County. Fay alleged that one of the prison trusties already knew about his undercover work and "worked him over" and threatened to let other prisoners know about his undercover work unless he paid the trusty money. Fay admits that he did not need any medical attention as a result of his encounter with the trusty, but because he was concerned about the potential for violence against him at the Bedford County Jail, he escaped the next morning with seven other inmates. Fay attempted to contact the state police to protect himself, and turned himself in on the day he escaped. In the news releases surrounding the media excitement over the escape of eight prisoners from the county jail, Sheriff/Warden Max Norris of Bedford County related that Fay had worked undercover at the Somerset County Jail. As a result, Fay contends the prisoners in the cell he was in assaulted him, cracking one of his ribs, until a guard whose name Fay could not recall rescued him.
Fay remained in the Bedford County Jail approximately one week more, and was returned to the Somerset County Jail after Hill, Perkowski, and Rasanen were removed to more secure locations. The stay at the Somerset County Jail was brief, however, and Fay was taken back to S.C.I. Dallas. In December, 1990, Fay was transferred to S.C.I. Pittsburgh.
Fay received a letter in 1990 from a deputy director of the Department of Corrections, Erskind DeRamus, which asserted that the Department was not bound by any promise allegedly made by the Pennsylvania State Police. Additionally, Fay was charged in Bedford County with escape, 18 Pa.C.S. § 5121, was convicted, and received the maximum 3 1/2 - 7 year sentence consecutive to his other sentences. Id., § 5121(d)(1). His minimum date on the aggregate 18 1/2 - 42 year sentence is 1998, of which he has served about one-half. Fay's maximum date is 2018.
The notable distinction between the trial of this matter and almost every other prisoner civil rights complaint in my experience is that the Commonwealth did not seriously dispute the facts as Fay alleged them, nor seriously attempt to contradict the proof of those facts at trial. Defendant Ryan did not even list as witnesses the state troopers who allegedly made the contractual promises to Fay. Defendant Ryan relies on one legal and one equitable defense to Fay's claim. As a matter of law, Ryan asserts that because he was not a party to the promises made by the Pennsylvania State Police, nor authorized them, nor ratified them, he therefore cannot be bound by them.
As a matter of equity, Ryan asserts that because Fay is a dangerous prisoner with an admitted history of escapes from less secure facilities, any agreement to reduce his confinement status would be void as against public policy. See generally Dobbs, Remedies § 13.5, Remedies for Benefits Conferred under Illegal Contracts.
Conclusions of Law
Section 1983 claim
By more than a preponderance of evidence, I find that officers of the Pennsylvania State Police promised Fay a specific benefit, namely transfer to a lower security institution such as the Somerset County Prison, in exchange for the assistance Fay offered in working undercover to flush out the kidnapping plot. Despite the argument raised by Ryan in his cross-examination of Fay that mention of reward in the discussions of the Somerset barracks came after Fay had agreed to work undercover and therefore constituted an unbargained-for promise, I conclude that, assuming the officers had the capacity to form a contract, the negotiations led to a binding bilateral executory contract.
The threshold question confronting a federal court in addressing Fay's claim under Section 1983, however, since there is no question of the existence of state action, is whether plaintiff alleges the violation of a federal constitutional or statutory right. See e.g. Siegert v. Gilley, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991); West Virginia University Hospitals, Inc. v. Casey, 885 F.2d 11, 18 (3d Cir.1989), aff'd, 499 U.S. 83, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991).
Is a post-sentencing contractual obligation imposed on state officials a right, privilege, or immunity secured by the Constitution or federal law? The law on the subject is scant, with the majority of courts which have considered the general question holding that simple contract formation with state actors does not implicate the Constitution. See Downtown Auto Parks, Inc. v. Milwaukee, 938 F.2d 705 (7th Cir.1991); Medical Laundry Services v. Trustees of University of Alabama, 906 F.2d 571, 593 (11th Cir.1990) (citing Judge Roney's dissent in Medical Laundry Services v. University of Alabama, 840 F.2d 840, 843 (11th Cir.1988); S&D Maintenance Co., Inc. v. Goldin, 844 F.2d 962, 966-67 (2d Cir.1988). Without extensive analysis, one court has assumed constitutional immunities from prosecution to be implicated in contractual promises by law enforcement officers in the course of the investigation of crime. Arkebauer v. Kiley, 751 F. Supp. 783 (C.D.Ill.1990).
