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argued: January 6, 1983.


NO. 444 PHILADELPHIA 1981, Appeal from the Order Entered February 7, 1981, In the Court of Common Pleas of Philadelphia County, Civil at No. 753 October Term, 1980.


Gilbert E. Toll, Philadelphia, for appellants.

Ralph J. Teti, Philadelphia, for appellee.

Spaeth, Beck and Johnson, JJ. Johnson, J., concurs in the result. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Beck

[ 314 Pa. Super. Page 197]

In this appeal, three retired Philadelphia police officers, Howard Schultz, Robert P. Kopsitz and Charles Dittmer, are appealing from the lower court's sustaining of Preliminary Objections by appellee, the City of Philadelphia, to the suit in assumpsit brought by the officers against the city.

Initially we note that an order sustaining Preliminary Objections is a final order and appealable under 42 Pa.C.S. ยง 742, so that jurisdiction of this Court is established on these grounds. Nevertheless, 42 Pa.C.S. 762(a)(4) confers exclusive appellate jurisdiction in the Commonwealth Court for civil matters arising under any municipality. Since no objection has been filed to our jurisdiction, Pa.R.Appel.P. 741(a) operates to perfect the jurisdiction of this Court, and Pa.R.Appel.P. 752 confers discretion upon us to hear the appeal or to transfer it. Commonwealth v. Sensi, 287 Pa. Super. 452, 430 A.2d 691 (1981), Jost v. Phoenixville Area School District, 267 Pa. Super. 461, 406 A.2d 1133

[ 314 Pa. Super. Page 198]

(1979). In this case, in the interest of judicial economy, we exercise our discretion to resolve the issues on appeal in this tribunal.

Appellants allege that the Police Department of the City of Philadelphia required them to work overtime hours, in excess of their regular work week. Up until 1964, the City of Philadelphia elected either to pay them for their overtime hours or to give them compensatory time, i.e. time off with pay, on an hour for hour basis. In June 1965 the city adopted certain civil service regulations which limited the amount of compensatory time which appellants could accumulate to 120 hours maximum. Despite the new regulations, the city required the officers to work overtime, so that each accumulated 600 hours of compensatory time. When appellants retired, the city refused to pay them for compensatory time exceeding 120 hour limitation, even though some of that compensatory time was accumulated prior to the effective date of the new regulations, i.e. June 4, 1969.

When the suit in assumpsit was initiated,*fn1 the city filed Preliminary Objections alleging that the suit was barred under the doctrine of lis pendens. They claimed that Fraternal Order of Police v. Rizzo et al., September Term 1977, no 3922 was in progress and that its results would determine the rights of the parties in the action brought by the three officers. The court sustained the Preliminary Objections on the grounds that the parties, the rights asserted, and the relief sought were the same in both cases. Commonwealth ex rel. Lindsley v. Robinson, 30 Commw. 96, 372 A.2d 1258 (1977).

Between the time that the lower court sustained appellee's Preliminary Objections and the present, the pending suit has been tried and appealed. The Court of Common Pleas, Philadelphia County, found for Rizzo, and the Commonwealth

[ 314 Pa. Super. Page 199]

Court affirmed. Fraternal Order of Police v. Rizzo et al., 68 Commw. 560, 449 A.2d 860 (1982). Appellees now argue that although the appeal is technically moot (insofar as the other action is no longer pending) it is efficient to resolve the issues of the appeal on the grounds of res judicata, and we agree.

The doctrine of res judicata holds that a final judgment on the merits is conclusive of the rights of the parties and bars subsequent action on the same claim or cause of action. The rule expedites results of litigation, establishes finality, and protects parties from vexatious, repetitious litigation. Exner v. Exner, 268 Pa. Super. 253, 407 A.2d 1342 (1979). The essential inquiry is 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. Notoro v. Estate of Hyer, 239 Pa. Super. 10, 361 A.2d 766 (1976).

The law of this Commonwealth dictates that the application of res judicata requires a concurrence of four conditions: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Dunham v. Temple University, etc., 288 Pa. Super. 522, 432 A.2d 993 (1981), Bearoff v. Bearoff Bros. Inc., 458 Pa. 494, 327 A.2d 72 (1974).

