the "under color of state law" deficiency of plaintiff's complaint. To the extent of that identity the court will reject the defendant's arguments. (See discussion appearing above with respect to Kahle's defense). The more compelling consideration before the court in assessing the defendant's first challenge to the complaint is whether private persons who are private clients of a District Attorney in his private law practice can be said to have acted under the color of state law, taking the allegations of plaintiff's complaint as true, when it has been alleged that their lawyer -- the District Attorney -- has acted under color of state law in denying plaintiff a constitutional right. The defendants as private parties are not presumed to have acted under color of state law by retaining the services of a lawyer who happens also to be a District Attorney. Further, the defendants cannot be said to have acted under "color of state law" under Section 1983 when a lawyer they retain, who happens to be a District Attorney, undertakes a prosecution in that capacity and in his capacity as private attorney such that his own actions being under color of state law might expose him to personal liability. Purely private action is not cognizable under Section 1983. See Coggins v. Carpenter, supra, 468 F. Supp. at 282.
A private person, however, even when acting in a private capacity can be held liable under Section 1983 if he acts in concert with a public official who acts "under color of state law." See e.g., Black v. Bayer, 672 F.2d 309 (3d Cir. 1982); Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977); Celano v. Celano, 537 F. Supp. 690 (E.D. Pa. 1982); Raitport v. Provident National Bank, 451 F. Supp. 522 (E.D. Pa. 1978); Meyer v. Curran, 397 F. Supp. 512 (E.D. Pa. 1975); Beaver v. Borough of Johnsonburg, 375 F. Supp. 326 (W.D. Pa. 1974).
At paragraph 14 of the complaint, plaintiff alleges that "the Defendants were conspirators engaged in a scheme and conspiracy designed and intended to deny and deprive him of rights guaranteed . . . under the Constitution and laws of the United States. . . ." If plaintiff is able to prove facts to comport with his allegations they would establish that the defendant co-administrators acted under color of state law. Accordingly, the defendant co-administrators' challenge to plaintiff's claim based on a failure to meet the "under color of law" jurisdictional requirement of Section 1983 must be rejected.
In their second challenge to the complaint, the defendant co-administrators argue that plaintiff has failed to allege the deprivation of any federally protected right. We consider this line of argument first in the nature of a challenge to the form of the pleading. Plaintiff's claims can be separated for purposes of considering the sufficiency of his pleading between those violations of specific constitutional amendments and the asserted claim under Section 1983.
As for claims under the First, Fourth, Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments, we conclude that plaintiff has failed to state a claim upon which relief can be granted. Plaintiff's complaint is drafted in unified form and states at paragraph 4 that the action arises under " 42 U.S.C.A. §§ 1343, 1983 and 1985 (sic)." Plaintiff has literally failed to state a claim under the foregoing amendments both in the form of his pleadings and in the allegations used to support each alleged constitutional violation. This court notes a distinction between an alleged deprivation of rights guaranteed by various amendments to the constitution in a claim under various civil rights statutes and a claim based directly on the amendments themselves. See, e.g. Coggins v. McQueen, 447 F. Supp. 960 (E.D. Pa. 1978).
Furthermore, plaintiff's claims under various amendments to the constitution will not be sustained where the pleadings are drafted in conclusory fashion alleging simply that the conduct of the defendant has violated the rights of the plaintiff guaranteed by the constitution. See, e.g. Cohen v. Illinois Institute of Technology, 581 F.2d 658 (7th Cir. 1978), cert. denied, 439 U.S. 1135, 59 L. Ed. 2d 97, 99 S. Ct. 1058 (1979); Sprague v. Fitzpatrick, 412 F. Supp. 910 (E.D. Pa. 1976), affd. 546 F.2d 560 (3rd Cir. 1976), cert. denied 431 U.S. 937, 53 L. Ed. 2d 255, 97 S. Ct. 2649 (1977); Williams v. Patton, 410 F. Supp. 1 (E.D. Pa. 1976).
