Appeal From the Judgment entered November 17, 1975 of the Court of Common Pleas of Northampton County, Pennsylvania, Civil Action, Law Division at No. 101 May Term, 1975. No. 600 October Term, 1976.
Wesley M. Wasylik, Bethlehem, for appellants.
No appearance entered nor brief submitted for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 244 Pa. Super. Page 488]
This is an appeal from an order of the Court of Common Pleas of Northampton County granting appellee's motion for judgment on the pleadings. The sole issue presented in this appeal is whether a prior judgment on a jury verdict in favor of the appellee in an assumpsit action brought by appellee acts as a bar to a separate assumpsit action brought by appellant against appellee, arising out of the same contract, and pending at the time appellee brought its action. Because we agree with appellant that the prior judgment is not a bar to the instant action, we reverse the order of the lower court and remand for a determination of appellant's cause of action on its merits.
Appellants, Chester and Dolores Sobol, filed a complaint on May 3, 1974, in Northampton County in which they alleged that appellee, Will Allen Builders, Inc. failed to backfill a foundation as called for in a contract between the parties. Appellee filed a timely answer and on December 19, 1974, commenced a separate action in Northampton County alleging that appellant breached both the aforementioned contract and an additional work authorization agreement. After appellant filed a timely answer to the second action, the two actions were consolidated and went to trial on January 27, 1975.
After one and one-half days of trial, the trial judge declared a mistrial and appellants herein, the Sobols, petitioned to amend their complaint to conform to the facts. This petition was denied by the court and the Sobols discontinued their initial action.
[ 244 Pa. Super. Page 489]
On May 30, 1975, the action of Will Allen v. Sobol, which was not discontinued, went to trial and the jury awarded Will Allen the sum of seven hundred thirty-four dollars ($734.00). Said sum was substantially allocated by the jury for the additional work authorization agreement, but not for the basic work done pursuant to the contract.*fn1
On June 9, 1975, appellants, the Sobols, filed a new complaint in assumpsit alleging that appellee "excavated and constructed the aforesaid foundation in an unworkmanlike and unprofessional manner . . . thus making the home uninhabitable." This complaint began the case of Sobol v. Will Allen which is now before our court.
On July 1, 1975, appellee filed an answer and new matter and, on August 19, 1975, appellee moved for judgment on the pleadings in the instant case on the theory that the judgment in the case of Will Allen v. Sobol was a bar to the current action on grounds of res judicata. On November 17, 1975, Judge ...