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YEE ZIA v. WIMMERSBERGER

July 29, 1982

YEE C. ZIA
v.
JOANNE WIMMERSBERGER, PAUL MAGRA, JOSEPH WICKERT



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This diversity action was filed by plaintiff Yee C. Zia against Joanne Wimmersberger, Paul Magra, and Joseph Wickert claiming damages for their alleged perjury arising from the defendants' testimony in Zia v. United States, Civil Action No. 76-831. The defendants have moved to dismiss or in the alternative for summary judgment. For the reasons hereinafter stated, the defendants' motion will be treated as one for summary judgment and will be granted.

 The defendants, in support of their motion for summary judgment, contend (1) that the plaintiff has not stated a cause of action since Pennsylvania does not recognize an action in tort for damages based upon perjured testimony; (2) that plaintiff is collaterally estopped from alleging a cause of action based on facts which were tried and found against him in Zia v. United States ; and (3) that the statute of limitations has run as to any and all causes of action which may be considered as having been pleaded by the plaintiff in his pro se complaint.

 This is a pro se complaint and under the law it must be construed most favorably to the plaintiff. Cf. 2A Moore's Federal Practice, 8(a)(2) ยง 8.13; DeWitt v. Pail, 366 F.2d 682 (9th Cir. 1966). In construing Mr. Zia's complaint in a manner most favorable to him, it appears that Mr. Zia on the basis of diversity jurisdiction has claimed damages based upon his allegation that the defendants who were witnesses in Zia v. United States gave perjured testimony. The Court has also considered Mr. Zia's complaint as though it is claiming that the defendants were negligent or that they committed an intentional tort and as though it is stating a cause of action alleging a violation of his rights under the United States Constitution.

 In determining whether the plaintiff in this diversity action has a cause of action for damages based upon alleged perjury, we must look to the Pennsylvania law since the alleged perjured testimony was given at a trial in Pennsylvania. There is no civil action for perjury in Pennsylvania. Ginsburg v. Halpern, 383 Pa. 178, 118 A.2d 201 (Pa. Sup. 1955). As pointed out by Dean Prosser, the policy of "complete freedom of expression," has resulted in immunity from civil liability" conferred upon witnesses whether they testify voluntarily or not and even though their testimony is by affidavit or deposition. The resulting lack of any civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say." W. Prosser, The Law of Torts, pp. 777-78 (4th ed.).

 A review of the amended complaint filed in this case shows that the plaintiff is seeking damages from the defendants for injuries which he suffered as the result of an incident which served as the basis of his claim in Zia v. United States, C.A. No. 76-831. On January 30, 1979, the Magistrate who heard the testimony in Zia v. United States found the following facts as to the incident on May 20, 1974: The plaintiff was called into the Social Security office in Bristol, Pennsylvania to explain an apparent discrepancy in his age that appeared in the Social Security files. There was a misunderstanding and a commotion ensued between the plaintiff and the employee of the Social Security office concerning the age discrepancy. The defendant, Mr. Wickert, intervened and asked that Mr. Zia either calm down, leave, or move to a conference room where he would not disturb the office. Mr. Zia walked to the conference room where he complained of dizziness and chest pains. The defendant, Joanne Wimmersberger, on the instructions of Mr. Magra, called an ambulance. The ambulance arrived and took Mr. Zia to a hospital. After reviewing the record of the trial, these findings of fact were affirmed by this Court on July 8, 1980. On November 19, 1981, the Court of Appeals for the Third Circuit affirmed the judgment.

 Since this Court is also considering that the plaintiff's pro se complaint is alleging a cause of action for negligent or intentionally tortious conduct against the defendants on the basis of diversity jurisdiction and since we are also considering that the plaintiff's pro se complaint is alleging a cause of action based upon the defendants' violation of his rights under the United States Constitution, we will now determine whether the law of collateral estoppel precludes the plaintiff from recovering on such causes of action.

 Although it is generally stated that in a diversity action the collateral estoppel rule of the state is applied in those situations where a state court judgment is being considered, it appears that the federal rule of collateral estoppel should be applied where the judgment being considered is a judgment of a federal court. In this case the judgment is a federal court judgment. As stated in Johnson v. United States, 576 F.2d 606 (5th Cir., 1978),

 
Aerojet ( Aerojet General Corp. v. Askew, 511 F.2d 710 [5th Cir., 1974] holds that in diversity cases we are to apply federal res judicata principles to prior federal judgments.
 
One of the strongest policies a court can have is that of determining the scope of its own judgments. It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified and enforced by the state acting through its own judicial establishment. But we think it would be a strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights.

 Since the prior action of Zia v. United States was a Federal Tort Claims action, and prosecuted in federal court, the federal rules as to collateral estoppel will apply to determine its preclusive effect upon the present action. Under federal law in making the determination as to whether the doctrine of collateral estoppel is applicable, four criteria must be satisfied:


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