No. 113 March Term, 1979, Appeal from the order of the Commonwealth Court at No. 2681 C.D. 1978
Daniel R. Gigler, Robb, Leonard & Mulvihill, Pittsburgh, for appellant.
Paul A. Logan, Asst. Atty. Gen., Harrisburg, for appellees.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, C. J., concurs in the result. Roberts, J., files a dissenting opinion which Larsen, J., joins.
The Commonwealth Department of Transportation desired to purchase slag, stone, or gravel for use in highway repair and solicited bids from suppliers of these materials. It specified that it would contract on a tonnage basis. Appellant, Duquesne Slag Products Company, sells air-cooled blast furnace (ACBF) slag, a by-product of the production of pig iron. Appellant desired to bid on the contract but believed its basis to be improper. It filed a complaint in equity in Commonwealth Court against Secretary of General Services Ronald G. Lench, Secretary of Transportation George Pulakos, and their successors alleging that a given tonnage of slag has a greater volume than the same tonnage of the competing materials, that contracting on a tonnage basis would not set a common standard and would deny a fair opportunity to bid on equal terms, and that the Commonwealth should be ordered to contract on a volume basis. Commonwealth Court dismissed the complaint on the basis of res judicata, 44 Pa. Commw. 380, 403 A.2d 1065 (1979). Appellant appeals this decision.
Appellant contends that appellee waived the defense of res judicata by failing to raise it in the proper manner.
Rule of Civil Procedure 1030 provides that "all affirmative defenses, including . . . res judicata, . . . shall be pleaded in a responsive pleading under the heading 'new matter' . . . ." This applies to actions in equity, Rule 1051. Appellee raised res judicata in preliminary objections. We have held that res judicata must be raised as a new matter and not in preliminary objections. Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968). In Rufo v. The Bastian Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965), we held that where the Statute of Limitations was raised in a preliminary objection rather than in an answer with new matter, the plaintiff was required to file a preliminary objection to defendant's preliminary objection and raise the procedural defect. By failing to do so, the plaintiff waived the right to object to defendant's form of pleading. Commonwealth Court made a similar ruling in a case involving res judicata. Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commw. 313, 379 A.2d 330 (1977). In the instant case, appellant did not file the required objection to appellee's preliminary objection. It therefore waived its claim that res judicata was raised in an improper manner.
We now proceed to the merits of the res judicata defense. It is based on the decision in Duquesne Slag Products Co. v. Woolworth, 62 Dauphin 265 (1951). In that case, the present appellant sued the Secretaries of Highways and Property and Supplies alleging, as here, that the purchase of slag on a tonnage rather than a volume basis was unfair and did not provide a common bidding standard when stone or gravel as well as slag might be used. The court held that the officers sued acted within their discretion. For the defense of res judicata to prevail, it is necessary that between the previous action and the present action there be identity in the thing sued on, identity of the cause of action, identity of the persons and parties to the action, and identity of the quality or capacity of the parties suing or sued. Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974). Those conditions exist here. In both actions, the
gravamen of the complaint was the alleged unfairness of purchasing slag on a tonnage basis. The same plaintiff brought both actions. The Secretary of Transportation is now responsible for the functions formerly performed by the Secretary of Highways. In both cases, the suit was against Commonwealth agents responsible for the allegedly unfair bidding standard. The ...