Incollingo v. Maurer

• Decision Date: 30 May 1990
• Citation: 575 A.2d 939,394 Pa.Super. 352
• Parties: William J. INCOLLINGO and Genevieve Incollingo, individually and as Husband and Wife, Appellants, v. Keith Alan MAURER and Maurer Enterprises, Inc., Appellees.
• Court: Pennsylvania Superior Court

Page 939

575 A.2d 939

394 Pa.Super. 352

William J. INCOLLINGO and Genevieve Incollingo, individually and as Husband and Wife, Appellants, v. Keith Alan MAURER and Maurer Enterprises, Inc., Appellees.

Superior Court of Pennsylvania.

Argued Feb. 15, 1990.

Filed May 30, 1990.

Albert Ominsky, Philadelphia, for appellants.

Elit R. Felix, II, Norristown, for appellees.

Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.

CAVANAUGH, Judge:

The genesis of this case is an automobile accident which occurred in Montgomery County on May 26, 1984. On that date, the appellant, William J. Incollingo, was injured when his vehicle was struck by a truck operated by Keith Alan Maurer, and owned by Maurer Enterprises, Inc., the appellees herein. Mr. Maurer swerved into the oncoming traffic lane in which Mr. Incollingo was operating his vehicle, allegedly in order to avoid hitting a vehicle which had suddenly stopped. The "phantom" vehicle was not physically involved in the accident and was never identified.

William J. Incollingo brought an action against his own insurance carrier under the uninsured motorist provisions of the policy alleging negligence of the operator of the unidentified vehicle. The arbitration hearing took place in September, 1985 and the panel found the driver of the "phantom" vehicle liable for negligence and awarded damages to the appellant in the amount of $70,000.00. The maximum amount of damages to which the appellant would have been entitled under the policy was $90,000.00. The arbitration award was reduced to judgment and approved by the Court of Common Pleas of Philadelphia, and the judgment has been satisfied in full.

Subsequently, in February, 1986, the appellant and Genevieve Incollingo, his wife, commenced a civil action in the Court of Common Pleas of Montgomery County against the appellees seeking damages for personal injuries, lost earnings and diminution of earning capacity. The court below by Yohn, J. entered a partial summary judgment in favor of the appellees and against the appellant on the issue of damages as "the full amount of compensation damages to which plaintiff [the appellant] is entitled as a result of injuries sustained in the subject motor vehicle accident has been set at $70,000.00." (Slip Opinion, pg. 13). The appellant filed a petition with this court for permission to appeal from the interlocutory order of the court below and we denied the petition. A petition was then filed in the Supreme Court, which on April 27, 1989 at No. 163 E.D. Miscellaneous Dkt.1988, reversed the order of this court and remanded the matter to us for resolution of the issue on the merits.

The issue which we must resolve is whether a plaintiff, after having the question of damages determined by a panel of arbitrators under the uninsured motorist provision of his policy, may then proceed in a separate civil action for the same damages arising from the incident.

The court below held that the appellant was collaterally estopped from again litigating the issue of damages, as that matter had been fully litigated in the arbitration proceedings. The appellant argues that the doctrine does not apply as he was not fully compensated for his damages, the arbitrators did not state the basis for their award and finally, the defendants below were not a party to the arbitration proceedings.

The Supreme Court stated in City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989):

Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.

See also, Derry Township School District v. Day & Zimmerman, Inc., 345 Pa.Super. 487, 498 A.2d 928 (1985); Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987).

Collateral estoppel is also referred to as "issue preclusion". Phillip v. Clark, 385 Pa.Super. 229, 560 A.2d 777 (1989). It is a broader concept than res judicata and operates to prevent a question of law or issue of fact which has once been litigated and fully determined in a court of competent jurisdiction from being relitigated in a subsequent suit. Alberici v. Tinari, 374 Pa.Super. 20, 542 A.2d 127 (1988).

