Before BIGGS, Chief Judge, GANEY, Circuit Judge, and NEALON, District Judge.
The plaintiff-appellant, Cora Hubbard Williams (Mrs. Williams), brought suit in the court below on October 20, 1962 at CA62-833, pursuant to the provisions of 28 U.S.C. § 1331, basing jurisdiction upon the Constitution and laws of the United States and in particular on the Fourteenth Amendment, alleging that she was deprived of property and individual liberties without due process of law in proceedings brought and prosecuted pursuant to the Pennsylvania Incompetents' Estates Act of 1951, 50 P.S. § 1631 et seq.*fn1, in the Orphans' Court of Allegheny County Pennsylvania, in a case entitled: "In re: Estate of Cora Hubbard Williams, An Incompetent", No. 2750 of 1955 in the Orphans' Court and in a case brought by Mrs. Williams, pursuant to 17 P.S. § 41, to the Supreme Court of Pennsylvania at its Miscellaneous No. 2428. By a decree of the Orphans' Court of July 6, 1955, Mrs. Williams had been adjudged incompetent and co-guardians of her estate were appointed as will appear hereinafter.
The defendants-appellees in the case at bar are the co-guardians of Mrs. Williams' estate who, it is asserted, were erroneously appointed by the Orphans' Court of Allegheny County. The co-guardians are respectively the Commonwealth Bank and Trust Company, a Pennsylvania corporation doing business in Pittsburgh, and Mrs. Williams' daughter, Mrs. Murdoch, who resides in Haverford, Pennsylvania. In the suit at bar Mrs. Williams asserts that her daughter, Mrs. Murdoch, instituted the incompetency proceedings against her not in her best interest as required by law but against those best interests and for "the nefarious purpose of procuring the control of her multi-million dollar estate for her [daughter's] greedy and selfish unjust enrichment."
Mrs. Williams asserts that the proceedings in the Orphans' Court of Allegheny County were proceeded with ex parte*fn2 and without notice to her; that she was thus denied the right to counsel and witnesses and to be heard in advance of the judgment; that if she had been heard and had been able to subject certain expert witnesses to cross-examination, the adjudication of incompetency would not have been made by the Orphans' Court. Mrs. Williams asserts also that all adversary witnesses unduly profited financially from their participation "in the unlawful combination" to deprive her of federally guaranteed rights as alleged.
There have been other attempts to nullify the adjudication of July 6, 1955 prior to the suit at bar. In about the middle of 1961, the exact date not being set out in briefs or in the record, it appears that an application was made to the Orphans' Court for relief against the adjudication of July 6, 1955, together with a petition for adjudication of competency; that this petition was supported by statements of psychiatrists who were prepared to testify that Mrs. Williams was legally and mentally competent and did not need any guardians of her estate and would not become the victim of designing persons. In the suit at bar Mrs. Williams asserts that the Orphans' Court refused to have a hearing on this petition "without any justification whatever", unless and until the petitioner, Mrs. Williams, would submit to re-examinations by "hostile and adversary psychiatrists" who had testified against her at the original ex parte hearing. Under these circumstances, described as "perilous and precarious" in her brief in this court, Mrs. Williams abandoned her petition.
On June 19, 1962, Mrs. Williams again petitioned the Orphans' Court, at its No. 2570 of 1955, to vacate its order of July 6, 1955 appointing guardians and to grant other relief. This petition was presented to President Judge Boyle and it was prayed that a citation be issued to the Commonwealth Bank and Trust Company and to Mrs. Murdoch, the co-guardians, to show cause, if any, why the order of the court appointing guardians for Mrs. Williams should not be vacated for fraud and misconduct "of the adversaries of Mrs. Williams in obtaining it," and also because the Orphans' Court had no jurisdiction over Mrs. Williams for lack of service upon her. Mrs. Williams also sought to surcharge the co-guardians for "gifts" allegedly illegally made by them, a final accounting from them, and for an order to have her property and estate returned to her. In the suit at bar it is alleged that Judge Boyle, without issuing a citation in accordance with the usual procedure, entered an order dismissing this petition and not adjudicating any of the issues raised therein. Shortly thereafter Mrs. Williams filed a petition to the Supreme Court of Pennsylvania, which according to her allegations was "arbitrarily and summarily" dismissed by that Court without opinion or assigning reasons therefor. According to Mrs. Williams the Supreme Court refused to compel the Orphans' Court to perform the functions required of it by law.
