source: Caselaw Access Project

author: BECK, Judge. JOHNSON, Judge,

license: Public Domain

text:
    653 A.2d 663
    1726 CHERRY STREET PARTNERSHIP by its General Partner, 1726 CHERRY STREET CORPORATION, and Sonia Lopatin, Barton J. Winokur, and Michael Lopatin, Trustees of Residuary Trust of Ralph Lopatin Under Deed of Trust Dated October 10, 1967, Appellants, v. BELL ATLANTIC PROPERTIES, INC.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1994.
    Filed Jan. 13, 1995.

      Willima T. Hangley, Philadelphia, for appellants.
    Jon A. Baughman, Philadelphia, for appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   BECK, Judge.

In this contract case we revisit the issue of whether the parol evidence rule precludes admission of evidence of allegedly fraudulent misrepresentations made during negotiations leading to written agreements, where the alleged misrepresentations concern a subject specifically dealt with in the agreements. We conclude that the bar of the parol evidence rule applies and, therefore, affirm.

The genesis of this case was a commercial transaction in which two parcels of Center City Philadelphia real estate were sold and conveyed by plaintiffs — appellants, Barton J. Winokur, Sonia Lopatin, Michael Lopatin and the 1726 Cherry Street Partnership (the “Lopatins”), to defendant — appellee, Bell Atlantic Properties, Inc. (“Bell Atlantic”). These parcels were part of an assemblage of land on which Bell Atlantic ultimately constructed a large office building known as the “Bell Atlantic Tower.” The Lopatins commenced this action shortly after the consummation of the sale of their parcels, alleging that they were the victims of fraudulent conduct by Bell Atlantic in the course of the negotiations concerning the sale.

In order to acquire the land on which Bell Atlantic Tower was built, Bell Atlantic purchased land separately from several different owners, one of which was the Lopatins. The essence of the Lopatins’ claim is that during the course of the negotiations which preceded the execution of written agreements of sale between the parties, Bell Atlantic orally misrepresented its intentions with respect to its possible acquisition of another parcel of land owned by CIGNA (the “CIGNA Parcel”) and located in the vicinity of the Lopatin parcels. This parcel ultimately was purchased by Bell Atlantic and included in the assemblage of land on which the Bell Atlantic Tower was constructed. The Lopatins contend that had they been aware of Bell Atlantic’s real intentions with respect to the CIGNA Parcel, they would have insisted upon a substantially higher price for the Lopatin parcels or would not have sold them at all.

According to the Lopatins, they began their negotiations with Bell Atlantic by taking the position that they wished to be the last seller of parcels of land.within the scope of the intended assemblage of land that Bell Atlantic was seeking to acquire because the last seller would receive the highest price for its land. They allege that they only agreed to be the first to sell and to accept the price reflected in the written agreements because Bell Atlantic agreed to the inclusion of what is commonly referred to as .a “Most Favored Nation” clause in those agreements. In this clause, Bell Atlantic agreed that the price to be paid to the Lopatins for their parcels would be adjusted upward retroactively if Bell Atlantic later acquired certain other enumerated parcels in the proposed assemblage at a price in excess of certain stated target prices.

At the heart of this dispute lies the fact that the other parcels in the proposed assemblage that were made subject to the “Most Favored Nation” clause did not include the CIGNA Parcel. Moreover, the written agreements of sale included the following “integration” clause:

This instrument constitutes the entire agreement between Seller and Purchaser and there are no other agreements, understandings, representations or warranties between them except as set forth herein.

The Lopatins explain- the omission of any mention of the CIGNA Parcel by claiming that Bell Atlantic orally misrepresented to the Lopatins that the CIGNA Parcel was not to be included in the assemblage and that Bell Atlantic had no intention of buying it. Thus, the- Lopatins contend they had no reason to insist on any reference to the CIGNA Parcel in their written agreements of sale. When Bell Atlantic ultimately did purchase the CIGNA Parcel for a price in excess of the per square foot price it had paid the Lopatins, the Lopatins commenced this action seeking damages for fraud, or reformation or rescission of the agreements of sale.

