Cir. 1963); Sires v. Cole, 320 F.2d 877 (9th Cir. 1963); Kostal v. Stoner, 292 F.2d 492 (10 Cir. 1961); Stift v. Lynch, 267 F.2d 237 (7th Cir. 1959); Gay v. Heller, 252 F.2d 313 (5th Cir. 1958); Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957); Kenney v. Fox, 232 F.2d 288 (6th Cir. 1956); Morgan v. Sylvester, 220 F.2d 758 (2d Cir. 1955); Perkins v. Rich, 204 F. Supp. 98 (D.Del.1962), aff'd 316 F.2d 236 (3d Cir. 1963); Rhodes v. Houston, 202 F. Supp. 624 (D.Neb.1962), aff'd 309 F.2d 959 (8th Cir. 1962); Hardy v. Kirchner, 232 F. Supp. 751 (E.D.Pa.1964); Ellis v. Wissler, 229 F. Supp. 196 (E.D.Pa.1964).
We hold that the defendants Fagan, Smith, Martin, Boyle and Duggan are immune from suit on the basis of the above-cited authorities and that the complaint thus fails to state any claim against them upon which relief can be granted. A more difficult problem arises with respect to the claimed immunity of defendant Strauss, who, it is alleged, participated in a non-privileged capacity in the investigation of plaintiff and the institution of proceedings against him. Cf. Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965). Actually, we deem it unrealistic to so artficially compartmentalize the activities of a district attorney - particularly the first assistant - so as to say that his activities in interrogating a suspect are non-privileged while those activities expended in trying the case or endeavoring to sustain a conviction upon direct appeal or in collateral proceedings are privileged. All such activities should be equally privileged against damage suits. Resolution of this issue as to Strauss is unnecessary, however, since he has available to him other valid defenses, hereinafter discussed, which require a disposition of this action in his favor.
THE AFFIRMATIVE DEFENSES
Issues relating to the operation of statutes of limitation, the doctrine of res judicata, and related affirmative defenses may be determined upon preliminary motion. Watson v. Commercial Credit Corporation, 341 F.2d 915 (5th Cir. 1965); Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964); Crawford v. Zeitler, 326 F.2d 119 (6th Cir. 1964); Garelick v. Goerlich's, Inc., 323 F.2d 854 (6th Cir. 1963); Swan v. Board of Higher Education of City of New York, 319 F.2d 56 (2d Cir. 1963); Baldwin v. Loew's Incorporated, 312 F.2d 387 (7th Cir. 1963); Spampinato v. City of New York, 311 F.2d 439 (2d Cir. 1962); Lambert v. Conrad, 308 F.2d 571 (9th Cir. 1962); Levy v. Hayward, 101 U.S.App.D.C. 232, 248 F.2d 152 (1957); Suckow Borax Mines Consol. v. Borax Consolidated, 185 F.2d 196 (9th Cir. 1950); Wilson v. Hinman, 172 F.2d 914 (10th Cir. 1949); Rhodes v. Meyer, 225 F. Supp. 80 (D.Neb.1963); Rhodes v. Van Steenberg, 225 F. Supp. 113 (D.Neb.1963), aff'd 334 F.2d 709 (8th Cir. 1964); Sherwin v. Oil City National Bank, 18 F.R.D. 188 (W.D.Pa.1955), aff'd 229 F.2d 835 (3d Cir. 1956); Conard v. Stitzel, 225 F. Supp. 244 (E.D.Pa.1963); Hoffman v. Wair, 193 F. Supp. 727 (D.Ore.1961).
(A) The Limitations Bar
In accordance with the rule requiring the application to Civil Rights Act damage suits of the most analogous relevant state (statutes) of limitations, we hold that any federal claim that plaintiff may have had for the alleged illegal arrest and detention and related indignities sustained during the period prior to his conviction in November, 1959 is barred by the two-year limitations statute applicable to false imprisonment suits
and the one-year limitations statute applicable to false arrest suits.
The claim for damages sustained as a result of the alleged assault perpetrated by Botula is not in issue here inasmuch as Botula is not a party to this suit. Were he named as a defendant and served accordingly, he would undoubtedly have the benefit of the two-year personal injury limitations statute with respect to such claim.
