Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, No. 79, in case of Virgil C. Martin v. Jean Poole.
Harold B. Marcus, with him Martin J. Heiligman, and Sherr, Silverman, Warden, Moses & Marcus, and McAllister and Reif, for appellant.
Carl N. Martin, II, with him Richard L. Gerson, and Duane, Morris & Heckscher, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent.) Opinion by Hoffman, J. Watkins, P. J., dissents.
[ 232 Pa. Super. Page 266]
The sole issue presented in this case is whether a default judgment suffered by appellant, Martin, in a negligence action brought by appellee, Poole, against appellant acted as a bar to a separate negligence action brought by appellant against appellee, arising out of the same accident, and pending at the time that appellee brought its action.
On June 29, 1972, appellant and appellee were involved in an automobile accident at the intersection of 46th and Spruce Streets in Philadelphia. On December 2, 1972, appellant served appellee with a complaint in trespass alleging that he suffered personal injuries as a result of appellee's negligence. This complaint began the case of Martin v. Poole, which is now before our Court.
In June, 1973, appellee commenced a separate trespass action against appellant, Poole v. Martin,*fn1 growing out of the same incident. The complaint was served on appellant, who delivered it to his personal attorney, who in turn forwarded it to appellant's insurance carrier. The insurance company failed either to enter an appearance or file a responsive pleading to appellee's complaint. As a result, on September 20, 1973, a default judgment was entered against appellant in the
[ 232 Pa. Super. Page 267]
second suit. The insurance carrier then brought a petition to open judgment on appellant's behalf. The petition was denied by Judge Hirsh on December 12, 1973; no appeal was taken, and the case of Poole v. Martin was settled, with the judgment marked "satisfied."
On March 11, 1974, appellee moved for summary judgment in the case of Martin v. Poole, on the theory that the default judgment in the case of Poole v. Martin was a bar to the current action on grounds of res judicata. On June 3, 1974, Judge Barbieri granted the motion for summary judgment. This appeal followed.*fn2
[ 232 Pa. Super. Page 268]
"Res judicata literally means a matter adjudged or a thing judicially acted upon or decided. From long usage it has come to encompass generally the effect of one judgment upon a subsequent trial or proceeding. Two quite distinct aspects are included: first, the effect of a judgment in a subsequent action between the parties based upon the same cause of action; second, the effect on the parties in a trial on a different cause of action." McCarthy v. Township of McCandless, 7 Commonwealth Ct. 611, 615-616, 300 A.2d 815, 819 (1973) (footnote omitted; emphasis in ...