No. 705 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, June Term, 1982, No. GD82-05037.
Leonard Fornella, Pittsburgh, for appellant.
Ronald G. Backer, Pittsburgh, for appellees.
Rowley, Johnson and Popovich, JJ.
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This is an appeal from an Order granting the appellees' preliminary objections and dismissing the appellant's complaint. In May of 1981, appellant, the Consolidation Coal Company, filed a complaint in equity requesting an injunction against (1) the International Union, United Mine Workers
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of America, (2) District No. 5, United Mine Workers of America, (3) Larry Cani, and (4) all those acting in concert with them. A preliminary injunction was granted which prohibited the appellees from picketing in any manner that would interfere with the business of the appellant. A hearing for a permanent injunction was then scheduled for September 15, 1981. The picketing on appellant's premises ceased shortly after the preliminary injunction had been granted, so the appellant filed a motion, on September 10, 1981, to withdraw the request for a permanent injunction. The trial judge granted this motion, noting on the Order that the action was being "dismissed as moot." Reproduced Record at 271. In March of 1982, however, appellant initiated a new action, based on the same incident, requesting compensation for damages resulting from the appellees' alleged tortious interference with the appellant's contractual relations. Appellees filed preliminary objections to which the appellant filed an answer. The trial court then heard oral arguments. The trial judge acting on his own initiative, asked whether the damages action should be precluded because of the prior equity action. He concluded that the dismissal of the equity complaint barred the appellant's subsequent suit for damages, since the equity court had the power to hear a claim for damages and the appellant had failed to raise any such claim during the equity action. In addition to his conclusion that the appellant's action for damages was precluded by the prior equity action, the trial court judge adopted three of the appellees' preliminary objections as conclusions of law. This appeal, then, is from the order dismissing the appellant's claim for damages and granting the appellees' preliminary objections. We reverse and remand.
Appellant contends that the trial court erred in dismissing the damages action and in adopting the appellees' preliminary objections as conclusions of law. Appellant raises five specific issues on appeal: 1) whether the trial judge had the authority to raise the issue of claim preclusion himself when the appellees themselves failed to raise this issue; 2) whether
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the dismissal of the equity action constituted a final judgment on the merits which would bar a subsequent civil action for damages; 3) whether the appellant's state law claim for tortious interference with contract is preempted by federal law, thus depriving a state court of jurisdiction to resolve the dispute; 4) whether a permanent severance of an employment relationship must be shown before one can recover under a theory of tortious interference with contractual relations; and 5) whether the appellees' conduct was privileged such that they are immune from a suit for damages arising out of their picketing.
Appellant first contends that the trial judge erred in raising the claim preclusion on his own. The trial judge admits in his opinion that it was the court which raised this question first.
The appropriate procedure for raising a question of res judicata is contained in Pa.R.C.P. 1030. Res judicata is an affirmative defense which "shall be pleaded in a responsive pleading under the heading 'New Matter.'" Pa.R.C.P. 1030. The appellees did not plead res judicata in this manner. Nor did the appellees specifically mention res judicata as one of their preliminary objections. Thus, it was procedurally incorrect for the trial judge to challenge appellant's damages action after the appellees had failed to plead res judicata as an affirmative defense.
Despite this procedural defect, it would not serve judicial economy to end the inquiry at this juncture. If we were to remand this case at this point so that the parties could cure this procedural defect, this Court might have to review the substance of the same res judicata question at a later date. This type of dilemma existed in the case of Brown v. Hahn, 419 Pa. 42, 50, 213 A.2d 342, 346 (1965), wherein the Pennsylvania Supreme Court said:
Nothing is to be gained by sending the parties back to the trial court to set their procedural house in order before
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coming once again to this Court with the identical controversy.
See also Callery, et al. v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968); Ziemba v. Hagerty, 214 Pa. Super. 381, 261 A.2d 342 (1969). Rather than to delay unnecessarily this appeal, then, we will not review the substance of the res judicata question here presented.
Appellant maintains that it was error for the trial court to conclude that the dismissal of the equity action precluded the appellant from bringing a subsequent claim for damages arising out of the same incident. This Court has determined that an action at equity can have a res judicata effect upon a subsequent action at law:
Because an adjudication in equity is as conclusive as a judgment at law . . . it is of no consequence that the earlier suit was brought in ...