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March 18, 1981


The opinion of the court was delivered by: GILES


The issue raised by defendants' motion to dismiss is whether either under the principles of res judicata or collateral estoppel this federal action for damages for alleged violations of constitutional and statutory rights *fn1" is barred by reason of a prior state court proceeding. There, plaintiff's discharge from public employment was upheld on the same matrix of facts, according to defendants, as is involved in this action. *fn2"

 Plaintiff, Rowan P. Kelly, Jr., former township Chief of Police of Warminster Township, was charged on September 27, 1976 with 39 instances of conduct unbecoming an officer and after a public hearing was found responsible as to 29. A record was made of the administrative hearing before the Warminster Township Board of Supervisors ("Board"). An appeal was taken from the adverse decision to the Pennsylvania Court of Common Pleas of Bucks County. After reviewing the record below, the Honorable Harriet M. Mimms upheld the dismissal action by Opinion and Order dated February 8, 1978 (hereinafter "Common Pleas Opinion"). Thereafter, a timely appeal was taken to the Pennsylvania Commonwealth Court which on April 5, 1979 affirmed the ruling below (hereinafter "Commonwealth Court Opinion"). Plaintiff's Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied by order of January 3, 1980 (hereinafter "Pennsylvania Supreme Court Order"). As part of his Petition, plaintiff attached a Summary of Argument (hereinafter "Summary of Argument").

 The complaint in this court was filed on September 26, 1978. Pending the outcome of the state court appeals, proceedings in this action had been stayed by court order. With denial of the Petition for Allowance of Appeal, plaintiffs efforts here were renewed. Since matters outside the pleadings have been presented or referenced for consideration, i. e., the administrative record and the state court opinions and orders, and the parties have had full opportunity to argue on their applicability, the motion to dismiss will be treated as one for summary judgment under Rule 12(b)(6), Fed.R.Civ.Pro. See DeTore v. Local # 245, 615 F.2d 980, 983 (3d Cir. 1980). In addition, I have reviewed the record proceedings before the administrative board and the Court of Common Pleas in assessing the motion to dismiss the § 1983 action based on estoppel. Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir. 1970), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970).


 Plaintiff was hired as Police Chief in December, 1974 and was granted tenure by the Board of Supervisors a year later in December, 1975. The plaintiff promulgated a policy within the police department that all police business was to be kept confidential and any employee revealing any orders or directives of the plaintiff to persons outside the department would be disciplined. The authority to govern the police department rests with the Board. When a police lieutenant, defendant Conrad Yeager, a twenty year veteran of the department was suspended by the plaintiff, without approval of the Board, for revealing one of his "confidential" general orders, an intensive general investigation of the plaintiff's conduct in office was undertaken by the Township Manager. This led to the dismissal action. (Common Pleas Opinion, p. 1, 5-6). Plaintiff demanded an appeal hearing, pursuant to the Police Tenure Act, June 15, 1951, P.L. 586, 53 P.S. § 811 et seq., to test the truth or falsity of the charges against him. The hearing was conducted before the Board. After five days of proceedings and approximately 750 pages of transcript, the Board reaffirmed the original discharge action (Common Pleas Opinion, p. 1).

  Although plaintiff was represented at the hearing before the Board by two able attorneys, he elected not to testify or offer any evidence on his own behalf as a matter of strategy, choosing to save his evidence for an appeal to the Court of Common Pleas should the dismissal be confirmed. (Id., at 2) *fn3" The Board also made itself available to answer questions regarding allegations plaintiff may have had as to any actual bias on the part of any member of the Board. Plaintiff, however, chose not to take full advantage of the offer, again for tactical reasons. (Common Pleas Opinion, p. 12).

 Following the adverse determination before the Board, plaintiff appealed to the Court of Common Pleas of Bucks County. He claimed that the Board was inherently biased because of commingled investigatory, prosecutorial and adjudicatory functions, that the Board members were actually biased and that he was denied substantive and procedural rights at the hearing.

