
    Delmonico International Corporation v. Phillips
    
      Joseph E. Schmitt, for plaintiff.
    
      James C. Evans, for defendant.
    March 6, 1972.
   McLEAN, J.,

This case is before the court on defendant’s preliminary objections to plaintiff’s complaint. Plaintiff and defendant are essentially in agreement on the relevant facts, as set forth below.

On May 26, 1971, plaintiff entered suit against defendant at no. 3917 of 1971 in this court. The case was scheduled for an arbitration hearing to be held on September 27, 1971. Although plaintiff’s counsel was no-f ifí eel of the date of the hearing, neither plaintiff ’s counsel nor plaintiff himself did appear. On the date of hearing, defendant and counsel did appear and the arbitrators made an “Award of non pros for Defendant of the case, pursuant to paragraph 13 b of Supplemental Instructions to Arbitrators.”

On January 20, 1972, plaintiff instituted a new suit against defendant in. this court at no. 449 of 1972, admittedly for the same cause of action on which the first suit had been entered. Defendant has filed preliminary objections asserting res adjudicata and/or that allowing this second suit would permit plaintiff to escape the effect of the present rule of court denying continuances.

Much as we would like to sustain the preliminary objections of defendant, we find that plaintiff’s rights are controlled by Scharf v. Richard DeCou Company, 320 Pa. 552 (1936), in which the Supreme Court holds that the defense of res adjudicata is not available unless there has been a consideration of the merits of plaintiff’s case in the earlier law suit. Scharf clearly stands for the proposition that in a fact situation, such as we are considering, plaintiff may file a second law suit on the same cause of action. More recent application of the Scharf principle is found in Grosso v. Englert, 381 Pa. 351 (1955), and Beers v. Muth, 395 Pa. 624 (1959).

Accordingly, the preliminary objections must be overruled.

ORDER

And now, March 16, 1972, following oral argument and consideration of the briefs of counsel, it is ordered that the preliminary objections of defendant are overruled and defendant is given 20 days within which to file an answer to the complaint.  