After a six-day non-jury trial conducted before the Honorable G. Craig Lord of the Court of Common Pleas of Philadelphia County, the trial court entered a verdict for Bell Atlantic, having concluded that all of the Lopatins’ claims were barred as a matter of law by the parol evidence rule. The parol evidence rule generally has been described as follows:

Where the parties to an agreement adopt a writing as the final and complete expression of their agreement, as here, evidence of negotiations leading to the formation of the agreement is inadmissible to show an intent at variance with the language of the written agreement. Alleged prior or contemporaneous oral representations or agreements concerning subjects that are specifically dealt with in the written contract are merged in or superseded by that contract. The effect of an integration clause is to make the parol evidence rule particularly applicable. Thus the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings, are admissible to explain or vary the terms of the contract.

McGuire v. Schneider, Inc., 368 Pa.Super. 344, 348—49, 534 A.2d 115, 117-18 (1987) (citations omitted).

In this case, the trial court supported its application of the parol evidence rule in a thorough opinion in which the court attempted to synthesize Pennsylvania law regarding the specific question of how the rule is meant to operate in a case where, as here, fraud in the inducement of a contract is alleged. Since the trial court entered judgment for appellee as a matter of law based on the parol evidence rule alone, we review the trial court’s action purely to determine if it was based on an erroneous interpretation of the law pertinent to this specific issue.

Although the trial court discussed numerous authorities, attempting to reconcile a vast amount of Pennsylvania precedent on this issue, ultimately the court found that the opinion of the Supreme Court of Pennsylvania in Bardwell v. The Willis Company, 375 Pa. 503, 100 A.2d 102 (1953), controlled this case. In Bardwell, plaintiffs leased business premises from defendants. Plaintiffs sought to recover certain financial losses they had suffered allegedly because defendants had orally fraudulently misrepresented the condition of the leased premised. The misrepresentations allegedly were made during the negotiations leading to the execution of the lease, but were not included in the lease itself. The Bardwell court denied plaintiffs relief, opining:

Where the alleged prior or contemporaneous oral representations or agreements concern a subject which is specifically dealt with in the written contract, and the written contract covers or purports to cover the entire agreement of the parties, the law is now clearly and well settled that in the absence of fraud, accident or mistake the alleged oral representations or agreements are merged in or superseded by the subsequent written contract, and parol evidence to vary, modify or supercede the written contract is inadmissible in evidence.
There is not the slightest doubt that if plaintiffs had merely averred the falsity of the alleged oral representations, parol evidence thereof would have been inadmissible. Does the fact that plaintiffs further averred that these oral representations were fraudulently made without averring that they were fraudulently or by accident or mistake omitted from the subsequent complete written contract suffice to make the testimony admissible? The answer to this question is “no”; if it were otherwise the parol evidence rule would become a mockery, because all a party to the written contract would have to do to avoid, modify or nullify it would be to aver (and prove) that the false representations were fraudulently made.
The parol evidence rule has had a checkered career in Pennsylvania. Now that it has been well and wisely settled we will not permit it to be evaded and undermined by such tactics. Fraudulent misrepresentations may be proved to modify or avoid a written contract if it is averred and proved that they were omitted from the (complete) written contract by fraud, accident or mistake.

Id. at 506-07, 100 A.2d at 104 (citations and footnotes omitted) (emphasis in original).

In sum, Bardwell permits the admission of parol evidence of representations concerning a subject dealt with in an integrated written agreement and made prior to or contemporaneous with the execution of the agreement to modify or avoid the terms of that agreement only where it is alleged that the parties agreed that those representations would be included in the written agreement but were omitted by fraud, accident or mistake. This is commonly referred to as “fraud in the execution” because the party proffering the evidence contends that he or she executed the agreement because he or she was defrauded by being led to believe that the document he or she was signing contained terms that were actually omitted therefrom. Such a case is to be distinguished from a “fraud in the inducement” case such as the instant one, where the party proffering evidence of additional prior representations does not contend that the parties agreed that the additional representations would be in the written agreement, but rather claims that the representations were fraudulently made and that but for them, he or she never would have entered into the agreement.

