Appeal from order of court of Common Pleas, Civil Division, of Allegheny County, No. 3508 of 1971, in case of Ralph Thompson v. Karastan Rug Mills.
R. Radakovich, with him Alan Frank, and Frank and Radakovich, for appellant.
Hayes C. Stover, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J.
[ 228 Pa. Super. Page 262]
This is an appeal from the order of the court below granting defendant's motion for judgment n.o.v. following a jury verdict in favor of the plaintiff.
Wayne-Weil Company, a retail carpet outlet, sold and installed wall-to-wall carpeting in appellant's home. When payment was not forthcoming, Wayne-Weil instituted an action in assumpsit in the Common Pleas Court of Allegheny County. Appellant raised the defense that the carpet was defective and unmerchantable. Mr. Thompson, further counter-claimed for damages incurred during the installation of the carpets. After taking testimony, the trial court, sitting without a jury, found in favor of Wayne-Weil, stating in its opinion, that the evidence demonstrated that the carpet was "of proper quality and merchantability." Appellant did not appeal from the final order of court, but instead, brought a second action against the manufacturer-supplier, Karastan Rug Mills, alleging that the rugs were delivered in a defective condition.
Although Karastan was not a party in the first action, it raised by way of New Matter the previous adverse judgment against the appellant, noting that "[p]laintiff in this action is bound by the ruling in No. 4137 to the effect that the carpeting is not defective, and may not try this issue anew in the instant litigation." Thereafter, on September 2, 1971, Karastan filed a motion for judgment on the pleadings for reason that "[p]laintiff is barred from maintaining the present action by res judicata. . . ." Said motion was denied, and the matter was listed for trial. After an unsuccessful arbitration proceeding, the appellant appealed
[ 228 Pa. Super. Page 263]
to the common pleas court, where a jury returned a verdict in his favor in the amount of $2300.00. Karastan then moved for judgment non obstante veredicto on the ground that "[t]he issue before the jury in the present case [whether the carpets were defective] had been previously litigated . . . in a proceeding in which the above plaintiff was a party." In its motion for a new trial, Karastan alleged that the trial court had erred in failing to instruct the jury that "the plaintiff was barred from recovery in the present case by the doctrine of collateral estoppel."*fn1 (Emphasis added). Despite Karastan's reference to both the doctrine of collateral estoppel and res judicata, the court en banc, in granting defendant's motion for judgment n.o.v. addressed itself only to the question of res judicata. Recognizing that previous case law had not held that res judicata applied where the parties were different, the court nevertheless concluded that res judicata barred the present suit saying in its Opinion: "Inasmuch as the prior litigation . . . decided as a fact, that the carpeting was of proper quality and merchantability, it is our opinion that the within litigation by Thompson against Karastan, the within defendant, alleging the same carpeting to have been defective and unmerchantable, was barred by the findings in the prior litigation."
Despite what we believe to be a correct ruling by the court below in granting Karastan's motion for judgment n.o.v., the apparent confusion of the parties and the equivocal basis for the court en banc's decision
[ 228 Pa. Super. Page 264]
demand a clarification of the distinct concepts of res judicata ...