*1 Appellant, Mutual v. Nationwide Bonfitto, Company. 1961. Before P. J., March Er- Argued Rhodes, Watkins, Woodside, Montgomery, Wright, vin, JJ. Flood,

William C. him Cassebaum, Thomas Arcorace, for appellant.

James B. McGiffert, him Teel Fackenthal, & for McGiffert, appellee. insurance company, Edward J. with him Danser for Danser, dc Brose, individual appellee.

Opinion by Wright, J., June 1961: 15, This is an appeal from the of n.o.v. judgment entry in favor of the plain- defendants after a for the verdict tiff in an assumpsit ap- action. factual situation The pears in the excerpt from the following Judge Woodeing for the court en banc:

“The facts with the three begin On brothers. March while Joseph, driving Antonio’s An- car, backed foot. over Marco’s allegedly tonio was insured Farm Bureau Com- pany, now known as Nationwide Insurance Company. after the accident Shortly spring 1952, Edgar an adjuster for al- Bell, Nationwide visited Marco and him told not to his would legedly that worry, Company for Marco’s visited pay $10,000.00. loss Bell also up Marco in the summer of 1952 and in November at which latter time Marco again he assured allegedly that would that should and Marco Company pay come to he dis- Nationwide’s office when been had his doctor. The an charged orthopedic sur- doctor, and testified geon unquestioned integrity repute, that he Marco. The never discharged however, latter, that he 1954 and testified was on June discharged on the same went to see Bell. Bell to make day refused out that period and pointed any payment 1954. expired statute of limitations had on March 20, brought “On Marco September 23, 1954, for Joseph injuries Antonio and trespass against under Antonio and New Joseph pleaded sustained. , two-year barred Matter that the limitations statute representative replied An- the action. Marco that a Joseph promised be tonio and had him that promise, compensated relying and that on said Marco, Joseph did institute Antonio suit, permitted employ the defense of .should not be for the case called statute of limitations. When parties agreed foregoing should trial the that the issue judge preliminarily heard and determined pleadings. judgment motion on the argued. “Testimony was taken and the judge found that Bell had committed never misrepresented pay anything Company and had of the statute of limitations; further, the law and, *3 (under circumstances) duty of Marco was the properly himself and to have instituted informed have period. statutory Bonfitto, Bonfitto v. suit within the judgment & 2d This was affirmed Pa. D. C. 598. per Supreme judge’s curiam Court on the trial opinion. A. 2d 277. May, years more than seven after ac-

“In against brought suit and Nationwide Marco cident, assumpsit, promissory (1) on the of a es- basis in Bell against (2) trespass, toppel, alternate and in the pre-trial a conference before Wil- At for deceit. plaintiff P. announced that J., liam G. Barthold, plead- pursue latter claim. Defendants would six-year Matter the statute limitations. ed under New jury the case to the and instructed submitted The court prom- whether Bell made issue was basic it that the jury for Marco the sum $3,564.00. found ise. judgment moved have n.o.v. Defendants already (1) the issue had been deter- grounds: (2) prior that the and statute action, mined run”. had limitations reached agree the result en court

We Notwithstanding reason. different for a but banc, defendant-appellees statement in tbe below “can take no skelter determina- or consolation from tke judgment prior tion view of tke it is our action”, prior tkat tke action did tke involved determine issue appeal. unnecessary on tkis We tkerefore deem it discuss ac- tke of tke statute of limitations in assumpsit estoppel.1 promissory tions of based on prior keading In tke under matter, tke new case, pleaded trespass instituted defendants tkat tke appellant, tke Marco tkis barred Bonfitto, replied two-year statute of Marco limitations. tkat, promises, es- because of Bell’s the defendants were topped interposing Tke defense. tke statute as a estoppel court held as matter of tkat had law expressly stating “defendants been tkat established, gave anything, pay fair committed never themselves plaintiff again, warning they not call tkat misrepresent statute and did not tke of tke law Precisely involved limitations”. tke same issue was tke concerns tke same tke instant which actors, case, No same conversations. same and tke circumstances, present ease tke trial of tke evidence was submitted at change any way determina- which would prin- inter tke Tke court en banc tion. mentioned, alia, judicata,2 ciples res of tke stare law decisis, case, *4 applicable. our they It is tkat but concluded were 1 rejected defendant-ap contention of the The court below the pellees period commenced on the date that the 'the statute rejected November, contention Bell’s 1952. It also the plaintiff-appellant begin run un of the the statute did not that promise. con til there had a of the The court below been breach equitable lay between cluded that answer somewhere these expiration contentions, the statute commenced to run “at promise”, of a time action in reasonable after Bell’s and that the instant case not within a reasonable time.

2 principles distinguished These are defined and Burke v. Corp., Pittsburgh 390, Limestone 100 375 A. Pa. 2d 595.