The crux of the legal dispute in this case is the continuing vitality of this clearly expressed principle. In other words, is Bardwell the law of Pennsylvania today? Appellants argue that although Bardwell never actually has been overruled, it is nevertheless no longer the law of this Commonwealth. Appellants rely on cases such as Berger v. Pittsburgh Auto Equipment Co., 387 Pa. 61, 127 A.2d 334 (1956), decided shortly after Bardwell. In Berger, the defendant executed a lease of storage space, allegedly in reliance on the representation of plaintiff lessor that the floor in the leased area was strong enough to support the weight of the goods defendant intended to store there. The alleged representation was not included in the lease, nor was it alleged that the parties ever intended that it be included. When the strength of the floor turned out to be inadequate, defendant vacated the premises and lessor sought to recover the balance of the rent due under the lease. The Berger court expressed the following clearly conflicting view of the parol evidence rule without ever mentioning Bard-well:

Plaintiffs principal contention is that, since all preliminary negotiations and verbal agreements are merged in and superceded by a subsequent written contract, the lease constituted the entire agreement between the parties, and, in the absence of an averment of fraud, accident or mistake, its terms could not be added to nor subtracted from by parol evidence. This is a total misconception of what is involved ... [in this case]. What the petition alleges is that plaintiff made, not a contractual promise or agreement which should have been contained in the written lease and therefore could not be added to it by oral testimony, but a statement of an existing fact as to the strength of the floor for storage purposes.... A misrepresentation of a material fact, even though innocently made, if relied upon by the other party as intended that it should be, confers upon the latter the right to rescind the contract when the falsity of the representation is discovered. The purpose of the evidence here presented by defendant was not to alter or vary the terms of the written instrument, but to rescind it in its entirety because of the alleged factual misrepresentation which induced defendant to enter into it.

Id. at 64-65, 127 A.2d at 335 (citations omitted.)

Under this theory of the parol evidence rule, a party may introduce evidence of factual misrepresentations allegedly made prior to execution of a written agreement if the party alleges that he was induced to enter the agreement by the misrepresentations provided, however, that the party may not thereby achieve a reformation of the agreement but rather may obtain total rescission only. In other words, the party asserting the misrepresentations must proceed on the theory that since the misrepresentation induced the agreement, the agreement is void or voidable at the option of the injured party.

In the instant case, the trial court recognized that Berger and certain other cases decided by the Supreme Court in the late fifties and early sixties appeared to signal a departure from Bardwell by admitting evidence of fraud in the inducement. See also Highmont Music Corp. v. J.M. Hoffman Co., 397 Pa. 345, 155 A.2d 363 (1959). Nevertheless, the trial court in the instant case concluded that Bardwell was resuscitated in 1968 by the Supreme Court in Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968), and thereafter has been fairly consistently applied by this court except in cases involving sales of defective real estate. See, inter alia, McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), aff'd per curiam, 519 Pa. 439, 548 A.2d 1223 (1988); LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978).

In Nicolella, plaintiff contracted to build an addition to defendant’s budding. Plaintiff made his bid based on specifications he had reviewed a long time before he signed the construction contract and commenced work. He alleged that before he signed the contract he asked if any substantial changes in the specifications had. been made and was told that none had been but if any were thereafter made, the contract price would be adjusted accordingly. After commencing work plaintiff discovered that substantial specifications changes had been made prior to his signing the contract and commencing work. Although plaintiff completed the job, he sued defendant for the additional compensation he felt he was due as a result of the changes in the specifications. Nicolella, 432 Pa. at 504-05, 248 A.2d at 21-22.

