Opposition Brief — Patz v. Hollidaysburg Trust Co.

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aii JUL 7 1994

No. 93-2000 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

IRVING M. PATZ

and

ANDREW D. PATZ,

Petitioner,

vs

HOLLIDAYSBURG TRUST CO.,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Daniel P. McDyer, Esq.

ANSTANDIG, LEVICOFF &

MCDYER, P.C.

2200 Gulf Tower

Pittsburgh, PA 15219

(412) 765-3700

Attorneys for Respondent,

Hollidaysburg Trust Co.

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QUESTION PRESENTED FOR REVIEW

Ae Whether Petitioners had any consti-

tutionally protected privacy right or interest

in negotiated bank money orders sufficient to

form the basis of an action under 42 U.S.C.

§1983.

a Whether a bank’s' surrender of

negotiated money orders to a police officer

during a criminal investigation pursuant toa

search warrant is an action by the bank under

the color of state law sufficient to subject

the bank to liability under 42 U.S.C. §1983.

3 Whether the District Court and

Court of Appeals correctly dismissed Peti-

tioner’s pro se complaint pursuant’ to

F.R.Civ.P.12(b) where it was held to be legal-

ly without merit?

TABLE OF CONTENTS

Questions Presented for Review

Table of Authorities

Counter-Statement of the Case

Reasons for Denying the Petition

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Petitioners’ Claim Lacks

the Required Elements of

a 42 U.S.C. §1983 action,

as there was No Depriva-

tion of a Protected Right

and No "State Action", and

Petitioners’ Action was

Properly Dismissed

Conclusion

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TABLE OF AUTHORITIES

Page

Adickes vs. S. H. Kress & Company,

398 U.S. 144, 90 S.Ct. 1598,

26 L.Ed.2da 142 (1987). an eh | a ae ae

Commonwealth vs. DeJohn, 486 Pa.

32, 403 A.2d 1283, cert.

denied, DeJohn vs. Pennsylvania,

444 U.S. 1032, 100 S.Ct. 704, 62

L.Ed.2d 668 (1979) SS ee i i 2

Flaqa Brothers, Inc. vs. Brooks,

436 0.8. 149, 938 &.Ct. 1729,

56 L.Ed.2d 185 (1978) 5g 7 ae a 7

Fonda vs. Gray, 707 F.2d <35

i Ph 6 5 se 6 ee ee 11

Haines vs. Kerner, 404 U.S. 519,

92 §.Ct. 594, 30 L.Ed.2d 652

(1972) aE Ae oo Ea et Ce ee 12

Lugar vs. Edmondson Oil Company,

457 U.S. 922, 102 S.Ct. 2744,

72 L.Ed.2d 482 (1982) cee om ee

United States vs. Miller, 425

U.S. 435, 96 S.Ct. 1619, 48

L.Ed.2d 71 (1976) ta ae er oe 7,8

iii

TABLE OF AUTHORITIES (cont’d)

STATUTES AND RULES

Page

U.S. Constitution, Amendment I... . 3

U.S. Constitution, Amendment IV .. . .3,7,8

U.S. Constitution, Amendment V.... . 3,13

U.S. Constitution, Amendment VI... . 3

U.S. Constitution, Amendment IX ... . 3,13

U.S. Constitution, Amendment XIV... . 3,13

Pennsylvania Constitution,

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COUNTER-STATEMENT OF THE CASE

Petitioners filed this action in the

United States District Court for the Western

District of Pennsylvania, pro se, generally

alleging that the Respondent, Hollidaysburg

Trust Company,’ somehow violated various

"constitutional" rights by providing negotiat-

ed bank instruments to the police department

pursuant to a search warrant. The local

police department had sought the instruments

in the course of their investigation concern-

ing the theft of funds from Petitioner, Irving

Patz’s, employer.

Petitioners were eventually arres +d and

charged with theft. Pricer to their criminal

trial in the court of Common Pleas of Blair

County, Pennsylvania, Petitioners filed a

motion to suppress the evidence of money

orders which had been provided to the police

1 Respondent, Hollidaysburg Trust Com-

pany, is a 100% owned subsidiary of Penn

Central Bancorp., Inc.

by Hollidaysburg Trust Company pursuant to a

search warrant. The motion to suppress was

denied by the state trial criminal court.

Following Petitioners’ criminal trial, no

appeal was taken by either Petitioner on the

issue of the suppression of the bank records.

Petitioner claims that his attorney at the

criminal trial failed to brief the issue and

lost the right to appeal that ruling.’

While Petitioner Irving Patz was incar-

cerated in a state prison in Mercer, Pennsyl-

vania and Andrew Patz was living in Houston,

Texas on probation, Petitioners filed this

civil rights action against respondent,

Hollidaysburg Trust Company, in an improper

and misdirected attempt to collaterally chal-

7 It is interesting to note that, at the

same time, Petitioners appear to claim that

they were not convicted of any charges which

arose out of the respondent’s turning over

records. Petitioner Irving Patz alleges he is

incarcerated as a result of a conviction on

unrelated charges. Petition for Writ of

Certiorari, pp. 11-12.

