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SYRE v. PENNSYLVANIA

May 27, 1987

Richard Syre, Plaintiff
v.
Commonwealth of Pennsylvania, et al.



The opinion of the court was delivered by: DITTER

 DITTER, J.

 Plaintiff, an attorney, brought this pro se action against sixteen defendants under a host of state and federal constitutional provisions and statutes as well as common law causes of action. His claims all arise from a state criminal investigation, prosecution and conviction for witness tampering. *fn1" Presently before me are defendants' motions to dismiss, plaintiff's motion for summary judgment, and the Commonwealth's motion for summary judgment. For the reasons that follow, defendants' motions to dismiss will be granted.

 Plaintiff was a lawyer for the teamsters. On December 4, 1981, he was convicted of tampering with Ezekiel Gibbs, a witness in a criminal case against several teamster members. The critical evidence against plaintiff in his criminal trial were tapes of recorded conversations he had with Gibbs during which Syre purportedly offered to pay Gibbs for not testifying against the teamsters. The details of plaintiff's criminal trial are more fully set forth in the first supreme court decision, Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985), incorporated by reference into the complaint. Plaintiff contends that the defendants violated his rights in connection with the use of a recording device and during his prosecution and the subsequent appeal. He seeks damages, as well as injunctive and declaratory relief regarding his conviction.

 DAMAGES

 1. Immunity

 Plaintiff bases his claim for damages on a variety of grounds. For the reasons that follow, several defendants are absolutely immune from all or some of plaintiff's damage claims.

 A. Commonwealth

 The eleventh amendment prohibits suits from being brought against a state in federal court. Plaintiff contends that the state has waived this immunity under the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. Ann. § 5701 et seq. See id. at § 5725(b). The Supreme Court, however, has held that "in order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the state's intention to subject itself to suit in federal court." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 3147, 87 L. Ed. 2d 171 (1985) (emphasis in original). Section 8521(b) does not satisfy this test since it only waives sovereign immunity for damages without expressly waiving the eleventh amendment privilege from suit in federal court. Accordingly, plaintiff can not recover damages in federal court based on an alleged violation of the Wiretapping Act by the Commonwealth.

 B. Pennsylvania Supreme Court, Court of Common Pleas of Philadelphia County, and Judge Stanley Kubacki

 Plaintiff's claims against the common pleas court and Judge Kubacki arise from his conviction and decisions made by Judge Kubacki during the trial. He also alleges that the first decision by the Pennsylvania Supreme Court was a violation of due process.

 It is well established that judges and courts are absolutely immune from damage liability for actions taken within their judicial capacities. Stump v. Sparkman, 435 U.S. 349, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978); County of Lancaster v. Philadelphia Electric Co., 386 F. Supp. 934 (E.D. Pa. 1975). Plaintiff fails to allege that defendants acted in such a way as to lose their immunity. See Stump v. Sparkman, supra, at 357 n.7. Thus, plaintiff can not maintain a claim for damages against the judicial defendants.

 C. Philadelphia District Attorney's office, Edward Rendell, Lloyd George Parry, and Eric Henson

 Plaintiff alleges that all these defendants, except Henson, are liable for their conduct in connection with the electronic surveillance, the notice of the surveillance, and the criminal trial. Plaintiff claims that Henson is ...


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