In the instant matter, the doctrine was properly applied. The arbitration panel was called on to determine the issue of liability and also the amount of damages suffered by Mr. Incollingo as a result of the accident, including his loss of future earnings. The arbitrators found that the unknown operator of a vehicle which suddenly stopped was liable to the insured and awarded damages to him in the amount of $70,000.00. The issue of damages was fully presented to the arbitrators. Mr. Incollingo testified concerning personal injuries he suffered, his medical treatment and doctors consulted, the effect on his family life, his partial disability, and his lost past and future earnings in connection with the operation of his business as a tree surgeon. Counsel for Mr. Incollingo stated, inter alia, in closing argument to the arbitrators:

If he [the operator of the unidentified vehicle] is responsible, then the carrier is responsible to pay Mr. Incollingo for his injuries. And he's got severe disability injuries. The report indicates that his lost of future income is three hundred and some thousand dollars that he's going to lose, and that was done by an expert.

And the reports show that the bones that he broke, the tibia is the big bone in the leg, and it's difficult to heal. The knee injury he is still treating.

Counsel for appellant also argued that "Mr. Incollingo may never have another day in court." There is no question but that the issue of damages was fully covered at the arbitration hearing and the arbitrators, in their award of February 6, 1985, expressly found in favor of the plaintiff-Incollingo and against his insurance carrier as to liability and "as to damages, the panel awarded an amount of $70,000.00 to plaintiff."

The second requirement that final judgment in the previous action was rendered on the merits of the issue was met and the judgment has been satisfied. The third requirement has also been met. The party against whom the issue of collateral estoppel has been raised, namely Mr. Incollingo, was a party to the arbitration. Appellant, in his statement of questions involved, states that the doctrine of collateral estoppel does not apply among other reasons because "the third party [appellees] was not a party to the arbitration." There is no requirement under the doctrine of collateral estoppel that the party raising the defense be involved in the original action, but only that the party against whom it is being raised was a party in the initial proceedings, as Mr. Incollingo was.

The fourth requirement that the party against whom the defense is raised must have had a full and fair opportunity to litigate the issue was also met. Every opportunity was given to Mr. Incollingo at the arbitration to present his claim as to all damages and he presented his case on that issue. At arbitration, the plaintiff testified as to the physical injuries which he sustained in the accident, the medical treatment which he received for the injuries, the limitations upon his ability to work as a tree surgeon, the effect of his injuries upon his business, and the impact of those injuries as they related to his daily activities. The appellant described his continuing medical treatment, together with the physical pain and psychological injuries which he alleged resulted from the accident. The appellant's counsel, in his argument to the arbitration panel, contended that the plaintiff had sustained permanent injuries and that he was still under treatment for injuries sustained. The arbitrators were apprised of the full range of the appellant's claims. The appellant also submitted extensive documentation pertaining to his damages, including copies of medical records, reports, and bills which related to both his physical and psychological injuries. The appellant also submitted the report of an economic expert which addressed the issue of plaintiff's loss of past and future earnings.

There is no doubt that the fifth requirement has also been met as it was essential for the panel to determine damages as well as liability since the arbitration award was based on the damages suffered by the appellant.

The reproduced records submitted by the appellant contains "Claimant's Arbitration Memorandum on Claim for Damages for Loss of Future Earning Power." The memorandum goes into extensive detail concerning Mr. Incollingo's testimony at arbitration about his permanent disability and inability to continue fully in his profession as a tree surgeon. He argued that under Pennsylvania law he should be compensated for loss of earning power. We are satisfied that the issue of all the damages suffered by the appellant was fully and fairly litigated at the arbitration proceedings, and the appellant had the opportunity to present whatever evidence he desired concerning the damages he suffered as a result of the accident.

This case is analogous to Phillip v. Clark, supra. In that case, the plaintiff was injured in an automobile accident. The driver of the other vehicle was insured by Concord Mutual Insurance Company. Concord Mutual became insolvent and the plaintiff submitted an uninsured motorist claim to his own carrier, Nationwide Insurance Company. The claim was submitted to arbitration and an award was made for the plaintiff's injuries. The defendant's insurer then became the Pennsylvania Guaranty Association because of the...