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TILLIO v. MONTGOMERY CTY.

September 27, 1988

PATRICK TILLIO
v.
MONTGOMERY COUNTY, et al.



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE

 Plaintiff originally filed this civil rights action pro se. In a January 1988 order, I ordered the complaint dismissed unless plaintiff filed an amended complaint that comprehensibly set forth jurisdiction, claims, parties, and events. Plaintiff obtained counsel and an extension of time and filed an amended complaint in March 1988. That amended complaint, the subject of the present motion, names as defendants: Montgomery County, Lower Merion Township, Lower Merion Township Police Officers, Norristown, and Norristown Sheriffs. Pursuant to Federal Rule of Civil Procedure 12(b)(6), these defendants have moved for dismissal of the complaint and/or for summary judgment.

 Plaintiff's complaint arises from a series of events surrounding his admitted failure to pay fines assessed for violating various Lower Merion ordinances. Plaintiff was summarily convicted of various permit violations and in January 1985 entered an appeal with the Court of Common Pleas for Montgomery County, Criminal Division. On August 8, 1985, after a hearing, Judge Horace Davenport found plaintiff guilty of violating five ordinances and assessed fines and costs of $ 975.05. Plaintiff's motion for a new trial was denied, and his appeal to the Superior Court was subsequently withdrawn by his attorney. In June 1986, Judge Davenport issued a bench warrant for plaintiff to be taken into custody and brought before the court to answer for his failure to pay. Plaintiff was notified of this warrant, but remained in financial delinquency until April 1987.

 The complaint also alleges that on April 1, 1987, a Norristown sheriff called and asked plaintiff to come to the Montgomery County courthouse the next day. *fn1" Plaintiff reported to the courthouse, where, so he alleges, the defendant sheriffs told him to pay the fines or be arrested, then "bodily removed Plaintiff from their office, without provocation, need, or explanation, punched him in the lower back and locked him in a cell, at around 10:00 am." Amended complaint para. 15. Several hours later, plaintiff appeared before Judge William Nicholas, who directed payment or six months incarceration in the county prison in default. Judge Nicholas remanded plaintiff to custody "until the full amount is paid"; plaintiff paid the fines and was released from custody several hours after the hearing.

 The amended complaint presents plaintiff's § 1983 claim in three somewhat indistinct counts: (I) that the above acts of all defendants denied plaintiff equal protection of the law and impeded justice; (II) that the arrest and detention were unlawful because plaintiff was denied a hearing at the August 1985 conviction; and (III) that the municipalities approved or ratified the acts of the defendant officers and sheriffs. Plaintiff seeks both compensatory and punitive damages. *fn2"

 I. Claims against Lower Merion Township Police Officers and Lower Merion Township

 Given that plaintiff does not challenge the validity of the Lower Merion ordinances, the sole event alleged in the complaint that involves the defendants Lower Merion Township and its police officers is the attempted arrest of plaintiff in late March 1987. Assuming the alleged facts of the officers' visit to plaintiff's home to be true, I do not find that they describe even a remote violation of plaintiff's constitutional rights. Accordingly, I will dismiss plaintiff's claims against defendant Lower Merion Police Officers and, by extension, Lower Merion Township, for failure to state a claim.

 II. Claims against "Norristown Sheriffs" and Norristown

 In the motion to dismiss, defendants clarify what appears to be plaintiff's misunderstanding as to the identity of the sheriffs with whom he dealt at the Montgomery County courthouse in Norristown, Pennsylvania. There are no "Norristown Sheriffs," and the law enforcement officers at the courthouse were in all probability Montgomery County Sheriffs. Thus, for the purposes of this motion I will regard charges against "Norristown Sheriffs" as mistitled acts of Montgomery County sheriffs and consider these claims in the next section with those against Montgomery County. As I find no allegations of any conduct by Norristown other than the acts of the mistakenly identified sheriffs, I will dismiss plaintiff's claims against defendant Norristown.

 III. Claims against Montgomery County Sheriffs and Montgomery County

 Mr. Tillio's appeal of his summary conviction resulted in the hearing before Judge Davenport on August 8, 1985. The transcript of this hearing shows that Mr. Tillio and his attorney were present. Exh. A, Defendants' Reply Brief. Neither objected to the evidence of the violations of the Lower Merion ordinances presented at the hearing. Plaintiff alleges no facts tending to establish that Judge Davenport denied him a hearing or improperly denied his motion for a new trial. Although plaintiff now denies it, he admitted to Judge Nicholas in the April 1, 1987 hearing that he withdrew his appeal to Judge Davenport's ruling, Exh. B, Defendants' Reply, at 5; and he does not now point to anything inconsistent with the October 3, 1985 application of his attorney to withdraw the appeal and the Superior Court's entry of that withdrawal on October 4, 1985, Exh. F, Defendants' motion. In sum, plaintiff appeared to be fully aware of his ...


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