Fred Lowenschuss Associates v. DePallo

Appellants argue, among other things, that their assumpsit action against Mildred Wise DePallo is not res judicata because the lower court’s dismissal of count one of their original complaint did not constitute a judgment on the merits of the assumpsit action. Under older cases this argument is colorable. See Detrick v. Sharrar, 95 Pa. 521, 526 (1880); Birch v. Andrew’s Mill Co., 52 Pa.Super. 193 (1912); Restatement of Judgments § 50, Comments c and d (1942). More recently, however, some courts and commentators have taken the position that a judgment for a defendant on a motion to dismiss a…