Kerper, L. v. Travelers Home and Marine Insurance (memorandum)
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J-A15004-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 LINDA KERPER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. TRAVELERS HOME AND MARINE INSURANCE COMPANY Appellee No. 2488 EDA 2013 Appeal from the Order August 8, 2013 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2012-00077 BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J. MEMORANDUM BY PANELLA, J. FILED JUNE 25, 2014 amended complaint was barred by res judicata. We affirm. On January 5, 2012, Kerper filed a complaint against Appellee, failure to comply with the terms of her insurance contract after Travelers stopped payments to Kerper when she refused to submit herself to trial court as well as a motion for judgment on the pleadings, which the trial J-A15004-14 court granted. On October 12 motion, granting judgment on the pleadings. On February 27, 2013, Kerper filed an amended complaint seeking payment of the medical bills from the same insurance policy. Travelers objected to the amendment complaint and filed preliminary objections asserting that Kerper was seeking the exact same claim as it did in January 2012. The trial court agreed and dismissed the amended complaint with prejudice on the basis that it was barred by res judicata. This timely appeal followed. for failure to comply with Rule 1925(b). Specifically, the trial court found that Kerper did not file her Rule 1925(b) statement within the mandated 21 days, see Pa.R.A within 21 days, is incorrect. A review of the docket sheets indicates that the entered on September 13, 2013, but the Rule 236 notice for the order was entered on the docket on September 16, 2013. Kerper filed her Rule 1925(b) statement of record in the lower court on October 4, 2013 within 21 days of the Rule 236 notice. See Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 226 (Pa. Super. 2014) (en banc). -2- J-A15004-14 Rule 1925(b) also requires that Kerper serve a copy of the statement with the trial judge. See Pa.R.A.P. 1925(b)(1). If an appellant fails to serve the trial judge pursuant to his or her order, the appellant waives all issues on appeal. , 879 A.2d 223, 228 (Pa. Super. 2005). Here, as noted, the trial judge asserts that Kerper failed to serve her a copy.1 After careful review of the record, we find that Kerper has provided no proof of service that the trial judge was properly g of the concise statement with the Prothonotary on October 4, 2013, does not excuse the requirement that trial judge be personally served. See id. Because of failed to preserve her issues on appeal. Even if Kerper had properly preserved her appellate issues we would amended complaint. We begin by noting our well-settled standard of review: In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficient of the facts averred. The impetus of our inquiry is to determine the legal sufficient of the complaint and whether the pleading would permit recover if ultimately proven. This court will reverse the ____________________________________________ 1 Indeed, the Honorable Diane E. Gibbons wrote in her order that etitioner is further DIRECTED to serve a copy of the Statement upon the undersigned . . . -3- J-A15004-14 there has been an error of law or abuse of discretion. When or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt. Floors, Inc. v. Altig, 963 A.2d 912, 915 (Pa. Super. 2009). The doctrine of res merits by a court of competent jurisdiction bars any future suit. . . Mintz v. Carlton House Partners, Ltd., 595 A.2d 1240, 1245 (Pa. 1991) (quoting Stevenson v. Silverman, 208 A.2d 786, 788 (Pa. 1965)).2 It bars the future litigation of issues raised and, in addition, arguments which might be raised in the future suit. See Neotzel v. Glasgow, Inc., 487 A.2d 1372, 1376 (Pa. Super. 1985). The doctrine is designed to conserve limited judicial resources, establish certainty in judgments, and protect the party relying upon the judgment from vexatious litigation. See Yamulla Trucking & Excavating Co., Inc. v. Justofin, 771 A.2d 782, 784 (Pa. Super. 2001). The doctrine of res judicata requires that the two actions possess the following common elements: 1) identity of the thing sued upon; 2) identity of the cause of action; 3) identity of the parties: 4) identity of the capacity of the parties. See Kelly v. Kelly, 887 A.2d 788, 791 (Pa. Super. 2005); Matternas v. Stehman, 642 A.2d 1120, 1123 (Pa. 1994). The identity of ____________________________________________ 2 A dismissal in the context of the grant of a motion for judgment on the pleadings is on the merits and constitutes a final order. See Brown v. Cooney, 442 A.2d 324, 326 (Pa. Super. 1982) action for failure to state a claim is a final judgment on the merits -4- J-A15004-14 complained of and the demand for recovery as well as the identity of the Kelly, 887 A.2d at 792. See also Dempsey v. Cessna Aircraft Co., 653 A.2d 679, 681 (Pa. Super. 1995) identical, there may be sufficient identity between two actions for the summary judgment in the first action to be res judicata in the second. Dempsey, 653 A.2d at 681 (citing 10 Standard Pa. Practice 2d, Judgments § 65:50). In determining if the identity of the causes of action are similar we look to the identity of the witnesses, documents, and facts alleged. See Kelly, 887 A.2d at 792. We also look to see if the same evidence is necessary to prove each action and whether both actions seek compensation for the same damages. See id. As such, a party cannot, by varying the form of action of adopting a different method of presenting her case, escape the operation of the principle that the same cause of action shall not be twice litigated. See id. We first note that the judgment on the pleadings issued on October 12, 2012, operates as a final judgment on the merits of the case. (Kerper I). Turning now to the second complaint that was dismissed (Kerper II) we would find that it is without question that the identity of the parties is the same between both suits. We also would find that the other three -5- J-A15004-14 requirements needed to satisfy the res judicata doctrine are present in Kerper II. Kerper contends that because the initial complaint was filed for relief under § 1796 of the Pennsylvania Motor Vehicle Financial Responsibility Law and the second was filed under § 1716 of the same law, they are separate causes of action that are not barred by res judicata. However, we have noted that changing the form of action does not res judicata. Like Kerper I, Kerper II seeks relief from the same insurance policy that resulted from the same accident. Both cases involve the claim of recovering costs from the same medical expenses and requires the same evidence used in Kerper I. As such, we would find that the trial court did not abuse its discretion in granting Travelers preliminary objections and finding that Kerper II barred by res judicata. Order affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/25/2014 -6- J-A15004-14 -7-
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