The Supreme Court affirmed the trial court’s denial of relief to plaintiff, finding that plaintiff was attempting to vary the terms of his integrated written agreement by introducing parol evidence of an alleged prior statement by the defendant concerning a subject, ie., price terms and specifications, that was covered by the agreement. The Court quoted at length from Bardwell in support of its decision that plaintiff could not recover by relying on parol evidence of prior statements since plaintiff had not alleged that those statements were fraudulently omitted from the written agreement. Id. at 506-08, 248 A.2d at 22-23.

Appellants are incorrect when they argue that the trial court erred in construing Nicolella as a clear reaffirmation of the broad rule expressed in Bardwell. In appellants’ view, Nicolella establishes only that a party may not vary the terms of an integrated written agreement based on precontractual fraudulent misrepresentations. According to appellants Nicolella does not alter the holding in Berger and reaffirms the proposition that a party is not barred from rescinding a written agreement based on precontractual fraudulent misrepresentation. In other words, parol evidence is admissible to show that the contract was yoid or voidable because of fraud in the inducement. Appellants attempt to demonstrate' that Pennsylvania cases decided after Nicolella consistently apply the same principle.

We, too, have attempted to find consistency in Pennsylvania parol evidence cases where fraud is alleged. Our examination of the pertinent cases has led us reluctantly to conclude that no intellectually sound analysis of the cases can yield a perfectly consistent set of principles. Substantively identical cases have been decided differently because they have been analyzed under one or the other of the two starkly different conceptions of the parol evidence rule expressed in Bardwell or Berger.

In deciding this case, therefore, we cannot rely on an analysis of the parol evidence rule that accounts for and reconciles every case that addresses the issue. Rather, we rely on the overriding pattern of analysis that emerges from the precedent, with particular emphasis on certain cases recently decided by this court. In these cases, the panel has applied Bardwell and Nicolella, and in one such case has expressly stated that the conflicting doctrine arising from the Berger/Highmont decisions would no longer appear to be the law of Pennsylvania. These decisions convince us that under the facts of this case the appropriate formulation of the parol evidence rule to be applied is the one enunciated in Bardwell.

The first and most noteworthy of these cases is McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), which was affirmed without opinion by the Supreme Court. McGuire v. Schneider, Inc., 519 Pa. 439, 548 A.2d 1223 (1988). In McGuire, an employee claimed that his employer had violated the terms of employment set forth in a letter sent by the employer to the employee in which certain understandings between them had been memorialized. However, several months after the letter was sent the parties entered into a fully integrated written employment agreement containing different terms. The employee attempted to avoid exclusion of evidence of the letter under the parol evidence rule by alleging that prior to executing the employment contract the employer had orally represented to the employee that the letter actually would govern the employee’s employment. 368 Pa.Super. at 347-49, 351-53, 534 A.2d at 116-17, 119. In response to this claim, the panel held:

Appellee’s argument is without merit. In Bardwell v. Willis Company, 375 Pa. 503, 507, 100 A.2d 102, 104 (1953), our Supreme Court held that only if a party to a contract averred that a promise had been omitted from the final, written contract because of fraud, accident, or mistake could parol evidence properly be admitted. After several subsequent decisions which suggested a different approach, e.g., Berger v. Pittsburgh Auto Equipment Co., 387 Pa. 61, 64-65, 127 A.2d 334, 335 (1956); Nadolny v. Scoratow, 412 Pa. 488, 491, 195 A.2d 87, 89 (1963), the Supreme Court reasserted the Bardwell holding in Nicolella v. Palmer, 432 Pa. 502, 507-8, 248 A.2d 20, 22-23 (1968). This court has subsequently held that where the assertions put forth by one party are specifically contradicted by the written agreement, Bardwell applies and parol evidence is admissible only to prove fraud in the execution, not the inducement, of the contract. Abel v. Miller, 293 Pa.Super. 6, 10, 437 A.2d 963, 965 (1982); LeDonne v. Kessler, 256 Pa.Super. 280, 294 & n. 10, 389 A.2d 1123, 1130 & n. 10 (1978). A party cannot justifiably rely upon prior oral representations, yet sign a contract denying the existence of those representations. LeDonne v. Kessler, 256 Pa.Super. at 294 n. 10, 389 A.2d at 1130 n. 10. “If plaintiffs relied on any understanding, promises, representations or agreements made prior to the execution of the written contract ..., they should have protected themselves by incorporating in the written agreement the promises or representations upon which they now rely, and they should have omitted the provisions which they now desire to repudiate and nullify.” Bardwell v. Willis Company, 375 Pa. at 508-09, 100 A.2d at 105.

