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RICHARD A. GUTMAN v. DOLORES GIORDANO (04/28/89)

filed: April 28, 1989.

RICHARD A. GUTMAN, ESQUIRE, APPELLANT,
v.
DOLORES GIORDANO, V. VALLEY GREENE APARTMENTS, ADDL. DEF.



Appeal From Order Entered May 2, 1988, Court of Common Pleas, Civil Division, Philadelphia County No. 2892 April Term, 1987

COUNSEL

Richard Gutman, Philadelphia, for appellant.

Mark S. Keenheel, Philadelphia, for Giordano, appellee.

Cavanaugh, McEwen and Popovich, JJ.

Author: Cavanaugh

[ 384 Pa. Super. Page 79]

Appellant, Richard A. Gutman seeks reversal of an order which granted summary judgment against him. We conclude

[ 384 Pa. Super. Page 80]

    that summary judgment should not have been entered and therefore, we reverse.

The history of the present matter is that in 1981 appellee, Dolores Giordano, filed a complaint in equity against Richard A. Gutman and Valley Greene Apartments, Inc. The suit concerned the sale of Gutman's stock in Valley Greene, a cooperative apartment house, to Giordano. Gutman counterclaimed seeking damages for the unpaid balance on the purchase agreement for the apartment. The matter came to trial in December, 1986, but after one day of trial the case was continued and returned to the civil trial list. It was again listed for trial on March 19, 1987 and when Giordano failed to appear at the call of the trial list, a judgment of non pros was entered by the calendar judge. No action was taken by Giordano or Gutman to remove the non pros. On April 20, 1987, Gutman commenced an action against Giordano for the balance of the purchase price under the sales agreement which had been the basis for his counterclaim to the original suit. Giordano filed an answer, new matter and counterclaim and subsequently filed a motion for summary judgment. The trial court entered the order which dismissed Gutman's complaint and this appeal followed.*fn1 The reasoning of the trial court in granting the summary judgment was that by reason of Gutman's failure to appeal from or seek to open the judgment of non pros of March 19, 1987, the order became res judicata and could not therefore be the subject of another suit.

Curiously, neither party on appeal had addressed the application of this doctrine to the present case. Our view, nevertheless is that res judicata does not apply to the non pros as a bar to a subsequent suit involving the same subject matter. We have recently stated:

Res judicata applies when, in two actions, there is (1) an identity in the thing sued upon (2) identity in the cause of action (3) identity of persons and parties to the action, and (4) identity of the capacity of the partners suing or sued.

[ 384 Pa. Super. Page 81]

The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the parties had an opportunity to appear and assert their rights. In making this evaluation our courts have looked to the basic issues and the harm sought to be remedied in the separate suits. For a prior class action judgment to bar an action on the basis of res judicata the parties must be identical in both suits; the prior judgment must have been entered by a court of competent ...


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