The case upon which appellee relies for the application of res judicata Fraternal Order of Police v. Rizzo, supra, meets the criteria established by the law. Because of some of the facts are different in the two suits, we examine Rizzo in some detail in order to explicate the essential similarity.

In Rizzo, the issue was whether three city officials, Frank L. Rizzo, Mayor, Hillel S. Levinson, Managing Director, and Joseph F. O'Neill, Commissioner of the Police Department, had breached the 1971 arbitration award affecting the rights of policemen employed by the city. The trial court in Rizzo found that 1957 Civil Service regulations imposed a maximum of 120 hours of compensatory time for all city employees whose annual salary was above a certain rate.

[ 314 Pa. Super. Page 200]

In 1964, a Police Department directive amended the regulations so that policemen above the rank of lieutenant could accrue up to 600 hours of compensatory time, but recognized only 120 of those hours at the policeman's retirement, when terminal leave and pension benefits were calculated.

Until 1971, all police personnel worked a forty-two hour week. The arbitration award of 1971, the interpretation of which was the principal issue in Rizzo, provided in part:

Request 9: All employees shall enjoy a forty hour work week.


1. Commencing July 1, 1971, all hours of overtime worked by an employee (below the rank of Captain), in excess of eight hours per day, or in excess of forty (40) hours per week, shall be paid at the rate of one and one-half times the regular rate of pay.

2. Compensatory time for the rank of Captain and above shall be determined on the basis of a forty hour week.

In 1977, the F.O.P. sought arbitration of a claim that the city had breached the 1971 arbitration award. The parties agreed to postpone the requested arbitration while the F.O.P. filed a complaint in mandamus relating to the overtime claim. The trial court concluded that the 1971 arbitration award was intended only to reduce the number of regular hours in a work week for various ranks, and did not alter the amount of compensatory time that could be accumulated. The award changed the point at which the calculation of overtime began, but it did not change the total number of hours that an individual could accumulate as compensatory time. In other words, the Court of Common Pleas in the 1977 suit determined that the 1965 Civil Service regulations remained in effect, unchanged by the 1971 award. The mandamus action for overtime pay was therefore dismissed, and the Commonwealth Court affirmed the dismissal.

The appellate opinion makes clear that ordinarily when an arbitration award conflicts with Civil Service regulations,

[ 314 Pa. Super. Page 201]

    the regulations must be overruled. Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969). In the 1971 arbitration award, however, the arbitrator was fully aware of the applicable Civil Service regulations, and acknowledged that the regulations, in this instance, were controlling:

Request 20: All employees above the rank of Sergeant shall be paid immediately for all compensatory time to which they are entitled.

Award: Request is denied. This item is controlled by Civil Service Regulation 6.1132.

We now come to the question before the Court in this appeal: Is the claim of these appellants res judicata by the holding in Rizzo? We believe that it is.

The identity of the thing sued for:

The F.O.P. in Rizzo and appellants sued for monetary compensation for overtime accrued. The relief sought is the same in both cases.

The identity of the parties:

Appellants argue that they are not included in the suit brought by the F.O.P. because the F.O.P. did not comply with Pa.R.C.P. 1701 et seq., the Class Action rules, which became effective September 1, 1977, prior to the initiation of their suit on September 29, 1977. This argument ignores the essential role of the F.O.P. as a collective bargaining representative of the police who are employed by the City of Philadelphia, as found by the court below. Each of the three appellants is a member of the F.O.P. In the instant case, appellants have sued the City of Philadelphia. The F.O.P. sued three individuals who were all clearly representatives and agents of the city. We therefore hold that the parties were identical in both actions.

Identity of quality or capacity of the parties:

The F.O.P. in Rizzo sued on behalf of all retired police officers. Appellants sue on their own behalf as retired police officers. We hold that there is identity of quality or capacity.

[ 314 Pa. Super. Page 202]

    by the holding in Rizzo, which establishes that the civil service regulations imposing a 120 hour maximum in the case of retirement pay prevail over conflicting agreements concerning working hours and compensation. We therefore conclude that the issue of whether appellants, as retired police officers, are entitled to compensation for accumulated time in excess of 120 hours earned before 1969 has been determined in Rizzo, and appellants are not entitled to a trial on the merits on this issue.

The order of the lower court sustaining appellee's Preliminary Objections is affirmed.

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