(b) it is expressly directed that final judgment shall be entered in favor of the defendant, George J. Deal, and against the plaintiff, William A. Moore, since it is expressly determined that there is no just reason for delay (see F.R.Civ.P. 54(b)); and
(c) the undersigned states, pursuant to 28 U.S.C. § 1292(b), that the order in section (a) above, denying the Motion for Summary Judgment as to defendant J. Lucas, involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from such order may materially advance the ultimate termination of this litigation.
APPENDIX TO MEMORANDUM OF MARCH 24, 1965, IN CIVIL ACTION NO. 26533
The undersigned is of the opinion that the policies underlying the principle of res judicata may require a finding that the plaintiff, Moore, is precluded from bringing the present action against Lucas by reason of the stipulated judgment entered in Civil Action No. 24142. Lucas, the driver of the truck involved in the accident from which both causes of action arose, was not a party to Civil Action No. 24142, although plaintiff's claim in that action was based in part on the negligence of Lucas in operating the truck.
Lucas was also present and testified in both jury trials in Civil Action No. 24142.
Although Lucas was not an adversary in Civil Action No. 24142, the issue of Moore's negligence, decided conclusively in that action by the stipulated judgment, is identical with the issue presented in the present action; i.e., if Moore was negligent, he is not entitled to recovery against either Deal or Lucas in Civil Action No. 26533. Moreover, Moore, the party against whom the claim of preclusion is being asserted, was a party to the prior adjudication and had the opportunity to present evidence and contest the issue of fault fully in that action. The fact that the present action is against a new adversary may not justify taking the court's time to give Moore a second opportunity to litigate the very issue determined adversely as to him in the first action. The undersigned believes that it would be very helpful to the disposition of many cases in this court if the Court of Appeals could decide the application of the principles of res judicata and collateral estoppel to the situation presented by this record as to defendant J. Lucas.
If it were not for the decisions of the United States Court of Appeals for the Third Circuit cited at page 1006 above, the Pennsylvania cases cited in those decisions, and the provisions of the Restatement of Judgments cited above (especially § 96 and Comment a), the undersigned would enter judgment for the defendant Lucas on this record.