As for plaintiff's Section 1983 claim, we find that the allegation of the complaint sets forth facts sufficient to support the conclusions contained therein. In so ruling, this court is mindful that the Third Circuit maintains the almost singular distinction of requiring fact pleading in civil rights actions. 2A MOORE, Moore's Federal Practice para. 8.17[4.-1] (2d ed. 1982).
The current authority is Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978). In Hall, the Third Circuit held that a civil rights complaint was sufficient when it alleged the nature of the conduct violating plaintiff's rights, the time and place of the action, and the parties responsible for the conduct. Id. at 89. The court determined that the pleadings complied with specificity requirements enunciated in Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-923 (3d Cir. 1976). See also Esser v. Weller, 467 F.2d 949 (3d Cir. 1972); Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 (1970).
Plaintiff's claim states that a criminal prosecution was initiated as a pretext to assure the return of certain documents and to coerce the plaintiff into abandoning other legal rights in which he had a legitimate claim, (paragraph 12); that the various acts occurred on or about April 30, May 1, and September 14, 1981 in McKean County (paragraph 8-11); that the persons responsible were the alleged co-conspirators named in the complaint (paragraph 14); and that the foregoing acts were accomplished under color of state law (paragraph 13). We find these averments sufficient to satisfy the Hall-Rotolo test. Hence, any challenge to the form of the pleading of the Section 1983 claim must be rejected.
The defendant co-administrators further contend that plaintiff has failed to allege the deprivation of any federally protected right. We need now only consider this argument as it relates to the surviving Section 1983 claim. We find that plaintiff has alleged sufficient facts to indicate that the defendants' conduct subjected him to the deprivation of a constitutional right. Defendants argue that there is no basis for a claim under Section 1983 because no claim can be sustained under any of the Constitutional Amendments. To this end the defendants argue that no federal right is implicated under the Fourth, Fifth and Fourteenth Amendments since plaintiff was never arrested or otherwise restrained of his liberty.
In part, counsel relies on the holding in Curran v. Dural, 512 F. Supp. 699 (E.D. Pa. 1981) which concerned a Fourth Amendment claim underlying a claim under Section 1983. In Curran Judge Huyett dismissed that portion of the plaintiff's Section 1983 claim that relied on the Fourth Amendment violation because the evidence indicated there was no action tantamount to a seizure of the plaintiff. Curran, 512 F. Supp. at 703. Defendants rely on Curran as authority for the proposition that a claim under the Fifth and Fourteenth Amendments is similarly defective if the plaintiff is never restrained in his liberty. We find the application of Curran to the present case problematic in three respects. First, plaintiff does allege a deprivation of liberty. Second, however inartfully drafted, plaintiff also alleges the use of process to achieve an illegitimate or extortionate objective which resulted in the surrender of property interests and this, by definition, is a denial of procedural due process. Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977). And third, the conclusion reached by Judge Huyett comes in the context of a motion for summary judgment and the development of evidentiary matters to resolve the disputed issues between the parties. This is not the situation in the case sub judice where at this juncture we are to take the averments of plaintiff's complaint as true and, moreover, accord a measure of deference to any set of facts that might support the allegations. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). We find that the Section 1983 claim contains averments which implicate constitutional rights and accordingly we will reject this aspect of the defendant co-administrators' Motion to Dismiss.
B. Abuse of Process.
The defendants final argument seeks dismissal of the Section 1983 claim based on the plaintiff's alleged failure to set forth a valid cause of action for the underlying state torts of malicious prosecution or abuse of process.
We note that while a claim under Section 1983 might be premised on factual allegations also giving rise to a state law claim, the survival of a federal cause of action does not turn on the adequacy of the averments needed to sustain the corresponding state tort.
Even if we accept defendants' contention that the elements of an underlying state tort must be established to sustain this Section 1983 claim, we find that the plaintiff has set forth the elements of a valid cause of action for the state tort of abuse of process.