Plaintiff contends that his November, 1959 convictions and July, 1960 sentencing effected such consequential damages as the destruction of his business enterprise and reputation. While this allegation cannot be accurate since plaintiff was convicted of and sentenced for other unrelated crimes in February, 1960,
even assuming its truth, we nonetheless hold that any federal claim arising out of the criminal proceedings, convictions and sentences here pertinent is barred by the one-year statute of limitations governing malicious prosecution claims.
Since plaintiff cites Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933), he obviously presses here common law claims for false imprisonment, false arrest, assault and battery and malicious prosecution. If we possess pendent jurisdiction of such claims here under the Hurn doctrine, such claims are a fortiori barred by the pertinent statutes of limitation.
Actually, of course, plaintiff presently has no claim for malicious prosecution inasmuch as the prior criminal proceedings which would serve as the foundation for such a claim have never terminated in his favor. Such favorable termination is the sine qua non of a malicious prosecution claim. Woodyatt v. Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962); Sicola v. First National Bank of Altoona, 404 Pa. 18, 170 A.2d 584, 87 A.L.R.2d 1044 (1961); 23 P.L.E. Malicious Prosecution § 5; Prosser, Torts, § 113, pp. 856-859 (3d ed. 1964).
Logically, if plaintiff now has no common law claim for malicious prosecution arising out of the criminal proceedings assailed here, neither should he be deemed to have any related federal claim as a result of such criminal proceedings and the resulting convictions, sentencing and imprisonment. Such a claim, if valid, should by analogy be deemed to accrue only at some later date when and if he is vindicated and such convictions upset through a successful utilization of conventional post-conviction channels of relief. Cf. Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963); Horn v. Bailie, 309 F.2d 167 (9th Cir. 1962); Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958); Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957); McShane v. Moldovan, 172 F.2d 1016 (6th Cir. 1949); annotation, 30 A.L.R.2d 1128. If, however, plaintiff has properly cognizable, accrued federal claims arising out of the criminal proceedings instituted on March 3, 1959, then it must necessarily be that such claims are barred by the most analogous relevant limitations statute - i.e., the one-year Pennsylvania malicious prosecution statute. Cf. Corcoran v. Yorty, 347 F.2d 222 (9th Cir. 1965); Watson v. Commercial Credit Corporation, supra; Crawford v. Zeitler, supra; Spampinato v. City of New York, supra; Lambert v. Conrad, supra; Thompson v. Heither, 235 F.2d 176 (6th Cir. 1956); Conard v. Stitzel, supra; Hoffman v. Wair, supra; Weiner v. City & County of Philadelphia, 184 F. Supp. 795 (E.D.Pa.1960). It is plain that the goal of the alleged conspirators was achieved - and that the last overt act effectuating plaintiff's imprisonment as a result of the criminal proceedings complained of was committed - not later than the date of plaintiff's sentencing (July 12, 1960). The allegedly continuous and successful efforts by the defendants since that date - in supposed collusion with various jailors and state judges - to thwart and harass plaintiff's attempts to overturn the convictions cannot be regarded as additional overt acts in furtherance of the original conspiracy so as to interminably toll the statute of limitations with regard to the alleged fraudulent procurement of the convictions, but must rather be regarded as elements of continuing damage accruing from the culmination of the alleged conspiracy on July 12, 1960.
Thus viewed, such post-sentencing activity by the defendants does not prevent the application of the one-year statute of limitations to any alleged misbehavior by the defendants in connection with the institution, progress, and culmination of the pertinent criminal proceedings. Such misconduct on the part of defendants as is alleged relative to the post-sentencing period relates to activities of defendants Boyle, Smith, Duggan and Martin, all of whom in such connection were acting within the scope and under the protection of the quasi-judicial immunity concept applied herein. Plaintiff's views concerning interference with his mail have heretofore been expressed. Gaito v. Prasse, 312 F.2d 169 (3d Cir. 1963), cert. denied 374 U.S. 816, 83 S. Ct. 1711, 10 L. Ed. 2d 1039. His present complaint states no justiciable claim as to the frivolous and wildly conclusory allegations that certain of the defendants have thwarted and interfered with his post-conviction access to the courts. It does not even appear from the complaint that the named defendants were in a position to inflict such harm upon the plaintiff.
