Seitz, Aldisert and Stahl, Circuit Judges.
This is an appeal from summary judgment entered in favor of the defendant in an action for damages filed pursuant to the Civil Rights Act of 1871, 42 U.S. C.A. § 1983.*fn1 The complaint averred that the defendant, Prothonotary of the Superior Court of Pennsylvania, violated the appellant's constitutional rights by failing to accept certain papers for filing. To fully comprehend the nature of the complaint initiated in the court below, some knowledge of the history of the appellant's conviction and subsequent efforts to obtain relief is necessary.
Appellant was convicted in a state court of armed robbery in 1954 and sentenced to 20-40 years imprisonment. No direct appeal from the conviction and sentence was taken within the statutorily-prescribed limit of 45 days.*fn2 Twelve years passed. In 1966 he was permitted to file, nunc pro tunc, a motion for a new trial which was argued before the trial court sitting en banc on October 2, 1967. In an opinion filed on April 29, 1968, the court denied relief.
Following this denial and within the 45 days prescribed by the Pennsylvania appeals statute,*fn3 appellant mailed to the Prothonotary of the Superior Court a document entitled "Petition to File Appeal without Payments of Costs," a brief, and a petition for a writ of supersedeas -- all filed as an apparent appeal from the denial of his motion for a new trial.*fn4 Within two weeks, however, the materials were returned by the Prothonotary with a letter of transmittal noting that their rejection was "at the direction of the Court."
The gravamen of appellant's complaint is that the Prothonotary did not present these papers to the Court but arbitrarily returned them without court approval, thereby denying the appellant his right of appellate review and precluding a petition for allocatur to the state Supreme Court.
In direct contradiction to this allegation, the Prothonotary filed an affidavit wherein he attested that the return of the various documents was at the direction of the court and accordingly, moved for summary judgment. In opposition to the motion, appellant filed a "Motion of Plaintiff in response to the Defendant's motion for Summary Judgment," which the court below charitably accepted as a counter-affidavit, and which reasserted the appellant's contention that the Prothonotary had acted without court approval. In this "counter-affidavit" the appellant characterized the Prothonotary's affidavit as a willful and deliberate untruth but offered no facts to substantiate this charge.
Accepting that no civil liability may be imposed on a public official acting pursuant to court order, the district court reasoned that unless there was a genuine issue of fact as to whether the Prothonotary acted at the direction of the court, the appellee was entitled to summary judgment. In the face of the Prothontary's attestation that his action was pursuant to court order, contrasted with the naked denial of the appellant's "affidavit", the district judge concluded that no "bona fide" issue of fact was presented and granted summary judgment.
We are thus called upon to consider: (1) was there a genuine issue of material fact barring summary judgment; and (2) assuming no genuine issue existed, was the district court correct in holding that the Prothonotary was immune from suit?
Over a quarter of a century ago, this court, speaking through Judge Maris in Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016, 1018 (3 Cir. 1942), established certain principles governing summary judgment practice:
"Upon a motion for a summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment."*fn5
Stated in different terms, one who moves for a summary judgment bears the burden of demonstrating that there is no genuine issue of material fact. Fairbanks Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3 Cir. 1951).
It is also well established that although a motion for summary judgment can be based solely on the pleadings, consideration may also extend to materials extraneous to the pleadings where such are properly before the court. Federal Rule 56(e) provides, inter alia, that supporting and opposing affidavits may be submitted on personal knowledge, setting forth such facts as would be admissible in evidence and showing affirmatively that the affiant is competent to testify thereto. The Rule further provides that "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response ...