Bonfitto v. Nationwide Mutual Insurance ( 1961 )

Opinion by

Wright, J.,

This is an appeal from the entry of judgment n.o.v. in favor of the defendants after a verdict for the plaintiff in an assumpsit action. The factual situation appears in the following excerpt from the opinion of Judge Woodeing for the court en banc:

“The facts of the case begin with the three Bonfitto brothers. On March 20, 1952, Joseph, while driving Antonio’s car, allegedly backed over Marco’s foot. Antonio was insured by Farm Bureau Insurance Company, now known as Nationwide Insurance Company. Shortly after the accident in the spring of 1952, Edgar Bell, an adjuster for Nationwide visited Marco and allegedly told him not to worry, that his Company would pay for Marco’s loss up to $10,000.00. Bell also visited Marco in the summer of 1952 and in November of 1952, at which latter time he again allegedly assured Marco that the Company would pay and that Marco should come to Nationwide’s office when he had been discharged by his doctor. The doctor, an orthopedic surgeon of unquestioned integrity and repute, testified that he never discharged Marco. The latter, however, testified that he was discharged on June 3, 1954 and on the same day went to see Bell. Bell refused to make any payment and pointed out that the period of the statute of limitations had expired on March 20, 1954.

“On September 23, 1954, Marco brought an action in trespass against Antonio and Joseph for the injuries sustained. Antonio and Joseph pleaded under New , Matter that the two-year statute of limitations barred the action. Marco replied that a representative of Antonio and Joseph had promised him that he would be compensated and that Marco, relying on said promise, did not institute suit, and that Antonio and Joseph .should not be permitted to employ the defense of the statute of limitations. When the case was called for trial the parties agreed that the foregoing issue should be preliminarily heard and determined by the judge on a motion for judgment on the pleadings.

“Testimony was taken and the question was argued. The judge found that Bell had never committed the Company to pay anything and had not misrepresented the law of the statute of limitations; and, further, that it was the duty of Marco (under the circumstances) to have properly informed himself and to have instituted suit within the statutory period. Bonfitto v. Bonfitto, 10 Pa. D. & C. 2d 598. This judgment was affirmed by the Supreme Court per curiam on the trial judge’s opinion. 391 Pa. 187, 137 A. 2d 277.

“In May, 1959, more than seven years after the accident, Marco brought suit against Nationwide and Bell (1) in assumpsit, on the basis of a promissory estoppel, and in the alternate (2) in trespass, against Bell for deceit. At a pre-trial conference before William G. Barthold, P. J., plaintiff announced that he would not pursue this latter claim. Defendants pleaded under New Matter the six-year statute of limitations. The court submitted the case to the jury and instructed it that the basic issue was whether Bell made the promise. The jury found for Marco in the sum of $3,564.00. Defendants have moved for judgment n.o.v. on the grounds: (1) that the issue had already been determined in a prior action, and (2) that the statute of limitations had run”.

We agree with the result reached by the court en banc, but for a different reason. Notwithstanding the statement in tbe opinion below that defendant-appellees “can take no skelter or consolation from tke determination and judgment of tke prior action”, it is our view tkat tke prior action did determine tke issue involved on tkis appeal. We tkerefore deem it unnecessary to discuss tke question of tke statute of limitations in actions of assumpsit based on promissory estoppel.¹

In tke prior case, under tke keading of new matter, defendants pleaded tkat tke trespass action instituted by Marco Bonfitto, tkis appellant, was barred by tke two-year statute of limitations. Marco replied tkat, because of Bell’s promises, the defendants were es-topped from interposing tke statute as a defense. Tke court held as a matter of law tkat estoppel had not been established, expressly stating tkat “defendants never committed themselves to pay anything, gave fair warning tkat they would not call upon plaintiff again, and did not misrepresent tke law of tke statute of limitations”. Precisely tke same issue was involved in tke instant case, which concerns tke same actors, tke same circumstances, and tke same conversations. No evidence was submitted at tke trial of tke present ease which would in any way change the prior determination. Tke court en banc mentioned, inter alia, tke principles of stare decisis, law of tke case, and res judicata,² but concluded tkat they were not applicable. It is our view to the contrary that the determination of the prior action established the law of the case. We cannot countenance such an obvious inconsistency between the two results.

In affirming the judgment on the earlier appeal, Bonfitto v. Bonfitto, supra, 391 Pa. 187, 137 A. 2d 277, the Supreme Court adjudicated the same question here presented and the matter should be treated as finally disposed of. See Thaler Brothers v. Greisser Construction Co., 229 Pa. 512, 79 A. 147. Matters passed upon at a prior appeal will not be reconsidered on second appeal: Creachen v. Bromley Brothers Carpet Co., 214 Pa. 15, 63 A. 195. Where the record shows no question that was not decided on a former appeal, the second appeal will be dismissed on the ground of prior adjudication: McMahon's Estate, 215 Pa. 10, 64 A. 321. A former judgment puts an end to all further litigation on account of the same matter and becomes the law of the case which cannot be changed or altered : Lafferty’s Estate, 230 Pa. 496, 79 A. 711. Points decided upon a first appeal will not be reconsidered on a second appeal: Welker v. Hazen, 247 Pa. 122, 93 A. 173. A previous decree affirmed on appeal is conclusive : Allen v. Pennypacker, 302 Pa. 495, 153 A. 734. The appellate court in a new proceeding will not reexamine and reverse a decision in a prior proceeding in which the same parties, subject matter and issues were before it: Girard Trust Co. v. Philadelphia, 359 Pa. 319, 59 A. 2d 124.

In brief, since this appellant, as a matter of law, was unable in the earlier trespass case to establish such an estoppel as would prevent the running of the statute of limitations, he may not effect a contrary result by belatedly instituting an action in assumpsit based on the same theory. Application of the rule of the law of the case prevents reconsideration of the question of estoppel previously decided adversely to his présent contention. See Commonwealth v. Binenstock, 366 Pa. 519, 77 A. 2d 628.

Judgment affirmed.

1 The court below rejected the contention of the defendant-appellees that the period of 'the statute commenced on the date of Bell’s promise in November, 1952. It also rejected the contention of the plaintiff-appellant that the statute did not begin to run until there had been a breach of the promise. The court below concluded that the equitable answer lay somewhere between these two contentions, that the statute commenced to run “at the expiration of a reasonable time after Bell’s promise”, and that the action in the instant case was not within a reasonable time.

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