Id. at 352-53, 534 A.2d at 119-20 (emphasis in original). Thus, the McGuire court held that the employee could not rely on the terms of the letter that preceded, and was super-ceded by, the fully integrated written employment agreement. Id.

Cases decided after McGuire also have applied Bard-well to foreclose reliance on evidence of allegedly fraudulent precontractual misrepresentations. In Iron Worker’s Sav. & Loan Ass’n v. IWS, Inc., 424 Pa.Super. 255, 622 A.2d 367 (1993), for example, a panel of this court enforced the written terms of a promissory note against the debtor despite the debtor’s allegation that the creditor had orally and fraudulently assured the debtor that the written terms of the note would not be enforced. In doing so, the court applied the Bardwell rule, excluding evidence of representations that are specifically contradicted by the written agreement unless fraud in the execution is alleged. Id. at 264-66, 622 A.2d at 372.

Given a tabula rasa, we might agree with appellants that the better view would permit parol evidence to avoid a contract fraudulently induced. To shield a party from the consequences of his or her fraud cannot be justified by the argument that to admit parol evidence erodes certainty in contractual relations. The Restatement (Second) of Contracts § 214 recognizes the admission of parol evidence where fraud is alleged: .

Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish ... (d) illegality, fraud, duress, mistake, lack of consideration or other invalidating cause____
Id., Comment c:
What appears to be a complete and binding integrated agreement may be ... voidable for fraud.... Such invalidating causes need not and commonly do not appear on the face of the writing. They are not affected even by a “merger” clause..

Nevertheless, we find, as did the trial court, that the case before us is governed by Bardwell and its progeny and, therefore, the parol evidence offered in this case is inadmissible. In the instant case, the parties, all of whom were both sophisticated and represented by legal counsel, negotiated at some length concerning the sale of the Lopatins’ parcels. There is no dispute concerning whether the subject of the CIGNA Parcel formed a part of these negotiations. Although the parties disagree as to what was said on the subject of the CIGNA Parcel, all agree that the fate of that parcel specifically was discussed. Once the parties committed their agreement to a final and fully integrated writing, however, no mention of the CIGNA Parcel was made, nor was any provision regarding that parcel intended to be included. Although the subject of the price to be paid and of a possible price adjustment based on what was paid for later acquired parcels was specifically addressed in the agreement, the agreement simply did not provide that the acquisition of the CIGNA Parcel would trigger such an adjustment. The agreement contains an exclusive list of the parcels as to which a price adjustment might be triggered and the CIGNA Parcel is not one of them. Moreover, the agreement states that it is the parties’ entire agreement and that there are no other representations or understandings betwéen them.

Under these circumstances what the Lopatins seek to do is exactly what the Pennsylvania parol, evidence rule forbids: to admit evidence of a prior representation in a fully integrated written agreement. If the Lopatins intended to rely on what they now contend was a centrally important representation conveyed by Bell Atlantic in the course of the negotiations over a multimillion dollar commercial real estate transaction, then the Lopatins should have insisted that the representation be set forth in their integrated written agreement. They are now barred from eliciting parol evidence that they were fraudulently induced into entering the contracts.