550 the determination view the contrary can- case. We established law prior between not countenance such an obvious inconsistency results. the two appeal,

In on earlier affirming judgment 2dA. v. 391 Pa. 137 187, supra, Bonfitto, question adjudicated the same Supreme Court 277, as be treated and the matter should presented here v. Greisser of. disposed See Thaler Brothers finally 147. Matters Pa. 79 A. 512, 229 Co., Construction reconsidered at will not be appeal passed upon prior Car- Brothers v. appeal: Bromley on second Creachen shows record 214 A. Where the Pa. 63 195. pet Co., 15, appeal, former no that was not decided on a on appeal ground second will dismissed 64 Pa. 10, McMahon's adjudication: prior Estate, all further A an end to puts A. 321. former judgment becomes of the same matter and account litigation or al- law of the which changed cannot be Points 711. tered : Pa. 79 A. Lafferty’s Estate, will reconsidered appeal a first not be decided Welker v. appeal: on a second Hazen, con- A affirmed on A. 173. decree previous 734. A. : clusive Allen v. Pennypacker, will re- court a new appellate proceeding a decision in proceeding reverse examine and issues subject matter and the same parties, which before it: Trust Girard Co. were Philadelphia, 59 A. 2d 124. brief, since as a matter law, appellant, unable in the earlier trespass case to establish such as prevent stat- estoppel running ute not effect a result limitations, may contrary an action in based belatedly instituting assumpsit Application on the same of the rule of law theory. of the case reconsideration of the prevents question of présent to his con- adversely decided previously estoppel *5 tention. See Commonwealth v. Binenstock, 77 A. 2d 628.

Judgment affirmed.

Dissenting Opinion J.: Flood, The court below I think held, correctly, that since judicata res had not been pleaded, only matter before it was the application of the Statute of Limita- tions. See Lang Superior Pa. Recht, Ct.

A. 2d 313 Both (1952). counsel acquiesced this and in their briefs and their oral argument addressed them- selves to the only proper determination date which the statute to run. began

The majority opinion has not discussed the question of the Statute of Limitations but rested has this court’s upon decision the law of I the case. respectfully dis- sent.

The Procedural do require Buies the “law of the case” to be pleaded. There are specifically reasons why defence need not pleaded while res judicata must be, these are the reasons very why is not applicable to this case. al-

(1) The defence of the case arises law of the at a later ways stage the case (Reamer’s Estate, Pa. 200 A. 35 117, 122, after (1938)), quite frequently the pleadings upon have been and is based up, made decided earlier in something judi- that same case. Bes on the other cata, is a defence that exists when hand, the suit is is based decided begun something earlier Lime- different case. Burke v. Pittsburgh stone For Corp., (1953). 100 A. 2d 595 pleaded. this reason law the case cannot be generally judicata always Bes can be.

(2) Whether the defence of the law the case is a bar the case be determined from can the record be- *6 raised. defence is the court as it exists when the

fore record upon is no the There need bring anything the other proof. of or on pleading Res way judicata, record of a differ- must be determined the hand, the court by ent case which must be before brought if and decided of the pleading upon proof, the basis if judicial notice, was in a or court, first case different the same court. The fact that the earlier suit the notice takes here, judicial the same court so that necessity of does eliminate the of place proof, pleading. the plain- we two different cases. While

Here have the issues tiff the the defendants are same, different, is en- of action are and the causes entirely are different, We at loss see what different. are tirely as the two cases can be considered one. basis tortfeasors, defendants one are the The case insurer and while the defendants in the second are the in- keep our cases its The with which agent. inflexibility fea- separate striking sured and insurer one jurisdic- Unlike some other tures law. Pennsylvania in a permit joinder we do not the insurer tions, liable over. case an additional defendant as tort as of our cases Goodrich-Amram, §2252-(a)-7. theory defendant against is that the cause action plain- of action sued on insurer is not the cause can tiff. How then we that we with say dealing are same here? does are Indeed, say that we deal- majority same What does case. is that ing say determination established the law I of this case. submit that none of respectfully majority authority propo- cases cited Four not a sition. of these cases involve decision in an in the earlier case but a second same case, that case. Creachen v. Bromley phase another 214 Pa. 63 A. 195 (1906); Co., Carpet Brothers Lafferty’s 230 Pa. Estate, 70 A. 711 Welker (1911); Hazen, 93 A. 173 Allen (1915); v. Penny packer, A. 734 495, 153 (1931).

The other cases were true res judicata cases. But none of them involved the pleading question raised here. In Burke v. Pittsburgh Limestone Corp., supra, res judicata was pleaded. judi- cases res cata was relied upon plaintiff, not the defendant, *7 and the prior decision was in one instance pleaded, the statement of and in mechanics’ claim, the other, lien in the answer to a case, rule to amend sci. the fa. Girard Trust Co. v. 359 Pa. A. 2d Philadelphia, 59 Thaler Bros. (1948); v. Greisser Construction Co., 229 Pa. A. 147 (1911). McMahon’s Finally, A. 321 Estate, was an (1906), Orphans’ Court the where pleadings are relatively informal and the matter of judicata res relied can be upon pleaded. without being

