S.D. Ala. 1981). The results arrived at have been contradictory. Judge Hand, in an extensive footnote in Strong, explains the difficulty. Id. Judge Hand concludes by saying:

 
Analytically, the sounder approach would be not to imply a cause of action under the fourteenth amendment. Congress has provided, in the body of § 1983, a remedy to plaintiffs who are wronged by "persons" acting under "color of state law" where the plaintiff has a right, privilege, or immunity secured by the Constitution or federal laws which is infringed. Section 1983 is coextensive in scope with the fourteenth amendment. By contrast, no specific legislation provides aggrieved plaintiffs with a remedy when protections of the Bill of Rights are infringed by federal officers. Thus, to avoid the predicament of extending a right where no remedy exists . . . a cause of action must be implied against federal officials. Id. See Hearth, Inc. v. Department of Public Welfare, 612 F.2d 981, 982 (5th Cir. 1980).

 The District Court for the Eastern District of Pennsylvania appears to be following the line of analysis suggested by Judge Hand. In Stockton v. Weiner, No. 81-5328 (E.D. Pa. Aug. 24, 1982), Judge Huyett says:

 
In addition to her statutory claims brought under section 1983, plaintiff also asserts causes of action against all three defendants based directly on the first, fourth, fifth and fourteenth amendments. It must be noted that plaintiff's claims under the first, fourth and fifth amendments are cognizable only through the application of the fourteenth. While the Third Circuit has not yet decided the question, the district courts in this Circuit have held that where a plaintiff has stated a claim under the federal civil rights statutes sufficient to vindicate his constitutional rights, there is no need to imply a constitutional cause of action directly under the fourteenth amendment. See, e.g., DiGiovanni v. City of Philadelphia, 531 F. Supp. 141, 144 (E.D. Pa. 1982) (citations omitted). These claims therefore will be dismissed. Id. at 3.

 In the present case, Horne's rights can be adequately vindicated under § 1983. There is no need to imply a constitutional cause of action directly under the fourteenth amendment. The claims based directly on the fourteenth amendment will be dismissed.

 The plaintiff alleges that the defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692d and 1692e. Both of these sections relate to the activities of a "debt collector." The term "debt collector" is defined in 15 U.S.C. §§ 1692a(6). The subsection says:

 
(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (G) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6) [ 15 USCS § 1692f(6)], such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.

 Once the primary definition is established the statute goes on to exclude certain types of persons from the definition. 15 U.S.C. 1692a(6) (A)-(G). One of the exclusions is for "(F) any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client;. . . ." John J. Krafsig, Esquire, the attorney for Commercial Credit, is alleged to have performed two acts related to this controversy. First, he filed the complaint in assumpsit on behalf of Commercial Credit and against Horne. Second, he or his office received payments which Horne made under the judgment. Krafsig was not present in the closed room nor was he even in the District Judge's office on February 18, 1982. Nothing is alleged in the complaint which would link Krafsig with any alleged violations of Horne's rights. The bare allegation of some connection with Farrell is not sufficient. Hickey v. New Castle County, 428 F. Supp. 606, 611 (D. Del. 1977). The complaint indicates no facts that would take Krafsig out of the exception granted by § 1692a(6) (F). The claim under the Fair Debt Collection Practices Act will be dismissed as it relates to Krafsig.

 A claim under the Fair Debt Collection Practices Act is also brought against the agent of Commercial Credit who was present in the closed room. The agent may or may not have been defendant Gardner, but apparently the person is admitted by Commercial Credit to be its agent. This agent accompanied Farrell and Horne into the room.

 Section 1692a(6) (A) of Title 15 excludes from the definition of debt collector "(A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;. . . ." The agent was present at the District Justice's office prepared to participate in a proceeding before District Justice Hardy. The complaint does not allege that Horne was confused as to whom the agent represented. The agent may have been party to the alleged actions of Farrell, but that is not enough to take him out of the exclusion in § 1692a(6) (A). Since the agent is excluded from the definition of debt collector, the claim against "Gardner" under the Fair Debt Collection Practices Act will be dismissed.

 The plaintiff's argument as to Farrell is that he used a name other than the creditor to collect a debt owed to Commercial Credit, therefore he is a "debt ...


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