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LACEY v. BOROUGH OF DARBY

September 20, 1985

THOMAS J. LACEY; ROBERT DUDASH; EDWARD C. SILVERSTEIN and THE COMMITTEE TO RE-ELECT THOMAS J. LACEY
v.
THE BOROUGH OF DARBY, PA.; THE HONORABLE LOUIS SARAULLO, Mayor of the Borough of Darby; THE POLICE DEPARTMENT OF THE BOROUGH OF DARBY, PA.



The opinion of the court was delivered by: LUONGO

 I. Facts and Contentions

 Certain facts are not in dispute. In 1983, plaintiff Thomas J. Lacey was seeking reelection as a District Justice for the Boroughs of Darby and Colwyn. Lacey and members of his reelection committee requested and received permission from the mayor of Darby, Louis J. Saraullo, to use sound equipment during the spring primary campaign. Shortly before the November 8, 1983 election Robert Dudash and Edward Harkin, members of the Committee to Re-Elect Thomas J. Lacey, again used sound equipment to play music and broadcast speeches. They were stopped by Darby police officer Dominic Squillace.

 Plaintiffs' allegations concerning what happened next are set forth in their complaint, the depositions of Dudash, Harkin and Thomas Lacey, and an affidavit submitted by Harkin. According to plaintiffs, Officer Squillace told them they could not use sound equipment because they did not have a permit. Plaintiffs claim the mayor had said they did not need a permit. They therefore believed they had a right to use the equipment and refused to stop. Plaintiffs claim the officer then arrested Dudash, Harkin and four children who were with them.

 Plaintiffs further submit that Lieutenant Robert Smythe, Darby's chief of police, told plaintiffs' counsel that the police were acting under orders from the mayor. The parties were released, but were threatened that they would be arrested and charged if they continued to use sound equipment. The mayor later told plaintiffs' counsel that use of sound equipment was regulated by Darby Ordinance § 106-11.

 Plaintiffs claim that § 106-11 deals only with the use of sound equipment by peddlers and does not regulate equipment used in a political campaign. They assert that use of sound equipment was Lacey's only effective means of countering certain accusations made against him on the eve of the election. According to the complaint, the mayor is a member of the same political party as Lacey's opponent and exercised his police power to thwart Lacey's bid for reelection. Plaintiffs seek a declaration that § 106-11 cannot be used to regulate the use of sound equipment during an election and an order enjoining defendants from interfering with plaintiffs' use of such equipment in the exercise of their first amendment rights. Plaintiffs further request damages for the deprivation of their constitutional rights, attorneys' fees and certain other relief.

 In their motion for summary judgment, defendants note that the complaint does not refer to a specific civil rights statute. They discuss plaintiffs' claims in light of the requirements of 42 U.S.C. § 1983, and urge that the complaint is deficient in failing to allege that defendants acted under color of law.

 Defendants further contend that the Police Department of the Borough of Darby is not a separate entity and cannot be sued. They claim the mayor acted reasonably and in good faith, and is immune from liability. The Borough of Darby, according to defendants, is entitled to summary judgment because plaintiffs have neither alleged nor shown that the Borough has an official policy or custom to stop use of sound equipment in election campaigns. Finally, defendants note that plaintiffs have instituted a state court action against them, and suggest that I abstain and permit this matter to proceed in state court.

 Plaintiffs deny that their complaint is based on § 1983. They characterize this action as one for declaratory and injunctive relief, damages and attorneys' fees to protect rights established by the fourteenth amendment. Plaintiffs concede that the Darby Police Department is not a proper defendant. They continue to press their claims against the remaining defendants, claiming that the mayor is not shielded by immunity in this case and that the Borough of Darby is liable because a Borough ordinance was used to violate plaintiffs' rights.

 II. Discussion

 A. § 1983

 Defendants contend that this action should be treated as one brought under 42 U.S.C. § 1983. I agree. The Third Circuit has held that adjudication of direct constitutional claims need not be permitted where plaintiffs have an effective remedy under § 1983. Rogin v. Bensalem Township, 616 F.2d 680, 686-87 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 101 S. Ct. 1737, 68 L. Ed. 2d 223 (1981).

 According to the United States Supreme Court:

 
Allegations of fact sufficient to show deprivation of the right of free speech under the First Amendment are sufficient to establish deprivation of a constitutional right guaranteed by the Fourteenth, and to state a cause of action under the Civil Rights Act, whenever it appears that the abridgment of the right is effected under color of a state statute or ordinance.

 Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S. Ct. 877, 880, 87 L.Ed 1324 (1943). The "under color of law" requirement of § 1983 is satisfied in this case by plaintiffs' allegations that Mayor Saraullo used his official authority to violate their constitutional rights. See, e.g., Thomas v. Sams, 741 F.2d 783 (5th Cir. 1984), cert. denied, 472 U.S. 1017, 105 S. Ct. 3476, 87 L. Ed. 2d 612 (1985); Mines v. Kahle, 557 F. Supp. 1030, 1033-34 (W.D. Pa. 1983). Plaintiffs can obtain declaratory and injunctive relief as well as damages in a § 1983 action. There is thus no need to ...


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