2

a TT ee Te

lenge the state criminal trial court’s deci-

sion in the suppression hearing.

Petitioners filed a pro se complaint and

a motion to amend complaint, apparently at-

tempting to plead a civil rights claim under

42 U.S. §1983. Petitioners generally alleged

that respondent violated a "contractual duty

of confidentiality", the lst, 4th, Sth, 6th,

9th and 14th Amendments to the United States

Constitution and the Pennsylvania Constitu-

tion, Article 1, Section 8, by providing

Petitioners’ negotiated money orders to the

Hollidaysburg policy department.’

3 In their Petition for Writ of Certio-

rari, Petitioners claim only violations of

their 4th, Sth, 9th, and 14th Amendment

rights, although there is no discussion in the

Petition as to the specifics of any of the

alleged violations. Therefore, Petitioner has

waived any claim under the lst or 6th Amend-

ments. Petitioners claims of violation of a

"contractual duty of confidentiality" and the

Pennsylvania constitution cannot be the basis

of a §1983 action as they do not involve

rights secured by the constitution or laws of

the United States

eT

Respondent filed a motion to dismiss in

the District Court, on the basis that Peti-

tioners failed to state a claim upon which

relief could be granted, because there was no

constitutionally protected right in negotiated

instruments and that Respondent did not act

under color of state law as required by 42

U.S.C. §1983.

The District Court, after consideration

of both Petitioners’ initial complaint and a

motion to amend complaint, held that, even if

Petitioners’ conclusory allegations are ac-

cepted as true, there was no basis on which it

could be held that respondent acted under

color of state law, and therefore, the court

lacked jurisdiction over the claim pursuant to

28 U.S.C. §1343(a) (3).

The Petitioners then appealed the Dis-

trict Court’s decision to the United States

Court of Appeals for the Third Circuit. The

Court of Appeals for the Third Circuit af-

firmed the judgment of the District Court.

Petitioners filed a motion to reconsider and

a motion for mandatory injunction which were

both denied by the Court of Appeals for the

Third Circuit. The Third circuit denied the

Motion for Mandatory Injunction without preju-

dice to the right of the Petitioner to fie

pleadings before the criminal court in which

the search was conducted.

REASONS FOR DENYING THE PETITION

The Petitioners’ civil rights action

fails because it lacks both the elements

required to bring an action under 42 U.S.C.

§1983; (1) the infringement of a constitution-

ally protected interest, and (2) action under

color of state law by a private person.

Additionally, appellant’s pro se com-

plaint and motion to amend complaint exten-

sively set forth the basis of their claim.

The courts below gave Petitioners the benefit

of all inferences from the complaint and

motion and considered all the evidence includ-

ed within the complaint and motion to amend

complaint. The courts below properly dis-

missed the action under F.R.Civ.P.12(b) as

without legal merit, rather than due to tech-

nical deficiency.

Lastly, this action does not involve a

question of general importance or a conflict

on an important issue between the circuits

which would merit review by this Court. This

case was properly and fairly decided by the

courts below and the Petition for Writ of

Certiorari should be denied.

a PETITIONERS’ CLAIM LACKS THE RE-

QUIRED ELEMENTS OF A 42 U.S.C.

§1983 ACTION, AS THERE WAS NO DE-

PRIVATION OF A PROTECTED RIGHT AND

NO "STATE ACTION" AND PETITIONERS’

ACTION WAS PROPERLY DISMISSED.

This lawsuit is a misguided attempt to

re-litigate or, in effect, "appeal" the state

criminal trial court’s ruling on the

Petitioners’ motion to suppress. Having

failed to preserve the issue of the admis-

sibility of the bank records for appeal in the

state criminal court, Petitioners are now

improperly attempting to re-litigate this

issue in this action against a bystander to

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the criminal trial, your Respondent,

Hollidaysburg Trust Company.

The genesis of this action is that

Hollidaysburg Trust Company provided negotiat-

ed money orders to the Hollidaysburg, Pennsyl-

vania Police Department. This conduct cannot

be the basis of a civil rights action pursuant

to 42 U.8.C. §1963.

A §1983 action has two basic elements,

Plaintiff is bound to show that he

has been deprived of a right "secured by

the constitution and the laws of the

Untied States".

a Plaintiff must show that a private

party deprived them of that right acting

under color of any statute of a state.

Flagg Brothers, Inc. v. Brooks, 436 U.S.

149, 36 8.66. iter: 56 L.Ed.2d 185

(1978).

Petitioners’ claim fails to satisfy

either of these elements. This Court has

previously held that there is no constitu-

tional protection of bank records by virtue of

the 4th Amendment. United Sates vs. Miller,

425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71

(1976). The Defendant in Miller argued that

federal agents had violated his 4th Amendment

rights by seizing his banking and checking

records. In rejecting the defendant’s argu-

ment, the Court stated in relevant part:

The checks are not con-

fidential communi -

cations but negotiable

instruments to be used

in commercial transac-

tions...The depositor

takes the risk, in re-

vealing his affairs to

another, that the in-

formation will be con-

veyed by that person to

the government.

