in privy with the Board and the Township. Accordingly, the court finds that the defendants to this action were in privity with the Township, a party (defendant) to the state court action.
B. The Issues Material to Defendants Are Identical
The allegation of conspiracy in a later action based upon the same material facts as were present in a prior action does not suffice to defeat the estoppel doctrine. See, Williamson v. Columbia Gas & Light Corp., 186 F.2d 464, 467-68 (3d Cir. 1950) cert. denied, 341 U.S. 921, 71 S. Ct. 743, 95 L. Ed. 1355 (1951). Cf. Riverside Memorial Mausoleum v. UMET, supra, 581 F.2d at 67 (alleging conspiracy with respect to claims adjudicated in state court was held insufficient to defeat application of res judicata).
Moreover, the fact that an issue arises in a slightly different context in the second action does not necessarily mean that collateral estoppel is inapplicable. Public Service Mutual Insurance Co. v. Cohen, supra, 616 F.2d at 708. Plaintiff's factual allegations in the federal action amount to no more than that his services were terminated by the Board after an investigation report by the Township Manager and that the Board reaffirmed the action after an appeal hearing. The claim that the individual defendants, who were all known actors in the administrative proceeding, are conspirators neither succeeds in creating different parties nor in creating different issues.
Plaintiff has not alleged any new facts to support his section 1983 or 1985 claims that defendants engaged in impermissible actions violative of due process. It is not alleged that the Board violated any law or regulation when it sought and received a legal opinion on abolishing the position of Chief of Police, or when it demanded that the plaintiff drop his request to be a member of the bargaining unit which he supervised, or when Holter conducted an investigation affording plaintiff the opportunity to resign.
The Board of Supervisors is responsible for the conduct of the police department. These matters seem legitimately within the operational or administrative duties of the Board. More importantly, these were all factual issues specifically addressed and decided by the Court of Common Pleas. After scrutinizing the trial record, that Court found there was no evidence of bias in the conduct of the hearing by the Board within the concerns of Withrow v. Larkin, 421 U.S. 35, 46, 55, 58, 95 S. Ct. 1456, 1463, 1468, 1470, 43 L. Ed. 2d 712 (1975).
(Common Pleas Opinion, p. 13).
The Court of Common Pleas, the Commonwealth Court, in affirming, and the Pennsylvania Supreme Court in denying allocatur, have found that by a clear and convincing evidence standard (1) plaintiff had a full and fair opportunity to present evidence at the hearing and his decision not to do so was made with the assistance of two able counsel for reasons of strategy, i. e., he believed he could wait to present all his evidence to the Court of Common Pleas. (Common Pleas Opinion, p. 2); (2) the Board meticulously protected plaintiff's procedural and substantive rights at the hearing (Id. 12); (3) the Board made itself available to answer questions under oath as to any actual bias and plaintiff chose not to take full advantage of the offer (Id.); (4) there was no competent evidence that any predisposition, bias or prejudice existed on the part of any Board member which denied plaintiff a fair hearing (Id.); (5) the charges brought were not originally preferred by the Board but were merely presented by the Board upon information received from the Township Manager; (6) there was no bias in the conduct of the hearing (Id. 13), See, Withrow v. Larkin, supra; cf. In Re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955); (7) because it was a civil proceeding plaintiff was not entitled to discovery of witnesses' written statements obtained by the Township Manager in preparation for the hearing nor was he entitled to a bill of particulars as a defendant may be in a criminal case (Id. 14); (8) the Board of Supervisors was justified in summary dismissal action, instead of suspension pending a hearing, because under the Police Duty Manual some of the charges called for immediate dismissal without prior suspension pending adjudication and, in any event, the hearing demonstrated the dismissal action was well founded (Id. 12); (9) the commingled function of the Board in this instance was consistent with federal constitutional requirements of due process; (10) the fact that one of the supervisors sat in on some of the questioning of witnesses during the investigation was not violative of plaintiff's due process rights; (Id. 6); (11) denial of his request to sit as Chief of Police on the negotiating team of police officers during contract negotiations was not evidence of bias (Id. 6, Cf. complaint P 8(a-c); (12) one of the Supervisors circulated a letter discussing the budget that had been drafted by plaintiff but that was not evidence of bias (Id., cf. complaint P 9(a));
(13) plaintiff was not entitled to a de novo hearing as a matter of right; and (14) the Police Tenure Act was constitutional, meeting the requirements of due process and fundamental fairness.
The state courts affirmed conclusively that the evidence demonstrated a pattern of conduct by plaintiff unbecoming a police officer, that such acts would have a tendency to destroy public respect for police officers, and would undermine the confidence in the police department. (Common Pleas Opinion at 17.) See, Faust v. Police Civil Service Commission of Borough of State College, 22 Pa. Commw. 123, 347 A.2d 765 (1975); Fabio v. Civil Service Commission of the City of Philadelphia, 30 Pa.Cmwlth. 203, 373 A.2d 751 (1977).
Plaintiff has not raised a single new issue. He has not alleged that either defendant has done anything beyond the scope of his office or position.
The federal action amounts to no more than a rephrasing of the challenge made in the first action that there was a denial of due process because the body which fired him was administratively investigator, prosecutor and judge. This issue was litigated to final judgment in the state court, and now is precluded by collateral estoppel. It is of no assistance to plaintiff that he now uses the word "conspiracy" to describe the investigatory process which involved the Township Manager, the suspended police lieutenant and the four members of the Board. The Court of Common Pleas considered plaintiff's request to supplement the record and denied it on the basis that the record evidence was replete with clear and convincing evidence that plaintiff was properly discharged because of misconduct.
"(M)erely adding some facts, naming additional defendants or proposing a different theory of recovery does not convert one cause of action into a second cause of action if both actions involve the same liability creating conduct on the part of the defendants and the same alleged violation of the plaintiff's rights."