By this date, plaintiff knew that his conversations with Gibbs were recorded. Moreover, during the trial, plaintiff alleged that defendants Sprague and Rendell had conspired against him. See Commonwealth v. Syre, 489 A.2d at 1341. Thus, plaintiff's complaint was brought more than four years after his cause of action accrued.
In Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985), the Supreme Court held that section 1983 claims are governed by the applicable state statute of limitations for personal injuries which, in Pennsylvania, is two years. 42 Pa. Cons. Stat. Ann. § 5524. The Third Circuit has applied Wilson v. Garcia retroactively unless during the two year period after the injury, a longer statute of limitations was used in similar cases. Compare Pratt v. Thornburgh, 807 F.2d 355 (3d Cir. 1986), with Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.), cert. denied, 474 U.S. 950, 106 S. Ct. 349, 88 L. Ed. 2d 297 (1985).
Plaintiff claims that the undercover surveillance and prosecution were undertaken with malice and without probable cause by the defendants. Plaintiff's claims are most closely analagous to state causes of action for illegal search, malicious prosecution, and malicious abuse of process. See Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974) (statute of limitations pertinent to the underlying substantive offense governs a conspiracy claim). The Pennsylvania statute of limitations for these claims is two years. 42 Pa. Cons. Stat. Ann. § 5524(1); see Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977); Ammlung, supra. Plaintiff's section 1983 claims, therefore, are barred by Wilson v. Garcia.
Plaintiff also claims that defendant Helen Wolf, court clerk for Judge Kubacki, tampered with several sequestered jurors during his trial. Similarly, this claim is barred by the statute of limitations.
Plaintiff claims that defendants violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. Plaintiff has not factually alleged the role of any defendant in the alleged RICO violation, ADW Inc. v. Lutheran Social Mission Society, No. 86-5427 (E.D. Pa. Jan. 6, 1987), nor has he adequately alleged a violation of the predicate offenses listed in his complaint, Odesser v. Vogel, No. 85-6931 (E.D. Pa. Nov. 5, 1986) [available on Westlaw]. Therefore, plaintiff's RICO claim will be dismissed with leave to amend this claim in good faith.
D. State Law Claims
Plaintiff asserts a laundry list of state law claims: libel, malicious prosecution, abuse of process, malicious use of process, false imprisonment, official oppression, false representation, malpractice, and the Pennsylvania Wiretapping Act as well as alleged violations of the state constitution. These claims, however, are all time barred by 42 Pa. Cons. Stat. Ann. §§ 5523, 5524. Plaintiff also asserts that defendants tortiously interfered with his right to contract with both Gibbs and the Teamsters. These claims, however, are also barred. See also Mazzanti v. Merck and Company, Inc., 770 F.2d 34 (3d Cir. 1985) (tortious interference with contract claim is governed by two-year statute of limitations during same time period as present case). Moreover, as a matter of law, plaintiff's wrongful interference with contract claim must be dismissed since this claim requires proof that the acts were taken without right or justifiable cause. See R.P. Russo Contractors & Engineers, Inc. v. C. J. Pettinato Realty and Development, Inc., 334 Pa. Super. 72, 482 A.2d 1086 (1984). Here, because plaintiff was found guilty of tampering with a witness, he can not show lack of justifiable cause on the part of defendants.
Plaintiff seeks declaratory relief under 28 U.S.C. § 2201 that his conviction was invalid. For example, he requests a declaratory judgment that the investigation and prosecution violated due process. However, declaratory relief is not available to attack a criminal conviction. Johnson v. Onion, 761 F.2d 224 (5th Cir. 1985); Sperl v. Deukmejian, 642 F.2d 1154 (9th Cir. 1981).
Plaintiff also seeks to enjoin further prosecution and disciplinary proceedings. Because of the second Pennsylvania Supreme Court decision reinstating the conviction, it appears there is no threat of future prosecution. With respect to plaintiff's request to enjoin disciplinary proceedings, it is not clear who plaintiff is seeking to enjoin or the basis for an injunction. Since I have given plaintiff leave to amend his complaint, I will also dismiss his claim for injunctive relief with leave to amend.
AND NOW, this 27th day of May, 1987, it is hereby ordered as follows:
1. Plaintiff's motion to amend the complaint to join Mark Charleston, Trustee of Penn Radio Cab, Inc., nunc pro tunc, is granted.
2. The motions of all defendants to dismiss are granted and the entire complaint is dismissed for the reasons set forth in the accompanying memorandum with leave to file an amended complaint within twenty (20) days from the date of this order.
3. Plaintiff's motion for summary judgment is denied.
4. Defendant Commonwealth's motion for summary judgment is denied.
5. Plaintiff's motion for a preliminary injunction is denied as moot.
6. Plaintiff's motion for oral argument and decision is denied as moot.