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August 23, 1956


The opinion of the court was delivered by: DUSEN

This case comes before the court *fn1" on defendant's motion under Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C., to dismiss the complaint, which alleges that from July 19, 1954, to July 21, 1954, inclusive, defendant intercepted telephone conversations between plaintiff and others by an 'unauthorized 'tap',' made tape recordings of such conversations, and has divulged, as well as will divulge in the future, the contents of the conversations in violation of 47 U.S.C.A. § 605. *fn2" The complaint asks that the defendant be enjoined from divulging the contents of these communications and be directed to deliver the tape recording to the court for destruction.

The uncontradicted affidavit of the defendant discloses these facts:

 A. Defendant has been, ever since prior to July 19, 1954, a police officer of Lancaster, Pennsylvania, and the interception of the telephone conversations between July 19 and July 21, 1954, was done under orders of his superior police officers.

 B. The only divulging of the contents of these conversations by defendant has been in the prosecution of plaintiff on the charge of bookmaking *fn3" (No. 161 of June Term 1954, Court of Quarter Sessions of Lancaster County) and to his superior police officers, to members of the District Attorney's office and at the preliminary hearing.

 C. In December 1955, plaintiff filed a complaint in this court (No. 19,932), naming the District Attorney of Lancaster County and a co-police officer as well as this defendant as defendants, seeking to restrain them from using the contents of these telephone conversations of July 1954 as evidence in any proceeding against plaintiff and to suppress and destroy all such evidence. This complaint was dismissed by order of this court in January 1956 and this order was affirmed by the Circuit Court of Appeals for the Third Circuit on June 13, 1956, Voci v. Storb, 235 F.2d 48.

 D. The complaint in the action now before the court, filed June 20, 1956, is based on the identical facts involved in the complaint filed in December 1955.

 At the argument, the defendant's counsel consented to the entry of a decree enjoining and restraining his client from divulging the contents of the abovementioned telephone conversations, except such divulging as is required in the prosecution of crimes solely within the power of the Commonwealth of Pennsylvania. For this reason, the question before this court is: Should this court exercise its equitable power to restrain a city police officer from using wire tap evidence in a state court prosecution for the crime of bookmaking?

 There has been no showing that plaintiff will sustain 'clear and imminent' *fn4" injury by raising in the pending state court proceeding his contention that the Federal Communications Act prohibits the admission of this evidence, which proceeding is subject to review by the Supreme Court of the United States assuming his federal grounds are appropriately asserted. Under such circumstances, it has been consistently held that the federal courts should not exercise their equitable powers to interfere with the prosecution of crimes solely within the power of a state. See Stefanelli v. Minard, 3 Cir., 1950, 184 F.2d 575, affirmed, 1951, 342 U.S. 117, 120-122, 72 S. Ct. 118, 96 L. Ed. 138; Douglas v. City of Jeannette, Pa., 1943, 319 U.S. 157, 163, 63 S. Ct. 877, 87 L. Ed. 1324. *fn5"

 Furthermore, since a judgment on the merits of plaintiff's right to injunctive relief in the federal courts was entered for defendant in the previous action (No. 19,932) and has been affirmed on appeal, *fn6" the plaintiff is precluded from relitigating his right to this same injunctive relief against this defendant in this action, even though he should, which he does not do in this record, present a ground for relief other than those presented in the prior action. *fn7" See Restatement of Judgments, §§ 43, 49, 50, 63 & 70. *fn8" The rationale for this rule is stated as follows in Section 63 of the Restatement of Judgments (Comment a.): *fn9"

 'Where in the second action the plaintiff bases his claim on the same right on which he based his claim in the prior action and on the same violation of duty by the defendant, it is not a different cause of action merely because he asserts different grounds for recovery from those which he asserted in the prior action. He is barred by the prior judgment, not only where the grounds alleged in the second action were alleged in his complaint in the prior action and he failed to prove them, but also where he failed to allege these grounds in his complaint and therefore was precluded from proving them in the prior action.

 'The rule has the effect of coercing the plaintiff to present all of his grounds for recovery in the first proceeding, which is similar to the coercion upon the defendant to produce all of his defenses to the claim set up by the plaintiff (see § 47). As the defendant cannot after judgment for the plaintiff attack the judgment because of new defenses to the plaintiff's claim even though he was not aware of them at the time of the judgment, so likewise, after a judgment for the defendant, the plaintiff cannot, subject to the conditions stated herein, allege new grounds for recovery on the same cause of action upon which the judgment was rendered against him, even though he was not aware of these grounds when he brought the original action.'

 This language is particularly applicable in this case since the hearing judge suggested to counsel for plaintiff at the pre-trial conference in the prior action on December 19, 1955, that he broaden the scope of his complaint by amendment prior to the hearing, which was then set for January 12, 1956. Counsel for plaintiff elected not to change his complaint and now asks consideration of types of relief which he could have requested in the prior action. *fn10"

 Final Order

 It is ordered that Al Farkas, the defendant, is enjoined and restrained from divulging, by any means whatsoever, the contents of any telephone conversations of Tony Voci, plaintiff, which were intercepted between July 19, 1954, and July 21, 1954, inclusive, except such divulging of these conversations as is required by said defendant, in his capacity as a police officer of the City of Lancaster, Pennsylvania, in the prosecution of crimes solely within the power of the Commonwealth of Pennsylvania. The foregoing exception shall cover, but shall not be limited to, such divulging as is necessary in the prosecution of the trial of the plaintiff, Tony Voci, in the pending proceeding (No. 161, June Term 1954, in the Court of Quarter Sessions of Lancaster County) in the courts of the Commonwealth of Pennsylvania. The prosecution of the case in such pending proceeding in the courts of the Commonwealth of Pennsylvania shall include the following: conferences with associate and superior police officers, conferences with the District Attorney or a duly designated member of his staff, and testimony before any duly constituted judicial entity of the Commonwealth of Pennsylvania.

 It is further ordered that the prayer of the complaint that the tape recording of the above-mentioned telephone conversations be destroyed is denied.

 Each party shall pay his own costs.

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