the parties involved in the two actions are in privity with respect to the matters at issue. Commonwealth ex rel. McClintock v. Kelly, 287 Pa. 139, 134 A. 514 (1926). Consequently, while it is true that the only defendants in this action who were also named in the Delaware action are the defendants Maes and the Foundation itself, there is identity of parties since the additional defendants in this action and the defendants named in the Delaware action are in privity with respect to the alleged improprieties suggested by the plaintiff in this action. Parenthetically, we note that the plaintiff does not appear to seriously contend otherwise.
In attempting to ascertain whether there is an identity of subject-matter it will be necessary to compare and contrast what was involved in the Delaware proceedings with what is involved in the action now before this Court. A comparison of the contentions made in the original complaint and the first amendment in the Delaware action, both of which were disposed of on their merits, with those made in this action indicate that the paramount issue in both is control of this Foundation. What underlies both actions is an attack on a course of conduct by the officers and directors of this Foundation whereby they obtained control. In the original complaint in the Delaware action the present plaintiff attacked the transfer of assets, whereas in this case the transfer of assets becomes the culmination of a conspiracy. In the first amendment to the complaint in the Delaware action the present plaintiff alleged that the transfer of assets was prompted by threats of litigation. The same contention is made in this action, but now it becomes part and parcel of a conspiracy. It was also alleged in the first amendment that the threats of litigation referred to included a challenge to the right of the Board of Directors to amend the by-laws to grant officers ex officio membership. The same contention is made in this case, but again it becomes part and parcel of a conspiracy. It is, therefore, the very same course of conduct which underlies the conspiracy charged in this action which was at issue before the Delaware Courts. It is for this reason that the requirement that there be identity of subject-matter is satisfied and we cannot permit the plaintiff to draw us to a different conclusion by the simple expedient of superimposing allegations of conspiracy upon this very same course of conduct.
The plaintiff also contends, however, that identity of subject-matter is not alone a sufficient test. She contends that the true requirement is that the causes of action in the two suits must be the same. Undoubtedly, the subject-matter involved in the two actions must be the same, for otherwise there could not be an identity of the causes of action; but, the plaintiff contends, the same transactions or state of facts may give rise to distinct or successive causes of action, and a judgment on one will not bar a suit on another. Therefore, the plaintiff contends, the judgment in the Delaware proceedings, although between the same parties and even assuming it relates to the same subject-matter, is not a bar to this action, since the cause of action alleged in this action was not disposed of on its merits in the Delaware proceedings.
To support her contention in this regard the plaintiff has seized upon the refusal of the Delaware Courts to permit the proposed amendment to the complaint. Plaintiff apparently concedes that the proposed amendment contained charges of conspiracy which are similar, if not identical, to the charges of conspiracy made in this action. But since the Delaware Courts refuse to permit the proposed amendment to add a cause of action involving conspiracy charges not contained in the original complaint, or the first amendment to it, she contends that the Delaware proceedings do not preclude her from litigating the same cause of action in this Court.
If we define cause of action in terms of the legal theory upon which the plaintiff is proceeding in this action, then it may well be that the plaintiff's present cause of action is not identical with the cause of action adjudicated on its merits in the Delaware proceedings. On the other hand, if we define it in terms of the specified conduct of the defendants upon which the plaintiff relies to enforce her claim then the plaintiff's present cause of action is identical with the cause of action previously adjudicated. However, "* * * [the] inquiry is * * * not always as to the identity of the immediate cause of action * * *", Commonwealth ex rel. McClintoch v. Kelly, supra, at page 144, 134 A. at 516, but:
"* * * whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties actually had an opportunity to appear and assert their rights. * * *" Hochman v. Mortgage Finance Corporation et al., supra, 289 Pa. at 263, 137 A. p. 253. See also Wallace's Estate, supra, 316 Pa. at 153, 174 A. 397; Helmig v. Rockwell Manufacturing Company, 389 Pa. 21, 31, 131 A. 2d 622 (1957).
Thus, for purposes of res judicata, emphasis is placed not necessarily on determining the identity of the causes of action, but on a comparison of the ultimate and controlling issues which are before the Court in this proceeding with those which were disposed of on their merits in the prior proceeding.