Judgment affirmed.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring.

I readily concur in so much of my distinguished colleague’s Opinion as finds continuing validity in the parol evidence rule and in that rule’s preclusion of evidence of allegedly fraudulent misrepresentations made during negotiations leading to written agreements. I find myself unable to agree with my colleague’s view that Pennsylvania law should be modified to permit admission of parol evidence of fraud in the inducement rather than limit the admission of such evidence to fraud in the execution.

As Judge Beck recognizes, the most distinguished trial court entered judgment for Bell Atlantic Properties, Inc., as a matter of law, based upon the parol evidence rule alone. We are not faced with Bell Atlantic being shielded from its own fraud, since the trial court was not required to reach that issue. Had the trial court been required to confront the credibility issues, it might very well have found that the Lopatins’ testimony was less than credible, in which case the allegation of fraud would have collapsed.

Moreover, I am concerned that we would allude to the Restatement (Second) of Contracts § 214, to which no mention or citation has previously been made by either this Court or our state supreme court. I do not understand my colleague to be adopting that section through this Court’s Opinion in this case, and I do not believe the facts have been presented, nor a record developed, that would support an argument for such adoption.

      . The dissent in Berger was authored by Justice Bell, who had written the majority opinion in Bardwell. Justice Bell strenuously objected to the Berger majority’s failure even to recognize, let alone attempt to reconcile, Bardwell with the Berger decision.

      . The distinction is made between barring parol evidence to vary the terms of the agreement and admitting parol evidence to prove fraud in the inducement. In the former case the parties are bound by the terms of the agreement. In the latter case the theory holds that since fraud induced the agreement no valid agreement came into being. Therefore, parol evidence is admissible to show that the alleged agreement is void.

      . Interestingly appellants do not carry through in explaining the relevance of this distinction to this case. Appellants’ complaint alternatively sought damages in the amount they would have received if the CIGNA parcel had been included in the Most Favored Nation Clause (precisely the kind of adjustment to price sought by the Nicolella plaintiff), or reformation or rescission of the agreement. We would understand the import of appellants’ argument much better had they abandoned their plea for a price adjustment and sought rescission alone, since it would appear that they are now arguing that under Nicolella this is the only remedy the law will provide them.

      . Other courts that have entered the fray on this question have reached the same conclusion. In a thoughtful opinion issued by the Court of Appeals for the Third Circuit in 1981, Judge Weis found an irreconcilable conflict between Bardwell and cases like Berger and Highmont. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 407-08 (3d Cir.1981). Interestingly, the Court also concluded that Bardwell was poorly reasoned and, if revisited by the Supreme Court of Pennsylvania, would not be followed.

      . We note at the outset of this discussion that although the Supreme Court has not discussed the issue presented in this case in any recent decisions, we take some guidance from the fact that in Resolution Trust Corporation v. Urban Redevelopment Authority, 536 Pa. 219, 638 A.2d 972 (1994), the Court did cite to Nicolella v. Palmer in support of a general definition of the parol evidence rule. Although the Court did not render a decision on the issue of how the rule operates in the face of a fraud in the inducement claim, and ultimately decided the case before it on grounds other than the parol evidence rule, nevertheless the citation to Nicolella conveys at least the Court's continuing conviction of the viability of that decision.

      . A somewhat different approach has been taken in what have been referred to as "the inspection cases”, namely, LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978), and its progeny. The LeDonne line of cases involve written agreements for the sale of real estate, almost always residential, that contain integration clauses. Despite these clauses, this court has in some cases permitted the admission of evidence of oral representations by sellers concerning the condition of the property that later prove to be untrue. The test enunciated for this type of case, as stated by the LeDonne court, requires a balancing of "the extent of the parties' knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether that party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.” Id. at 294, 389 A.2d at 1130. See also Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983) (applying LeDonne).
      Clearly this formulation of the parol evidence rule was crafted because the court realized that buyers of real estate, especially unsophisticated buyers of residential real estate, are pragmatically incapable of fully ascertaining the physical condition of the property they are buying. Sellers of such property, on the other hand, are customarily in possession of all the available information concerning the condition of the property. Thus, the court has refused to enforce the parol evidence rule in so strict a manner as to deny relief to a party who simply could not entirely protect himself from the harm he eventually suffers.
      We do not find LeDonne instructive as to the instant case, which presents an entirely different factual scenario to which LeDonne clearly was not intended to apply.