 Plaintiff attempted to persuade the Court of Common Pleas that he should be allowed to present evidence that might have otherwise been presented in the administrative hearing. His argument was rejected on two grounds. First, the court found that plaintiff was not entitled as of right to supplement the record. The determination of the adequacy of the record to meet the review standard of clear and convincing evidence was held to be committed to the sound discretion of the court *fn4" and in his case, the record was sufficiently full and complete to demonstrate that the dismissal action was well founded. (Common Pleas Opinion, p. 2). Second, the court concluded that plaintiff had had every right and opportunity to present substantive evidence in his own behalf and that his substantive and procedural rights had been meticulously protected (Id., at 12). *fn5" The Commonwealth Court ruled that the court below had not abused its discretion in refusing to take additional testimony under circumstances where the absence of testimony or evidence was solely the result of his own decision made with the assistance of counsel. It affirmed that there was clear and convincing evidence of misconduct by plaintiff warranting his discharge, (Commonwealth Court Opinion, p. 2-3). *fn6" It also found from the record that petitioner's due process rights were not violated in any respect. Id.

 Although plaintiff had unsuccessfully challenged the constitutionality of the Police Tenure Act below, he raised for the first time on appeal to the Commonwealth Court an equal protection of the laws argument. In effect, he contended that in having to proceed under the Police Tenure Act, township policemen were not given the same due process protections as borough policemen who are subject to the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, 53 § 45101 et seq. *fn7" The court declined to reach this last issue since it had not been properly raised in or considered by the court below. (Commonwealth Court p. 4) *fn8"

 Plaintiff then petitioned for allowance of appeal to the Pennsylvania Supreme Court raising the equal protection argument as well as all his other contentions. That petition was denied.

 Plaintiff resists the defendants' motion to dismiss arguing that (1) he was denied the opportunity to litigate fully the constitutionality and legality of his firing before either the Board or the Court of Common Pleas; (2) the Board members were actually biased against him, having conspired prior to the hearing to fire him; (3) he has sued parties who were not parties in the state court action; and (4) the equal protection of the laws issue was not raised or decided in the prior action.


 Defendants argue first that the complaint must be dismissed under principles of res judicata because it involves the same cause of action, the same set of facts and the same parties or their privies. Res judicata operates to bar "repetitious suits involving the same cause of action and rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations." Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 578, 94 S. Ct. 806, 811, 39 L. Ed. 2d 9 (1973) quoting from Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 719, 92 L. Ed. 898 (1948) and Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L. Ed. 195 (1877).

"(W)hen a court of competent jurisdiction has rendered final judgment on the merits of a cause of action, both the parties to the suit and their privies are thereafter bound not only to every matter actually raised but also as to every other admissible matter which might have been offered for the same purpose."

 Sea-Land, supra, 414 U.S. at 578-579, 94 S. Ct. at 812. See, Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980) (doctrines of res judicata and collateral estoppel held to apply to 42 U.S.C. § 1983 claims).

 For the doctrine of res judicata to apply there must be a concurrence of four conditions: (1) identity of theory sued upon; (2) identity of the cause of action; (3) identity of persons and parties to the action; and identity of quality or capacity of the parties suing or being sued. Holt Hauling & Warehousing v. Rapistan, Inc., 448 F. Supp. 991, 996 (E.D.Pa.1978); Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664 (1975). If these factors are found to exist, then the court must determine whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights. Holt Hauling & Warehousing, supra.

 Here, the state court proceeding involved the questions of whether (1) there was clear and convincing evidence warranting the Board's discharge of plaintiff, (2) whether plaintiff was denied constitutional requirement due process in the administrative proceeding by reason of the commingled functions of the Board or actual bias of its members and (3) whether, as of right, he was entitled to supplement the record on appeal to the Court of Common Pleas. Only the Warminster Township Board of Supervisors was named as a defendant and plaintiff had no alternative but to appeal the dismissal within the strictures of the Police Tenure Act. 53 P.S. § 815.

 Although Section 8 of the Local Agency Law, 53 P.S. § 11308 *fn9" does provide for a review of claims of constitutional denials, In Re Gettler, 42 Pa.Cmwlth. 415, 400 A.2d 1339 (1979), there is no provision for the making of a claim for damages for any violations of constitutional or statutory rights. While the state reviewing court has the power to reinstate a successful appellant with back pay, benefits and emoluments of office, its review of the record evidence or the supplemented record is directed entirely to affirming or modifying the decision of the local agency. 400 A.2d at 1341. Here, plaintiff seeks damages for wrongful dismissal and violation of constitutional rights. The Pennsylvania statute accorded judicial review of the administrative proceedings but plaintiff could not seek damages before either the Board of Supervisors or in the state courts on appeal from the adverse decision. Accordingly, this court holds that there is no identity of the causes of ...

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