After the dismissal by the Orphans' Court of the petition of June 19, 1962 for an adjudication of competency and for other relief, the nature of which will be more fully set out hereinafter, exceptions to the decree of dismissal on behalf of Mrs. Williams were filed by her present counsel. These, however, were withdrawn on his own motion, upon order of the Court, "with prejudice", counsel stating in his brief in this court that this was done in order to avoid delays and because "it had become convincingly evident that the entire Orphans' Court is determined that the plaintiff * * * [Mrs. Williams] in the instant case would not be afforded her right to the sought [sic] hearing on the issue of the fraud and misconduct of her adversary on the procurement of the incompetency adjudication. * * *"
In her complaint in the court below Mrs. Williams makes a number of allegations as to the actions and rulings of the Orphans' Court in the original proceeding had pursuant to the Pennsylvania Incompetents' Estates Act of 1951 and also as to the actions and rulings of the Orphans' Court in the proceedings conducted upon the filing of the petition seeking an adjudication of competency. Some of these are extremely sweeping in nature. The court and its presiding judge were accused of unconstitutional and illegal behavior. But even taking these allegations at their broadest, Mrs. Williams does not accuse the Orphans' Court of fraudulent conduct. The complaint does allege that "Judge Boyle, without right or justification, substituted his advice for that of your plaintiff's counsel and then attempted to compel the plaintiff to follow it, or be entirely deprived of her right to a Day in Court. Such unconstitutional deprivation was the result of that jurist's actions who at all times made it plain to counsel for your plaintiff, that he would consider only a petition on her behalf for 'restoration' of competency and on his own terms and conditions." But it must be pointed out also that nowhere in the complaint filed in the court below does Mrs. Williams attack the constitutionality of any of the provisions of the Pennsylvania Incompetents' Estates Act of 1951.
The complaint and the exhibits, incorporated therein by express reference (the exhibits having been made part of the record by the defendants by a so-called "Document Appendix")*fn3, assert in substance what has been set out hereinbefore. The defendants, the co-guardians, moved to dismiss pursuant to Rule 12(b), Fed.R.Civ.Proc., 28 U.S.C., on the ground that the matters raised in the complaint had already been adjudicated in favor of the defendants by the Orphans' Court of Allegheny County and by the Supreme Court of Pennsylvania, and therefore were and are res judicata.
An order was entered granting the defendants' motion and dismissing the complaint on the ground that the issues presented were res judicata. A motion for reconsideration was filed by the plaintiff, Mrs. Williams, which was denied. The appeal at bar followed.
Before embarking upon a discussion of the application of the principle of res judicata, a procedural point must be cleared up.Mrs. Williams contended in the court below and contends in this court that the issue on which the case was decided by the court below, res judicata, cannot appropriately be raised by a motion to dismiss under Rule 12(b), Fed.R.Civ.Proc. 28 U.S.C., but must be pleaded by way of an affirmative defense under Rule 8(c). It is a fact that Rule 8(c) speaks of res judicata as an affirmative defense which must be asserted under Rule 8(c). But this court in Hartmann v. Time, Inc., 166 F.2d 127, 131, 1 A.L.R.2d 370 (1948), held that the defense of res judicata might be raised by to dismiss or by an answer. See note 3 cited to the text of the Hartmann opinion. In the case at bar there was no answer. The defense of res judicata, therefore, could be asserted successfully at the early stage of this proceeding if it were valid.
As has been said, Mrs. Williams twice petitioned the Orphans' Court to vacate the order of July 6, 1955 adjudicating her to be an incompetent. The exact disposition of the first petition is not disclosed by the record but apparently its prayers were not pressed, perhaps because Mrs. Williams was unwilling to submit to an examination by psychiatrists to be appointed by the Orphans' Court. The second petition was filed by her on June 19, 1962. In it Mrs. Williams alleged fraud and conspiracy on the part of her daughter, Mrs. Murdoch, and others, to procure the original adjudication of incompetency and to secure control of her estate. She also asserted that no personal service was made upon her as required by order of court and that, had she appeared, she would have been able to establish both her competency and her ability to manage her estate. She alleged also that she was deprived of her property without due process of law in that she did not have notice of the hearing and an opportunity to be heard in advance of the judgment of incompetency entered by the Orphans' Court.
The final paragraph of the petition should be quoted here. It states: "As a result of the combination and scheme instigated by petitioner's daughter, as aforesaid, your petitioner [Mrs. Williams] has been deprived of the fundamentals of due process of law, which are notice and the right to be heard in advance of judgment in a properly constituted hearing wherein she is afforded her procedural and substantive rights. ...