Appeal from the Order of the Court of Common Pleas of Cambria County, in the case of John Feigh v. Glendale School District, No. 1987-639.
William A. Hebe, Spencer, Gleason & Hebe, for appellant.
Christian A. Fisanick, with him, Vasil Fisanick, for appellee.
Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.
[ 118 Pa. Commw. Page 387]
John Feigh appeals here from an order of the Cambria County Court of Common Pleas which sustained the preliminary objections*fn1 of Glendale School District (Glendale) to Feigh's complaint in equity and dismissed his complaint. We reverse.
Feigh was a music instructor in Glendale's secondary music program. Glendale decided, for budgetary reasons, to eliminate its elementary instrumental music program. As a result of that action, Feigh was "bumped" by the instructor of the elementary program who had seniority over Feigh. Feigh, who was then suspended by Glendale under the provisions of Section 1124 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1124, initiated an appeal under the Local Agency Law (Law), 2 Pa. C.S. §§ 551-555, 751-754. When that appeal was denied by Glendale, Feigh appealed to the Court of Common Pleas of Cambria County which upheld his appeal. We subsequently reversed that court in Glendale School District v. Feigh, 99 Pa. Commonwealth Ct. 470, 513 A.2d 1093 (1986) (Feigh I), petition for allowance of appeal denied June 4, 1987 at 493 W.D. Allocatur Docket 1986.
On March 20, 1987, Feigh filed a civil action in equity against Glendale alleging, inter alia, that the elementary
[ 118 Pa. Commw. Page 388]
instrumental program was not eliminated and that Feigh had been informed by the president of the school board that the real reason for his suspension was "that the Board of Directors perceived him as a hard person to work with." Feigh avers that the real reasons for his suspension were ill-will, animosity, and simply a desire to see him removed as a professional employee. His equity suit in the trial court requested a mandatory injunction which would order Glendale to reinstate him to his former teaching position.
Glendale contends that Feigh's action in equity is clearly barred by res judicata. Feigh counters that res judicata does not apply here, (1) because the decision in Feigh I was obtained by fraud, and (2) the four elements essential for res judicata to apply are not present here.*fn2
It is well established that the defense of res judicata applies only where four conditions concur: identify of the thing sued upon or for, identity of the cause of action, identity of the persons or parties to the action and, identity of the capacity or quality of the parties suing or being sued. Carroll Township Authority v. Municipal Authority of City of Monongahela, 102 Pa. Commonwealth Ct. 363, 518 A.2d ...