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filed: October 22, 1982.


No. 1205 Philadelphia, 1981, No. 1314 Philadelphia, 1981, Appeal from the Orders of the Court of Common Pleas, Criminal Division, of Bradford County at No. 80-1025 CA.


Leonard J. Frawley, Assistant District Attorney, Towanda, for Commonwealth.

David B. Keeffe, Sayre, for Lewis.

Wieand, McEwen and Popovich, JJ.

Author: Popovich

[ 306 Pa. Super. Page 82]

On August 25, 1980, appellee, Albert E. Lewis, III, was arrested and charged with four counts of corrupt organizations (18 Pa.C.S.A. § 911(b)(1), (2), (3), and (4)), 113 counts of commercial bribery and breach of duty to act disinterestedly (18 Pa.C.S.A. § 4108(c)) and 113 counts of tampering with records or identification (18 Pa.C.S.A. § 4104). Similar charges were also brought against one George Ardrey, an employee of North American Car Corporation, who had allegedly awarded his company's contracts to Lewis in return for kickbacks from the income that a trucking company owned by Lewis would earn from those contracts. Mr. Ardrey was tried and acquitted of all charges. Thereafter, appellee filed a pretrial motion to dismiss the charges against him on grounds of collateral estoppel. Following a hearing on the motion to dismiss, the lower court granted appellee's motion and issued an order on May 4, 1981, dismissing all of the aforesaid counts. The Commonwealth filed a timely appeal to this court. We reverse.

The illegal payments alleged to have been made by Mr. Lewis to Mr. Ardrey are identical in days and dates to those charges for which Mr. Ardrey was tried and acquitted in

[ 306 Pa. Super. Page 83]

March, 1981. Mr. Ardrey had not been charged with tampering with records or identification. However, a conviction of appellee on these counts would also depend on the existence or non-existence of the alleged bribery scheme.

Appellee contends that, because of Mr. Ardrey's acquittal, the Commonwealth is precluded from re-litigating the factual issue of whether or not the bribery scheme existed and whether or not payments were made since those same issues were adversely determined against the Commonwealth in the first trial. "[C]ollateral estoppel is issue preclusion. It seeks to prevent relitigation of a finally litigated issue in a subsequent proceeding between the same parties whether the same or different evidence is to be introduced." Commonwealth v. Hude & Klinger, 492 Pa. 600, 617, 425 A.2d 313, 322 (1980). The requirement of mutuality of estoppel, or identity of parties, has been eroded by judicial decisions. The lower court cited Blonder-Tongue v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Oldham v. Pritchett, 599 F.2d 274 (8th Cir.1979); and Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), in holding that mutuality was not a prerequisite to appellee's use of collateral estoppel in this case. The Pennsylvania courts have also made exceptions to the technical requirement of mutuality where collateral estoppel or res judicata (claim preclusion) are sought to be invoked. See Posternack v. American Casualty Company, 421 Pa. 21, 218 A.2d 350 (1966); Stephenson v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965), cert. denied 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965); Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), cert. denied 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684 (1965).

The lower court relied extensively on Commonwealth v. Hude & Klinger, supra, where two defendants were charged with perjury for allegedly lying on the witness stand in earlier jury trials in which they both had been acquitted. The Supreme Court held that the credibility of these defendants had already been decided when they denied committing the offenses for which they were charged and the juries

[ 306 Pa. Super. Page 84]

    chose to believe these denials. In its analysis of Hude & Klinger the Pennsylvania high Court relied on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), where the United States Supreme Court held that collateral estoppel is part of the Fifth Amendment's guarantee against double jeopardy and is applicable to the states through the Fourteenth Amendment. In the instant case, the lower court felt that collateral estoppel was applicable since the issue of giving or accepting bribes is substantially identical in both the Ardrey case and the Lewiscase, and because the Commonwealth had a full and fair opportunity to litigate the issues in the earlier case before a final judgment on the merits was entered. At the May 4, 1981 hearing on appellee's motion to dismiss, the assistant district attorney assigned ...

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