It is clear it seems to then, that me, there can be no defense here based upon the law of the case. fact, in view of the lack of of the identity parties and the I do not subject matter, believe the defence of judi- res cata could properly sustained even if pleaded. But not since it was the pleaded, question is not even before us. emphasizes

The court that when plaintiff in the tort suit as to his testifying conversations with not mention he did the fact Bell, Bell made the promise upon which he relies here. This af- may well of the credibility plaintiff fect the but it was for the they case and found in in this his jury favor. be noted that totality

It is to the conversa- and plaintiff tions between testified to in both Bell, estop is insufficient the defendants in suits, the tort raising suit from bar the statute that suit. The if and the promise misrepresentation, any, were made of the insurer, agent agent the de- 5'54

fendants in the tort suit, could not bind the they All that such or misrepresentation, latter. the insurer made could do is plaintiff, give upon plaintiff cause of action the promise against the insurer. It could no promisor, affect way plead of the tort defendants to or any statute right other of the defendants the tort right suit. binding done insurer is Ordinarily nothing by the until defendant the latter it. It ratifies ordinarily, find an be- easy, agency relationship even at insurer, adjustment tween insured efforts or Couch, Cyclopedia Law, settlement. in this there no case evidence Certainly §458. Bell de- relationship between and the tort agency such fendants. decided in the Bon-

All that was & C. 2d 598, affirmed, 10 Pa. D. fitto, affected Bell was that said (1958), nothing A. 2d 277 of Limi- plead Bonfittos to Statute right out “doubt- pointed tations. *8 from de- of or authority any knowledge less without in that dealt with the Nothing fendants”. plain- of the insurance liability company possible Bell’s statements. of tiff because v. Bon- in trespass The decision Bonfitto with Bell did plaintiff’s conversation supra, fitto, from pleading defendants the statute, tort estop the preclude plain- judicata, of res theory on the cannot, on the basis of his on the recovering tiff in the. ease of v. Na- with conversations Much is it the “law of the Co. less tionwide suit. latter in the ease” regards it as an obvious deplores what majority results. But inconsist-

inconsistency between system incident our where legal day every an ency re- verdicts with and inconsistent different find juries different are parties where suing facts same to the spect with the same negligence, reference to the same acts different or oral agreements documents the same or court. even different suits the same courts, of our The integrity fact-finding system, including put our with occasional jury system, requires up us much it. The real deplore question as we inconsistency, concerned in justice with which should be such situa- tions is which the inconsistent results is correct. This cannot be determined rule of thumb infallibly by any like the “law of the the earlier case”, always favoring decision over the later or the decision of a one, judge over the verdict of a It perhaps this reason jury. that our Supreme Court has said, regard in Reamer’s at p. and re- doctrine, Estate, supra, peated Burke v. Pittsburgh Limestone Corp., supra, at p. 394: “The doctrine of ‘the law of the case’ is that, court appellate when has considered and decided a to it question upon appeal, submitted it will not, on another subsequent phase of the same case, previous reverse its even ruling convinced though it was erroneous. This rule has been adopted fre- in our own State. quently applied It is not, however, inflexible. It does not have the of the doctrine finality of res ‘The judicata. ruling have been fol- may lowed as law the case but there is a difference be- and res tween such adherence one directs dis- judicata; supersedes and the other cretion, and compels judg- ment. other one it is words, power, submission’; in the other of Southern Co. Railway 260 U.S. 319. The rule of Clift, ‘the law of the largely case’ is one convenience and public policy, *9 both of which are served by stability judicial deci- and it must be accommodated to the sions, jus- needs of tice exercise by discriminating judicial power.” I question As see before it, only us is the opera- tion of the Statute Limitations on the alleged promise which is the basis of this suit. under my opinion

556 plaintiff’s and the cause of action pleadings proofs, prom- arose breach of the defendant’s only upon alleged discharge ise. This did not until happen plaintiff’s honor promise. his doctor and defendant’s refusal to its the action being That was within the so, clearly brought limit. statutory an assumpsit

Since stat- action, year this six ute The was not breached until applies. its said it company, through agent, insurance that would perform. question not raised the lower court whether was demanded a rea- performance was within plaintiff’s Since which sonable time. under testimony, said the insurance jury company believed, would him when he was his pay discharged by doctor, perform no until he was duty discharged. it had accepted testimony, jury, Plaintiff’s again June Until that discharged that he was on date 3,1954. performance promise. he had no demand right on performance he later that very Since asked day, to do day right the first when had the so, for demanding performance time raises no reasonable 1954, declaration June problem. Defendant’s honor de- promise, following plaintiff’s it its plaintiff’s matured cause and it action, mand, runs. that date that the statute Bell v. Brady, A. 2d (1943); Morrison’s Adm. v. Since suit (1859). brought Mullin, six June the date years 3, 1954, within May, became is not complete, when right Limitations. Sicola v. Statute of First barred 2dA. 584 (1961). National Bank, as the defendant Nation- only runs dissent My Since this is assumpsit Company. wide made Bell as the statement based action, company agent, only, authorized company’s this action. be held liable can Bell, dissent. joins J., Ervin,