No. 1179 Philadelphia 1981, Appeal from the Order of April 30, 1981 in the Court of Common Pleas, Civil of Phila. County at No. 199 March Term 1981.
Allen L. Feingold, Philadelphia, for appellant.
John E. Schuppert, Philadelphia, for appellee.
Spaeth, Wickersham and Cirillo, JJ. Cirillo, J., files a dissenting opinion.
[ 312 Pa. Super. Page 543]
This is an appeal from an order dismissing appellant's complaint with prejudice on the ground that the claim raised is the same as the one that has already been asserted in a prior action. Appellant argues that we should reverse the order because dismissal was not justified under the doctrines of res judicata or lis pendens. We affirm.
In July 1978, Michael Epstein, appellant, was injured in a motor vehicle accident. Appellant was insured by State Farm Mutual Insurance Company, appellee, under a policy that included uninsured motorist benefits. The driver, Terrell Moore, was insured by Concord Mutual Insurance Company.
In February 1980, appellant sought to obtain uninsured motorist benefits from appellee. The claim was arbitrated and coverage was denied. Exceptions were denied on the grounds that appellant had not established his entitlement to uninsured motorist's benefits, and that in any event, his exceptions had not been timely filed. The order denying appellant's exceptions was appealed to this court on January 8, 1981. That appeal has not yet been decided.
On March 2, 1981, appellant filed a complaint against appellee seeking general and punitive damages for appellee's refusal to provide appellant with uninsured motorist coverage for the July 1978 accident. The complaint was dismissed on the ground that it raised the same claim as had already been asserted in the prior action. This appeal is from that dismissal.
Appellant's argument that this action -- the second action -- should not have been dismissed lacks merit. Both the
[ 312 Pa. Super. Page 544]
cause of action in this case and the cause of action in the prior case arise from the same occurrence -- appellee's refusal to provide uninsured motorist benefits to compensate appellant for injuries suffered in the July accident. Because both causes of action arise from the same occurrence, appellant was required by the compulsory joinder provisions of the Rules of Civil Procedure to assert them both in a single action. Thus, Rule 1020 provides: "(d)(1) If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person, . . . they shall be joined in an action against any such person in separate counts." Pa.R.Civ.P. 1020(d)(1) (emphasis added). Appellant's failure to abide by this rule -- in other words, his failure in his first action to join as a separate count the cause ...