(B) Prior Adjudication; Criminal Trial
Certain of the defendants contend that the standing judgments of conviction rendered pursuant to the criminal prosecution of November, 1959 are conclusive here as to issues litigated and adjudicated therein. We agree. Hurlburt v. Graham, 323 F.2d 723 (6th Cir. 1963); Goss v. State of Illinois, 312 F.2d 257 (7th Cir. 1963); Curtis v. Tower, 262 F.2d 166 (6th Cir. 1959); Blackmon v. Wagener, 253 F.2d 10 (6th Cir. 1958); Thompson v. Heither, supra; Crawford v. Lydick, 179 F. Supp. 211 (W.D.Mich.1959), aff'd 280 F.2d 426 (6th Cir. 1960); Watson v. Devlin, 167 F. Supp. 638 (E.D.Mich.1958), aff'd 268 F.2d 211 (6th Cir. 1959); In re Kravitz Estate, 418 Pa. 319, 211 A.2d 443 (1965); Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624, 625 (1965); Pennsylvania Turn. Com'n v. United States F. & G. Co., 412 Pa. 222, 194 A.2d 423 (1963); 1B Moore, Federal Practice, para. 0.418, pp. 2703, 2711 (2d ed. 1965). The foregoing authorities indicate, we believe, that rigid adherence to the "mutuality of parties" concept
is not favored. Accordingly, we conclude that the issues of (1) plaintiff's guilt; (2) the veracity and credibility of plaintiff and his brother, Frank, vis-a-vis Gregory Scorzafave, Jr., Ralph B. Miller, Samuel Strauss and Dennis Timpona with respect to such testimony given in the criminal prosecution as was pertinent to and implicitly resolved in the jury verdicts; and (3) the authenticity and reliability of scientific proof placed in evidence on behalf of the Commonwealth were all litigated and adjudicated adversely to plaintiff in the 1959 criminal trial and that the subsisting judgments of conviction rendered pursuant to the jury verdicts therein prevent the relitigation of such issues here. The issue raised as to claimed suppression of evidence, which, obviously the criminal court jury could not have specifically resolved, nevertheless depends to some extent upon the credibility and veracity of the parties hereto as to the evidence actually before the jury. Moreover, plaintiff is entirely uninformative about the nature of any relevant, admissible and exculpatory evidence known of by any of the defendants at the time of the 1959 trial, not introduced in that trial, and not disclosed to or known of by plaintiff and his counsel. His complaint, otherwise highly specific, becomes very vague and conclusory at that particular juncture. Under the circumstances, we cannot take any cognizance of this claim. Pugliano v. Staziak, 231 F. Supp. 347 (W.D.Pa.1964), aff'd 345 F.2d 797 (3d Cir. 1965); cf. Gainey v. Brotherhood of Railway & Steamship Clerks, Etc., 313 F.2d 318, 323 (3d Cir. 1963); Temple v. Pergament, 235 F. Supp. 242 (D.N.J.1964), aff'd 343 F.2d 474 (3d Cir. 1965). It would appear to be plaintiff's intention to prove a case here by cross-examining the defendants and certain Allegheny County Crime Laboratory technicians and by having a jury draw fantastic inferences "by reading trial transcripts and passing judgment upon whether the prosecuting attorney and defense attorney acted conspiratorially"
with each other and in concert with the Commonwealth's witnesses. We know of no authority that requires this court to be the forum for such a travestic denigration of existing state court criminal judgments. We might observe that Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963), relied upon in Basista v. Weir, supra, involved perversions of law in a court of inferior jurisdiction. Cf. Hurtt v. Stirone, supra, 206 A.2d at 627.
(C) The Prior Adjudication In This Court
It is, of course, settled law that a decision on the merits, final and unreversed, is res judicata as to a subsequent similar suit even if the rationale of the original adjudication is asserted to be legally incorrect. It is also well settled that dismissal of an action for failure of the complaint to state any claim upon which relief can be granted generally constitutes such a decision on the merits. Sarelas v. Sheehan, 353 F.2d 5 (7th Cir. 1965); Rhodes v. Jones, 351 F.2d 884 (8th Cir. 1965); Rhodes v. Meyer, supra, 225 F. Supp. at pp. 105, 127, aff'd 334 F.2d at p. 716. An attempt to evade application of this principle by naming additional defendants in the subsequent action has no effect, usually, so long as the plaintiff is attempting to relitigate the same causes of action and the same issues. Cf. Helmig v. Rockwell Manufacturing Company, 389 Pa. 21, 131 A.2d 622 (1957); Sopp v. Gehrlein, 236 F. Supp. 823 (W.D.Pa.1964).