The gist of both the Delaware action and this action is control of this Foundation. In both actions the plaintiff contends that the defendants improperly obtained control primarily by granting executive officers ex officio membership and by transferring a portion of the assets of the Foundation to appease the blood descendants of its founder. The Delaware Courts considered these contentions on their merits and held that the control thereby acquired by the defendants was proper. These same contentions are again before this Court and constitute the principal "ultimate and controlling issues" in this action. Merely by intertwining allegations of conspiracy with these very same contentions does not make these issues any the less ultimate and controlling. Helmig v. Rockwell Mfg. Co., supra. We hold, therefore, that the elements for the application of the doctrine of res judicata have been satisfied and that the decision of the Delware Courts, holding in effect that control of this Foundation was properly acquired by the present defendants or their privies, is a bar to the plaintiff's contention that the present defendants or their privies conspired to improperly obtain control.
The matters concluded by the application of the doctrine of res judicata include "* * * not only the issues actually adjudicated in the first proceeding, but also those which might have been raised and passed upon * * *". Hochman v. Mortgage Finance Corporation et al., supra, 289 Pa. at page 264, 137 A. at page 253.
This is not to suggest that each and every issue which might have been raised and passed upon in the prior proceeding is concluded, but only those issues which in some way relate to what was actually adjudicated in the prior proceeding and which were not raised are concluded. The primary issue in both actions is control. For the most part, the conduct which caused control to be placed in the hands of these defendants was expressly passed upon by the Delaware Courts and, as previously stated, the Delaware proceedings are res judicata as to it. To the extent anything additional is alleged in this action in support of the contention that these defendants improperly conspired to obtain control of the Foundation, these are matters which might have been raised and passed upon in the Delaware proceedings and, therefore, are also barred by the application of the doctrine of res judicata. This includes additional grounds or theories for recovery, such as the plaintiff's contention that the course of conduct to obtain control which was at issue in the Delaware proceedings now constitutes a conspiracy to obtain control, and additional remedies or prayers for relief not included in the prior proceeding whichever were alleged for the first time in this proceeding.
It also encompasses allegations of fact known at the time the prior proceedings were instituted, but not included in support thereof. Wallace's Estate, supra. On this latter point, we consider especially relevant the finding of the Delaware Chancery Court, at page 174 of the Delaware Record, in which the Supreme Court concurred at page 192, that the present plaintiff knew most of the facts which she alleged in support of her conspiracy charges at least when she first amended the complaint and yet failed to include them. In summary, therefore, we hold that the plaintiff's contention that these defendants or their privies improperly conspired to wrest control of this Foundation from the family descendants of its founder is barred by the doctrine of res judicata.
We do not mean to suggest that the plaintiff has not injected into this action a few factors in support of her allegations of conspiracy to obtain control which were not alleged in the original complaint and first amendment in the Delaware proceedings. But we cannot permit this plaintiff to "split [her] cause of action and try part of it at one time and part at another"; she is not "at liberty to prosecute [her] rights piecemeal by presenting part only of the available grounds and reserving other parts for another suit if the first fails. * * *" Wallace's Estate, supra, 316 Pa. p. 154, 174 A. p. 400.
We recognize that because of the impact the application of this doctrine has on any case it should be applied sparingly. But this is a case which well illustrates the need and purpose for properly applying the doctrine of res judicata. The administration and management of this Foundation has been the subject of controversy since the death of its founder in 1953. It has been placed in issue once before the Delaware Courts in a piecemeal fashion by repeated attempts to amend the original action and it is now at issue before this Court. That this has affected the Foundation is evident from the affidavits filed by the only members who are heirs of the founder other than the present plaintiff, who have refused to join with her in the present action, but have filed their affidavits in support of the defendants' motions. Therein they aver that such protracted litigation will adversely affect efforts to secure directors with recognized public and civic standing and will be detrimental to the public interests served by the Foundation.
At page 16 of plaintiff's original brief, we find the following:
"The crux of the instant case is the deliberate scheme by Maes and the other officers of the Foundation to wrest control of the Foundation from the descendants of William Donner and thereafter to exploit the assets of the Foundation for their own benefit through excessive compensation, unnecessary brokerage commissions and improper grants of the Foundation's funds." (Emphasis added)