Pennsylvania cases have long recognized a distinction between the torts of malicious prosecution and abuse of process. An abuse of process generally involves a situation where a party has employed legal process for a purpose not intended by the law. See Mayer v. Walter, 64 Pa. 283 (1870). Accordingly, when process is used to effect an extortionate demand, or to cause the surrender of a legal right, or is used in any other way not so intended by the proper use of that process, a cause of action for abuse of process can be maintained. Moreover, as distinguished from the elements comprising a suit in malicious prosecution, the elements of abuse of process do not involve an assessment of probable cause nor do they require favorable termination of the litigation in the aggrieved party's favor.
The defendants acknowledge the distinction between the state torts of malicious prosecution and abuse of process but then proceed to frame their argument largely in terms of plaintiff's failure to satisfy the elements of malicious prosecution. The fact that the underlying criminal prosecution ended in a nolle prosequi and that the plaintiff may not have prevailed in the prior action is not fatal to a cause of action for abuse of process. See, Blumenfeld v. R.M. Shoemaker Co., 286 Pa. Super. Ct. 540, 429 A.2d 654 (1981). The theory of plaintiff's recovery under Section 1983 is more similar to the underlying state tort of abuse of process since plaintiff alleges that the issuance of criminal process against him was a pretext to leverage extortionate demands.
Defendants challenge the sufficiency of a claim for abuse of process when the complaint fails to allege an arrest or seizure. Pennsylvania courts have held that the "English Rule" is still applicable to abuse of process actions and requires the plaintiff to prove either an arrest of the person or seizure of property in order to state a cause of action for malicious use of civil process. Sheridan v. Fox, 531 F. Supp. 151 (E.D. Pa. 1982). Pennsylvania statutes have removed the application of the English Rule from malicious use of process actions. See 42 P.C.S.A. § 8351(b). The defendants here rely upon Blumenfeld v. R.M. Shoemaker Co. in seeking a dismissal of plaintiff's action. 286 Pa. Super 540, 429 A.2d 654 (1981). Blumenfeld arose from a lawsuit brought by a construction company in equity for an alleged breach of an oral joint venture argument. The company had filed a praecipe to have the complaint indexed against the appellee's property. The court struck the lis pendens, and, finding that an adequate remedy existed at law, transferred the case to the law side of the court. Judgment was eventually entered for the company. Thereafter, the appellees brought an action in trespass for malicious use of process and abuse of process. They prevailed in the trial court. The Superior Court reversed and held, inter alia, that the judgment could not stand because the appellees had failed to allege or prove a seizure of their property in accordance with the English Rule. The Superior Court disagreed with the lower court that the filing of a "lis pendens constituted a sufficient interference with appellee's property to sustain their actions." 429 A. 2d at 656. The court in Blumenfeld cites a number of cases in which writ process has affected a litigant's property interest but did not amount to a seizure of property. 429 A.2d at 657.
We now consider whether plaintiff's averments, taken as true, satisfy the arrest or seizure requirement. The defendants assert the following:
it must be stressed that the Complaint nowhere alleges that the plaintiff was arrested. In fact, no arrest of the plaintiff was ever made. The private criminal complaint filed against plaintiff merely resulted in the issuance of a summons to plaintiffs to appear before a District Justice and defend the misdemeanor charge.
We agree that plaintiff has not specifically alleged an arrest, however, he has alleged a deprivation of liberty. The court will not now conduct a factual inquiry to assess this allegation. In addition, as in Blumenfeld we also consider whether the defendants' alleged acts might constitute a seizure of the plaintiff's property.
Plaintiff's allegations respecting a seizure of his property are as follows:
. . . On September 14, 1981, on condition that Mr. Mines deliver the papers sought by Mr. Kahle to Mr. Mines' attorney, Mr. Kahle agreed to nol. pros. the charges. (See Plaintiff's Complaint para. 11).