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THRUSH v. MORRISON

July 27, 1987

John D. Thrush, Plaintiff,
v.
Clarence C. Morrison, and Donna G. Thrush, Defendants



The opinion of the court was delivered by: MUIR

 I. Introduction.

 On October 20, 1986, John D. Thrush filed this action pursuant to 42 U.S.C. § 1983 seeking to enjoin the Defendants from enforcing an order against him pursuant to the Pennsylvania Divorce Code and a declaration that the equitable distribution section of the Pennsylvania Divorce Code is violative of the United States Constitution. By order of February 17, 1987, this Court dismissed the case on the ground that it lacked subject matter jurisdiction to review a decision of the Pennsylvania Supreme Court. On April 16, 1987, Donna G. Thrush filed an application for counsel fees and expenses pursuant to 42 U.S.C. § 1988 and Fed.R.Civ.P. 11.

 On June 2, 1987, a hearing was held on Donna G. Thrush's application for counsel fees and expenses. The following are the Court's findings of fact, discussion, and conclusions of law.

 II. Findings of Fact.

 1. On April 15, 1981, Donna G. Thrush filed a divorce action against John D. Thrush in the Court of Common Pleas, Dauphin County, Pennsylvania.

 2. The Honorable Clarence C. Morrison entered an order, date unascertainable from the record, dissolving the marriage of John D. and Donna G. Thrush and ordered the marital property equitably distributed pursuant to the Pennsylvania Divorce Code.

 3. John D. Thrush appealed Judge Morrison's order to the Superior Court of Pennsylvania, alleging, inter alia, an unconstitutional taking of property under the United States Constitution.

 4. On July 12, 1985, the Superior Court, relying on Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982), held that Pennsylvania's equitable distribution statute is constitutional.

 5. John D. Thrush did not file a motion for reconsideration in the Superior Court of Pennsylvania.

 6. On August 13, 1985, John D. Thrush petitioned the Supreme Court of Pennsylvania for allowance of appeal from the order of the Superior Court.

 7. On May 29, 1986, the Supreme Court of Pennsylvania denied John D. Thrush's petition.

 8. John D. Thrush did not appeal the decision of the Supreme Court of Pennsylvania to the United States Supreme Court.

 9. On October 20, 1986, John D. Thrush filed a complaint in the United States District Court for the Middle District of Pennsylvania pursuant to 42 U.S.C. § 1983 raising the identical issues he had raised in the Pennsylvania courts.

 10. On February 17, 1987, this Court dismissed the complaint.

 11. The complaint bears the signature of attorney Allen H. Smith.

 12. Attorney Smith knew at the time he filed the complaint, or should have known after conducting a reasonable inquiry, that Donna G. Thrush was not a government official.

 13. Attorney Smith knew when he filed the complaint, or should have known after conducting a reasonable inquiry, that Donna G. Thrush had not acted and did not intend to act in concert with a state actor in any way which would have rendered her liable under 42 U.S.C. § 1983.

 14. Attorney Smith knew or should have known after reasonable inquiry prior to filing the complaint that "state action" is a prerequisite for liability under 42 U.S.C. § 1983.

 16. The complaint contained a claim for attorney's fees.

 17. Attorney Smith has not sent his client, John D. Thrush, a bill for services rendered.

 18. Attorney Smith did not execute a fee agreement with his client, John D. Thrush.

 19. Attorney Smith did not maintain contemporaneous records of time spent on this case.

 20. The facts alleged in the complaint were sworn to by John D. Thrush.

 21. John D. Thrush swore that the Defendants were sued ". . . individually and in their official capacities . . . ."

 22. John D. Thrush knew at the time he signed the affidavit attached to the complaint that his ex-wife, Donna G. ...


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