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SPERO A. BRANOFF v. STELLA FITZPATRICK (05/13/83)

filed: May 13, 1983.

SPERO A. BRANOFF, SR. AND JUDITHA BRANOFF, APPELLANTS
v.
STELLA FITZPATRICK



No. 151 Harrisburg, 1980, Appeal from Order of the Court of Common Pleas, Civil Action, of Dauphin County at No. 5994 S 1979.

COUNSEL

Neil J. Rovner, Harrisburg, for appellants.

Bernadette Barattini, Harrisburg, for appellee.

Cercone, President Judge, and Spaeth, Cavanaugh, Wieand, McEwen, Cirillo and Montemuro, JJ. Wieand, J., files dissenting opinion. Cirillo, J., joined dissent.

Author: Cavanaugh

[ 313 Pa. Super. Page 563]

On December 24, 1977, the appellants, Spero A. Branoff, Sr. and Juditha Branoff were involved in a motor vehicle accident with appellee, Stella Fitzpatrick, which allegedly caused property damage as well as personal injuries to Spero A. Branoff, Sr. In October, 1978, appellant, Spero A. Branoff, Sr. commenced an action in trespass against the appellee, alleging property damage only. This case was referred to arbitration and the arbitrators awarded Mr. Branoff $639.00 and costs in that action and this case has been terminated.

[ 313 Pa. Super. Page 564]

On December 18, 1979, the appellants commenced a second action of trespass based on the automobile accident, this time alleging personal injuries and loss of consortium. The appellee filed preliminary objections in the nature of a demurrer, on the ground that the second action was barred by reason of appellant's failure to assert all claims arising out of the accident of December 24, 1977, in the prior trespass action. The court below, in an order by Caldwell, J., sustained the appellee's demurrer and dismissed the complaint. The appellants have appealed to this Court from the order of dismissal.

The court below relied on Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968) in dismissing the appellants' complaint. In that case, the plaintiff brought an action to recover for property damages only and an arbitration panel found in favor of the plaintiff. He subsequently brought an action in trespass for personal injuries arising out of the same accident. The Supreme Court held that the action for property damages barred a later trespass action between the same parties for personal injuries. The court stated at 430 Pa. 480, 481, 243 A.2d at 427 (1968):

When personal injuries to a person and damages to his property arise from the same cause and the same tortious act, the person who has sustained such personal injuries and property damage must seek recovery for both in a single action and, if separate actions are instituted for each category of damage and a judgment is rendered in one of such actions, the entry of such judgment has the effect of res judicata and bars recovery in the other action. Such is the view of a substantial majority of jurisdictions in the United States, and to this view Pennsylvania has long adhered. See: Fields v. Philadelphia Rapid Transit Co., 273 Pa. 282, 117 A. 59 (1922); Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951); Saber v. Supplee-Wills-Jones Milk Co., 181 Pa. Super. 167, 124 A.2d 620 (1956).

In Spinelli the Supreme Court stated that the answer to the question whether the action for property damages must

[ 313 Pa. Super. Page 565]

    be joined with that for personal injury "turns on whether there is only one cause of action or more than one cause of action." Spinelli v. Maxwell, 430 Pa. 478, 481, 243 A.2d 425, 427. The rationale of Spinelli was that the wrongful act, i.e., the negligence that caused the damages constituted one cause of action and therefore the property damage and the personal injury claim had to be joined in one action. As to the meaning of "cause of action": "[i]t has been held that the cause of action in a negligence action is the 'negligent act or acts which occasioned the injury: . . .'" Sanchez v. City of Philadelphia, 302 Pa. Super. 184, 448 A.2d 588, 589 (1982).*fn1 However Spinelli, supra, was decided prior to Pennsylvania's No-Fault Act which has changed the traditional concept of "cause of action" in cases to which it applies. In the instant case, we must determine whether the cause of action for property damage and personal injuries is one cause of action under the Pennsylvania No-Fault, Motor Vehicle Insurance Act, Act of July 19, 1974 P.L. 489 No. ...


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