Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 3117 August 1987.
Steven C. Forman, Philadelphia, for appellants.
Ernest Iannelli, Philadelphia, for appellee.
Cirillo, President Judge, and Montemuro and Popovich, JJ.
[ 379 Pa. Super. Page 557]
This is an appeal from the Order of the Court of Common Pleas of Philadelphia County dismissing the appellants' complaint under the doctrine of lis pendens, or pendency of a prior action. We reverse.
On August 19, 1987, appellants, Jody L. Singer and Bruce Singer, husband and wife, commenced an action against the appellee, Dr. Dong Sup Cha, in the Philadelphia Court of Common Pleas. Jody Singer was under the professional care of the appellee for the cosmetic and surgical treatment of facial conditions. Appellants contended that the appellee had performed surgical procedures in a negligent manner. Jody Singer sought, inter alia, damages for medical expenses, lost earnings, pain and suffering, embarrassment and humiliation. Bruce Singer sought to recover for loss of consortium. The appellee filed preliminary objections and raised, as one of the objections, the following:
Plaintiffs by an action identically captioned as the within cause, have brought suit in the State of New Jersey
[ 379 Pa. Super. Page 558]
which is the same case, parties, causes of action, rights and relief as the within action, denominated Superior Court of New Jersey, Law Division, Gloucester County; Docket No. L-93601-87 MM.
As plaintiffs have previously brought an identical prior action which is pending, the objection of lis pendens lies in defendant's favor.
R.R. at 13a. The appellants admitted that an identical action had been filed in New Jersey, but alleged that it had been instituted simultaneously with the Pennsylvania action. R.R. at 28a.*fn1 The trial court dismissed the appellants' complaint because of the pending action in New Jersey, citing Goodrich-Amram 2d § 1017(b).
Although the precedents in the area of prior pending actions as a bar to current litigation are not recent, they are nevertheless binding upon this Court. In Smith v. Lathrop, 44 Pa. 326, 84 A.m. Dec. 448 (1863), our supreme court was called upon to determine the effect of a prior action which was pending in the state of New York at the institution of the Pennsylvania action. The New York action involved the same plaintiff and defendant, as well as the same cause of action, as the Pennsylvania action. The Court found it to be "the settled law of the country, that the plea of lis pendens in another state is no defence to this [the later Pennsylvania] action." Id. at 331, 84 A.m. Dec. at . The Supreme Court addressed this area of the law again in 1938 when it rendered its decision in Thompson v. Fitzgerald, 329 Pa. 497, 198 A. 58 (1938). Thompson ...