Plaintiff, one John G. Arch, a member of the Allegheny County Bar, seeks in this litigation to transform a squabble over attorneys' fees into a "federal case" of constitutional dimension.
Plaintiff was originally retained by Daniel J. and Marsha L. Stewart to represent their daughter Rebecca who was injured when part of a dead tree fell on her. He filed suit at No. G.D. 81-7147 in the Court of Common Pleas of Allegheny County on behalf of Rebecca but when inquiring of the Stewarts the name of a neighbor to be deposed as a witness they advised him that they desired other counsel and subsequently retained the firm of defendant Louis M. Tarasi, Jr.
When Arch and Tarasi could not agree on how the 40% contingent fee was to be divided, Arch sued the Stewarts for the full fee at G.D. 72-6927 in the Court of Common Pleas of Allegheny County. Tarasi's firm defended the Stewarts in that case, and filed successive preliminary objections which were sustained first by Judge Papadakos, then by Judge Doyle; and finally Judge Weir dismissed additional preliminary objections and ordered the Stewarts to file an answer. For some reason they failed to do so and Arch obtained a default judgment. Tarasi's firm filed a motion to open the judgment and let the defendants in to a defence. This motion was granted by Judge Papadakos.
Arch then filed suit in the case at bar against Judge Papadakos and Tarasi and his firm. By this Court's order of November 18, 1983, the case was dismissed as against Judge Papadakos on grounds of judicial immunity. (An appeal is pending from this dismissal). Tarasi and his firm have now filed a motion to dismiss. Since plaintiff has filed an affidavit in opposition to the motion, and has also attached copies of newspaper articles to his complaint, we may to the extent necessary, if any, treat the pending motion as one for summary judgment.
Plaintiff's complaint contains five counts, charging respectively violation of 42 U.S.C. § 1983 (subjecting to deprivation of rights secured by the Constitution and laws of the United States: to wit, Arch's fee and the default judgment therefor); violation of 42 U.S.C. § 1985 (conspiracy under the "night rider" Act); requesting injunction against participation by Papadakos in cases involving Arch; slander under State law; and counsel fees.
Considering these contentions in the order of their difficulty, and disposing of the easiest ones first, we find for defendants on Count V, since we do not find plaintiff to be a prevailing party who might in that capacity be awarded attorney's fees by statute in civil rights cases; on Count III, as moot, since Judge Papadakos has been already dismissed as a defendant,
and the propriety of his sitting or recusing is a matter of State law or State judicial administration, not presenting issues cognizable in this Court; on Count IV as a matter of purely State law to which similar reasoning applies, and falling with the federal claims to which it is "pendent" in the discretion of the Court [ United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)];
and Count II, for lack of allegations of racial or class-based invidious discrimination [ Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); DeFrank v. Pawlosky, 480 F. Supp. 115, 118 (W.D. Pa. 1979), aff'd 633 F.2d 209 (Table)].
Count I requires more attentive scrutiny. 42 U.S.C. § 1983 provides:
"Every person who, under color of [State law] subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."