for summary judgment based upon the one-year statute should be denied.
Plaintiff's reliance on Funk is misplaced. In Funk, plaintiff filed a civil rights action based upon 42 U.S.C. § 1983 twenty-three months after the statute of limitation began to run. Funk argued that his complaint supported causes of actions based on false arrest, malicious prosecution, abuse of legal process, false imprisonment, assault and battery, and invasion of privacy. The issue before the court on defendant's motion to dismiss was whether Funk's complaint had stated a cause of action governed by a two-year statute of limitation. The Funk court ruled that the plaintiff had stated a cause of action for abuse of process, which tort under Pennsylvania law would be governed by "no less than a two-year period of limitation." 251 F. Supp. at 600. As for the plaintiff's contention that the complaint also stated a cause of action for false imprisonment, the court in Funk, although finding it unnecessary to consider the issue, stated that if the facts supported a cause of action for false imprisonment, the one-year statute (12 P.S. § 51) would apply. Actually, the dictum in Funk lends support to the conclusion that in the case sub judice, the false imprisonment claim, coupled as it is with the false arrest cause of action, is governed by the one-year period of limitation provided for in 12 P.S. § 51.
Plaintiff did not in the statement of facts in his pretrial narrative refer to the unlawful conviction of February 10, 1971 and the unlawful search of the car and the apartment as causes of action. The pretrial narrative specified false arrest and false imprisonment as the basis for plaintiff's claim. The brief filed by plaintiff in opposition to the motion for summary judgment did not refer to the two claims of unlawful search and unlawful conviction.
The conclusion to be drawn from this course of conduct is that plaintiff has dropped these causes of action from this lawsuit. Local Rule 5 p. II(C)(2) provides in pertinent part: "Within 60 days after pretrial has been invoked, counsel for plaintiff shall serve a narrative written statement of the facts that will be offered . . . at trial upon all counsel of record and file a copy with the Clerk of Court." Were this court to consider the two omitted causes of action, we would ignore Local Rule 5 pt. II(G) which provides in pertinent part: "Failure to fully disclose in the pretrial narrative statement or at the pretrial conference the substance of the evidence as to liability . . . proposed to be offered at trial, will result in exclusion of that evidence . . . [the] only exceptions will be (1) matters which the court determines were not discoverable at the time of the pretrial conference, (2) privileged matter, and (3) matter to be used solely for impeaching purposes."
Local Rule 5 pt. II(J) provides further in pertinent part: "After a case has been pretried, no amendment to any pretrial statement or other pleadings shall be presented to the Clerk for filing unless authorized at the pretrial conference." We have been urged by the Circuit Court of Appeals to uphold the integrity of our pretrial procedure. Shuber v. S. S. Kresge Co., 458 F.2d 1058 (3d Cir. 1972).
The intent and purpose of these local rules and Rule 16, Federal Rules of Civil Procedure, would be frustrated by having this court consider legal theories which were not raised in the pretrial procedure. And whether to consider a legal theory not disclosed during pretrial is a matter peculiarly within the discretion of the district court judge, Ely v. Reading Co., 424 F.2d 758 (3d Cir. 1970); Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972).
Under these circumstances, it is apparent that the two causes of action are no longer presented by counsel as a basis for defendants' liability. We conclude that these claims are not appropriate for our consideration.
The application of the doctrine of collateral estoppel also precludes this court from considering the merits of the two causes of action -- the unlawful search and unlawful conviction. Plaintiff does not claim that his guilty plea entered on February 11, 1972 was involuntary or unknowing. Plaintiff claims the unlawful search and the state conviction of February 9, 1971 as the basis of his causes of action. When the state conviction was overturned and a new trial granted, any constitutional violation would appear to have been redeemed.
The concept of collateral estoppel (or issue preclusion) has been developed generally in the context of sequential civil cases where it has been employed to preclude the relitigation of issues actually decided in former judicial proceedings. Collateral estoppel has also been recognized in civil litigation following a prior criminal proceeding by the United States Supreme Court. For example, in Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S. Ct. 408, 414, 95 L. Ed. 534 (1951), an anti-trust proceeding, the court stated that the standard to determine if litigation of a question in a civil suit is barred by a prior criminal proceeding is whether the question was "'distinctly put in issue and directly determined' in the criminal prosecution. * * * In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment."
In Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970), the plaintiff had been convicted by a jury of conspiracy to commit burglary, burglary and larceny in a Pennsylvania state court. He then filed a pro se suit for damages under 42 U.S.C. §§ 1983, 1985 against the district attorney and three police officers of Montgomery County, Pennsylvania, alleging that they had conspired to secure his conviction by the knowing use of perjured testimony. The district court dismissed the action on defendant's Rule 12(b) motion principally on the ground that plaintiff was collaterally estopped from bringing the civil rights action because the issue of the veracity of witnesses had been decided against the plaintiff in the criminal trial. The Court of Appeals reversed because the district did not examine the state records and therefore did not know whether the veracity of the state's witnesses had been put in issue.
The import of Moss to the case sub judice is that the appellate court (1) acknowledged the applicability of collateral estoppel to a civil rights suit, (2) stated that the utilization of collateral estoppel is appropriate on a motion for summary judgment when the state criminal records are examined.
Similarly, the Court of Appeals, in Basista v. Weir, 340 F.2d 74 (3d Cir. 1965), considered the issue of collateral estoppel in a civil rights suit following the plaintiff's state criminal conviction, recognized the application of the doctrine, but concluded that collateral estoppel was inappropriate because the record before the district judge was incomplete.
In this case, the court has been provided by the defendants with a transcript of the proceedings in the state court when plaintiff pled guilty to the worthless check charges. All the state records have also been examined by the court. In Scooper-Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir. 1974), it was noted that "three requirements must be satisfied before collateral estoppel may be utilized:
(a) The issue decided in the prior litigation must be identical with the issue presented in the action in question;