425 U.S. at 442-445.

In Miller, this Court expressly rejected

any "expectation of privacy" in bank records

which contain information voluntarily conveyed

to banks, and held that the 4th Amendment does

not prohibit the obtaining of information

revealed to a third party and conveyed by him

to Governmental authorities. 425 U.S. at 441-

443.

Petitioners’ citation of Commonwealth vs.

DeJohn, 486 Pa. 32, 403 A.2d 1283, cert. den.

De,John vs. Pennsylvania, 444 U.S. 1032, 100

S.Ct. 704, 62 L.Ed.2d 668 (1979), is a futile

and improper attempt to create a conflict

between this Court and a state court of last

resort concerning privacy rights in bank

instruments. DeJohn was decided by the Penn-

sylvania Supreme Court solely on Pennsylvania

state constitutional grounds.

Petitioners’ claims aiso fail the second

element required of a §1983 action. The lower

court correctly held that respondent did not

act "under color of state law" to deprive a

Petitioner of any right. In fact, Petitioners

expressly allege in their petition that Re-

spondent acted in violation of, and not in

accord with, state law. (See, Petition for

Writ of Certiorari, Questions Presented, No.

2). This is inconsistent with a claim of

action under color of state law, and is fatal

to Petitioners’ claims.

In Lugar v. Edmondson Oil Company, 457

U.S. 922, 102 S.Ct. 2744, 72 L.Ed.2d 482

(1982), cited by the District Court, a Peti-

tioner brought a §1983 action against a credi-

tor who had obtained a writ of attachment,

sequestering Petitioner’s property pursuant to

Virginia law. The Petitioner alleged that, in

attaching his property, the creditor acted

jointly with the state to deprive Petitioner

of his property without due process of law.

Id. at 924-925.

The Supreme Court held that insofar as

Petitioner alleged only misuse or abuse by the

respondents of Virginia law, he did not state

a claim under §1983, but instead challenged

only private action. This was so because the

alleged conduct could not be ascribed to any

governmental decisions; neither did respon-

dents have the authority of state officials to

put the weight of the state behind their

decision. Id. at 940. In other words, to say

that an act is "unlawful under state law" is

to say that the conduct cannot be attributed

to the state. Id.

Petitioners cite the decision of this

Court in Adickes vs. S. H. Kress & Company,

398 U.S. 144, S.Ct. 1598, 26 L.Ed.2d 142

(1978) in an attempt to find state action.

Adickes is clearly distinguishable from this

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decision and does not conflict with either the

Lugar decision or the Third circuit’s decision

in this case. Adickes involved a §1983 action

alleging a conspiracy between a restaurant

owner and the local police to deprive Ms.

Adickes of her constitutional right to eat

with black individuals in a public restaurant

in Mississippi. Any attempt to analogize the

facts of Adickes with those in the ovement

matter must fail. The providing of bank

records in which there is no constitutional

protection cannot be equated with the refusal

to serve persons based on their race in a

public restaurant.

On the contrary, the lower court’s

decision is consistent with the decision of

another circuit in a similar case. In Fonda

vs. Gray, 707 F.2d 435 (9th Cir. 1983), the

Court of Appeals for the Ninth Circuit held

that a bank could not be liable under §1983

when the bank’s actions were responsive to a

request of the FBI to view Jane Fonda’s bank

records, as the state action requirement was

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not met by the bank’s mere compliance with a

government official’s request.

Finally, Petitioners claim they were held

to some "higher standard of pleading" as pro

se plaintiffs. On this issue, petitioners

attempt to create a conflict between this case

and Haines vs. Kearner, 404 U.S. 519, 92 S.Ct.

594, 30 L.Ed.2d 652 (1972), which held that a-

prisoner could not be said to be unable to

prove a set of facts in support of his claim

that would entitle him to relief. The Peti-

tioner in Haines alleged that he had been

denied due process by being placed in solitary

confinement as a disciplinary measure at a

state prison.

In the contrast to Haines, the District

Court and the Third Circuit gave Petitioners

the benefit of every inference from their

complaint and Motion to Amend Complaint, and

did not base a judgment on any technical

deficiency in the pleadings. Rather, the

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claim lacked legal merit for the reasons

stated above.‘

CONCLUSION

Petitioners’ Petition for Writ of Certio-

rari to the United States Supreme Court should

be denied. The Petitioners’ claims are en-

tirely without merit and have no national or

constitutional siqnificance. The issues have

been previously adjudicated and the rulings of

the courts below are consistent with prior

decisions of this Court and relevant decisions

in the various Circuits.

Respectfully submitted,

DANIEL P. MCDYER, ESQUIRE

PA.I.D. 19854

ANSTANDIG, LEVICOFF & McCDYER, P.C.

2200 GULF TOWER

PITTSBURGH, PENNSYLVANIA 15219

(412) 765-3700

Attorneys for Respondent

* Petitioners’ Sth and 9th Amendment

claims have not been briefed, are waived, and,

at any rate, are baseless and completely

unfounded, as the actions of a private party

cannot serve as the basis of a claim under

these amendments. Petitioners 14th Amendment

claim necessarily fails as there is no state

action.

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