Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1967, No. 826, in case of Chamberlin of Pittsburgh, Inc. v. Fort Pitt Chemical Company, a corporation.
Homer W. King, for appellant.
Beverly A. Gazza, with her James M. Arensberg, and Tucker, Arensberg & Ferguson, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs, Hoffman, and Cercone, JJ., dissent.
[ 237 Pa. Super. Page 530]
Appeal is taken to this Court from an Order of the Allegheny County Common Pleas Court granting appellee's motion for judgment on the pleadings.
On January 20, 1967, appellant filed a complaint in assumpsit against appellee in the Court of Common Pleas. As subcontractor on a construction job for the Pittsburgh Housing Authority, appellant had purchased a caulking compound from appellee. The prime contractor, M.S.I. Corporation (hereinafter MSI), informed appellant that the caulking work would have to be redone; and faced with this possible claim, appellant filed suit, alleging breach of warranty of fitness and asking for damages in the amount of fifteen thousand ($15,000.00) dollars.
On May 26, 1967, the prime contractor sued the Pittsburgh Housing Authority in Federal Court for full payment on the construction contract.*fn1 The Housing Authority counter-claimed and filed a Third-Party Complaint against appellant, which in turn filed a Fourth-Party
[ 237 Pa. Super. Page 531]
Complaint against appellee. In the latter complaint, appellant claimed damages of fifteen thousand ($15,000.00) dollars for the allegedly defective and inadequate caulking compound. On September 28, 1972, this federal action was dismissed with prejudice pursuant to stipulation entered into by all parties in interest.*fn2
On October 18, 1973, appellant amended its Common Pleas complaint by changing the ad damnum clause to claim only the amounts of money which MSI retained from appellant because of alleged faulty caulking, viz., $3,733.50. Thereafter, on December 18, 1973, appellee moved for judgment on the pleadings, alleging that the federal action's stipulation estopped appellant from proceeding in Common Pleas Court. Said motion was granted.
Appellant argues that it and appellee were not involved in the settlement negotiations which resulted in the dismissal with prejudice of the Federal Court claim. Appellant further claims that the stipulation upon which its suit in Federal Court was dismissed makes no reference to the suit in Common Pleas Court and does not affect it. It is true that the stipulation in question makes no reference to the action in the Court of Common Pleas but it together with the order of the court dismissing appellant's claim against the appellee with prejudice does affect appellant's claim.
The pertinent allegations of appellant's Common Pleas complaint and its Federal Fourth-Party Complaint are virtually identical. In both it alleges that appellee supplied a butyl caulking compound which was warranted to be fit for the particular job. In both, appellant alleges that said compound was not adequate in that it "shrank, cracked and pulled ...