No. 2603 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Div., Civil Sect. of Phila. County at No. 3386 Aug. Term 1980.
Roger J. Harrington, Philadelphia, for appellant.
John M. Kenny, Media, for appellees.
Spaeth, Montemuro and Van der Voort, JJ.
[ 299 Pa. Super. Page 314]
This is an appeal from an order dismissing a complaint in equity. The lower court held that the issue raised by the complaint had been disposed of in a prior action and should not be re-litigated. We affirm.
The claim that lies behind, and leads to, this appeal is a claim by appellee Peter A. Flamini under the uninsured motorist clause of his employer's policy, which was issued by
[ 299 Pa. Super. Page 315]
appellant. Before filing the complaint dismissed by the lower court, appellant filed another complaint in equity, seeking to enjoin arbitration of Flamini's claim. Appellant alleged in that complaint that it had already offered its policy limit and that there was therefore nothing to arbitrate.*fn1 The lower court, TAKIFF, J., entered an order denying the requested injunction and ordering arbitration to proceed under the rules of the American Arbitration Association, which is to say, at common law.
Appellant did not appeal Judge TAKIFF's order. Instead appellant filed the present action, this time seeking a mandatory injunction that arbitration of Flamini's claim proceed under the Arbitration Act of 1927.*fn2 Flamini's answer to the complaint included new matter, which was not replied to, pleading that the issues raised had already been litigated in the prior action. The lower court, DOTY, J., evidently with the parties' agreement, treated the answer and new matter as "in the nature of preliminary objections," Slip op. at 3, and dismissed the complaint. In his opinion, Judge DOTY said:
Petitioner [appellant] should not have started a new cause of action which is the matter before this Court. The respondent [Flamini] has correctly argued that Pennsylvania Rules of Civil Procedure, Rule 1017(b)(5) provide for preliminary objections to a complaint based on the ". . . pendency of a prior action." This Court will not undertake to assume control over a matter which was originally heard by another Judge [Judge TAKIFF] of this jurisdiction. If we allowed this then the petitioner, anytime it
[ 299 Pa. Super. Page 316]
felt it had a new issue to litigate would begin a new action and attempt to have a new Judge rule in its favor. The doctrine of res adjudicata and the policy ...