Be that as it may, it is not altogether clear that the dismissal of the suit at Misc. No. 3323 can be accorded conclusive effect in this action. See: Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965); Armstrong v. Rushing, 352 F.2d 836 (9th Cir. 1965); Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964); Harmon v. Superior Court, 307 F.2d 796 (9th Cir. 1962); 1B Moore, supra, para. 0.409, p. 1006. Since we believe that there exist sufficient other reasons for dismissing this suit, we do not feel compelled to rule upon the effect of such prior litigation.
We hold further that plaintiff has stated no federal claim upon which relief can be granted with respect to the attempted assertion of liability against the defendants arising out of reliance upon claimed retrospective application of cases such as Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A.L.R.3d 1205 (1964); Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); and Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961). Plaintiff's state court convictions did not become final until certiorari was denied on February 19, 1962. Cf. Linkletter v. Walker, 381 U.S. 618, 622, 14 L. Ed. 2d 601, 85 S. Ct. 1731, f.n. 5, (1965). Whatever relevance that fact may have in the context of a habeas corpus petition, however, it has none here. To hold that the exercise of state police and prosecutive power in a manner perfectly valid at the time of its exercise may render the law enforcement authorities involved liable for damages through possible retrospective application of a subsequently enunciated constitutional interpretation would scarcely accord with the requirement that "Section 1979 [ 42 U.S.C. § 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions."
Cf. Striker v. Pancher, 317 F.2d 780 (6th Cir. 1963).
Nor - bearing in mind that the 1959 trial and the convictions rendered pursuant thereto require this court to accept the authenticity of Scorzafave's hospital identification - does it appear that the procedures employed in securing such identification deprived plaintiff of any constitutional rights. Cf. Rigney v. Hendrick, 355 F.2d 710 (3d Cir. 10/15/65, reh. den. 12/9/65), aff'g Morris v. Crumlish, 239 F. Supp. 498 (E.D.Pa.1965). The critical wounds sustained by Scorzafave (the only eye-witness to the crime) and Frank Gaito and the hospital setting evidently demanded the employment of such procedures. The alleged illegal arrest does not vitiate the criminal convictions; the length of plaintiff's alleged illegal detention did not per se violate the Fourteenth Amendment; and, of course, the McNabb-Mallory rule does not rise to the dignity of a constitutional prohibition. Finally, it appears that various of the alleged deprivations of constitutional rights could well have been explored during the criminal prosecution by plaintiff's competent counsel of choice who, for reasons probably of a strategic nature, selected only certain grounds for defending before the jury. Cf. Henry v. State of Mississippi, 379 U.S. 443, 447-448, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); Nelson v. People of State of California, 346 F.2d 73 (9th Cir. 1965); Commonwealth ex rel. Santiago v. Myers, 419 Pa. 326, 214 A.2d 206 (1965); Commonwealth ex rel. Johnson v. Myers, 419 Pa. 155, 213 A.2d 359 (1965); Commonwealth ex rel. Adderley v. Myers, 418 Pa. 366, 211 A.2d 481 (1965); Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965). We might add that nothing in the statements elicited from Frank Gaito and used at the subsequent criminal trial can even arguably be deemed to implicate plaintiff as Frank's partner in crime. Plaintiff's tortured interpretations of such statements and of Strauss' and Timpona's testimonies relating thereto cannot benefit him here. We have explored all 753 pages of the criminal trial transcript so heavily relied upon by plaintiff in his complaint and brief and find nothing therein that would permit a jury in a Civil Rights Act suit to conclude that such a dastardly conspiracy and sham prosecution as plaintiff conjures up governed the conduct of that trial or operated to deny plaintiff a fair trial.
There is no diversity of citizenship. Hurn v. Oursler, supra, does not require a federal court to retain jurisdiction of allegedly pendent state common law claims where the federal claims are disposed of upon preliminary motion. Cf. McFaddin Express, Incorporated v. Adley Corporation, 346 F.2d 424 (2d Cir. 1965); O'Neill v. Maytag, 339 F.2d 764 (2d Cir. 1964); Wojtas v. Village of Niles, 334 F.2d 797 (7th Cir. 1963); Rogers v. Provident Hospital, 241 F. Supp. 633, 639 (N.D.Ill.1965). Since plaintiff's federal claims are thus being disposed of, we see no point in retaining jurisdiction over any allegedly related non-federal claims.
An appropriate order will be entered denying the plaintiff's and defendants' motions to strike and granting the defendants' motions to dismiss.