The bulk of the decisions discussing specific performance of the typical law enforcement officer/criminal defendant contract, i.e., a plea bargain, are federal prosecutions not directly relevant to the legal issue in question, see United States v. Martin, 788 F.2d 184, 187 (3d Cir.1986); United States v. Brody, 808 F.2d 944, 947 (2d Cir.1986), because the federal government is by definition restrained by federal law. However, the Supreme Court decision which is the foundation for most of the federal decisions, Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), although it involved a state court agreement, was before the Court on direct review. The Court's decision on the merits must therefore have assumed without discussion that the due process clause of the Fourteenth Amendment required state prosecutors to live up to their bargains, or the matter would have had to have been dismissed as resting on independent state law grounds. See e.g. Michigan v. Long, 463 U.S. 1032, 1038, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 n.4 (1983).
The unexamined underpinnings of Santobello and the unique facts of Arkebauer are fragile bases for extending the reach of Section 1983 to additional areas of contract with law enforcement officers. The federal system is straining with the onslaught of state prisoner cases as it is, see Doumar, Prisoners' Civil Right Suits, 11 George Mason L.Rev.1 (1988), and the doctrinal extension of Santobello which Fay must argue to obtain relief under Section 1983 would result in a massive shift of workload from the state administrative and judicial systems to the federal courts.
Additionally, the trend in modern analysis of prisoner claims for non-systematic tort law violations by state officials in the prison setting indicates a preference for letting the state courts deal with areas of law not committed by the text of the Constitution to the federal courts. See Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) overruled in part by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1984); Hudson v. Palmer, 468 U.S. 517, 534-36 (1984). No jurisprudential reason exists not to apply that analysis to simple breaches of contract.
I hold that no Section 1983 claim is stated by plaintiff. If on appeal the Court of Appeals decides either that Section 1983 is implicated by the type of contractual promise at issue in this case, or that Fay has pleaded a pendent state law breach of contract claim, the analysis of Fay's right to recover would be tantamount to resolving a state law contract action involving a request for specific performance. I therefore turn to that analysis.
State law claims
There is no question that there was offer and acceptance, consideration, and on Fay's side, performance of the agreement made in March, 1989. The only issue to be resolved in deciding whether the agreement was a contract is the capacity of members of the state police to form a contract binding on the Department of Corrections.
Under Pennsylvania law, a principal is bound by the contracts made by its agents acting within their authority. Restatement of Agency, 2d, § 144, § 186. Bolus v. United Penn Bank, 363 Pa. Super. 247, 525 A.2d 1215, 1221 (1987), app. denied, 518 Pa. 627, 541 A.2d 1138 (1988). In the instant matter, however, there is little dispute that the officers of the Pennsylvania State Police were not the authorized agents of the Department of Corrections. The Department of Corrections, in fact, could not as a matter of state law delegate authority to the Pennsylvania State Police to make the kind of promise at issue in this matter. See 37 Pa. Code. § 93.11(a) ("No inmate shall have a right to be housed in a particular institution or in a particular area within an institution.")
Under Pennsylvania law, even if the officers of the Pennsylvania State Police are not the agents of the Department of Corrections, they may have bound the Department if they were apparently authorized to make an agreement with Fay in March, 1989. Restatement of Agency, 2d, § 159. See also id., § 194. Apparent authority, however, is a power "arising from and in accordance with the [principal's] manifestations to [third parties]." Id., § 8. Here, the Department of Corrections did not in any way convey to Fay the impression that the Pennsylvania State Police were authorized to act for them.
See D&G Equipment Co. v. First Nat'l Bank of Greencastle, 764 F.2d 950, 954 (3d Cir.1985). Nor did the Department of Corrections fail to indicate to Fay that they did not acquiesce in or ratify the actions of the state police. See Gordon L. Brown Associates v. Charnita, Inc., 329 Pa. Super. 325, 478 A.2d 491, 492 (1984). Although the individual members of the state police assured Fay that he had an agreement with them, they had no power to bind the Department of Corrections. Whether their error resulted from deception or inadvertent mistake, or even if they sincerely attempted to fulfill their end of the bargain, there was no contract binding on the Department of Corrections.
I am constrained to comment that regardless of the legal niceties, Fay voluntarily risked his life to save several other persons from potentially serious harm or death, and the Department of Corrections, as a branch of the same government as the Pennsylvania State Police, owes Fay a moral debt to consider easing the burdens on his confinement. On the facts of this case, even if Fay were entitled to relief, I would consider it void as against public policy to enforce a contract calling for his transfer to a less secure institution. There are, however, less restrictive classifications within the very state prison where Fay is now confined that can and should be considered.
Judgment is entered for the defendant. Plaintiff shall file any notice of appeal to this order or to the previous orders dismissing his action against defendant Ryan, the Pennsylvania State Police, and the county defendants within 30 days of the entry of judgment. In forma pauperis status, if requested, is continued on appeal. The Clerk shall mark this matter closed.
BY THE COURT,
D. Brooks Smith, United States District Judge
DATE: February 10, 1993