      . This section of the Restatement has been interpreted to permit the admission of parol evidence to prove fraud in the inducement. See Betz, supra, 647 F.2d at 408; Murray on Contracts, at § 85A (3d ed. 1990).


author: CERCONE, Judge:

text:
    653 A.2d 671
    Michael S. PLAUCHAK and Ann K. Plauchak, his wife v. Gerald W. BOLING and Linda L. Boling, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1994.
    Filed Jan. 17, 1995.

      Edward C. Morascyek, Washington, for appellants.
    Douglas R. Nolin, Washington, for appellees.
    Before ROWLEY, P.J., and HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final judgment granting ejectment and quieting title to a tract of land. We affirm.

Michael S. and Ann K. Plauchak, appellees, own a tract of land situated in Washington County, Pennsylvania, which they purchased following a mortgage foreclosure sale. This property was formerly owned by Carl Holmes, Jr., and occupied by his sister, Evelyn Morris. Ownership of the land was acquired by the Resolution Trust Corporation as receiver for American Savings and Loan Association of Brazoria County via Sheriffs deed dated December 3, 1990, and duly recorded with the Recorder of Deeds of Washington County. The Resolution Trust Corporation transferred title to appellees by a subsequently recorded deed dated September 25, 1992. On December 18, 1992, appellees also acquired a quit-claim deed from Carl Holmes, Jr. and Evelyn Morris covering the land conveyed in the sheriffs sale as well as an adjacent parcel of land (hereinafter respectively referred to as “Tract No. 1” and “Tract No. 2”).

In 1989, appellants Gerald W. and Linda L. Boling purchased two contiguous properties which lie next to Tract No. 2. Robert A. Lunn, a predecessor in title to the Bolings’ lands, planted a hedge row in 1957 on what he believed to be the boundary line between his property and that portion of the Holmes property now known as Tract No. 2. From 1957 until mid-October of 1991, the Holmes family treated the land on their side of the hedge row as their own, mowing the grass and performing other routine maintenance. They installed a septic system on Tract No. 1 with a leach bed that extends into Tract No. 2. The Holmeses parked a house trailer on Tract No. 2 for an extended period of time. They also cleared and installed a gravelled parking area on Tract No. 2, which served their dwelling house erected on Tract No. 1.

From 1957 through May of 1989, when the appellants purchased their current property, all predecessors in title to the Bolings recognized the boundary of their property as corresponding to the hedge row planted by Mr. Lunn. However, since October of 1991, appellants have planted hedges, pine trees and maple trees, and have built fences, erected no trespassing and private property signs, and placed a barricade of rubber tires on Tract No. 2. Appellants have also removed the gravelled parking area from Tract No. 2.

This appeal stems from an action in ejectment and/or to quiet title which the appellees , instituted in 1993 concerning Tract No. 2. The Honorable Thomas D. Gladden, President Judge of Washington County, heard testimony at hearings conducted on September 21, 1993 and November 9, 1993. On January 31, 1994, Judge Gladden issued an opinion and order ejecting the Bolings from the property at issue and granting possession to the Plauchaks, and confirming the Plauchaks’ ownership in fee simple absolute. The trial judge determined that the hedge row planted by Mr. Lunn had been treated as a consentable boundary line by all predecessors in interest since 1957, and that this acquiescence had continued for longer than twenty-one years. Judge Gladden premised his legal conclusions upon an extensive list of factual findings which we need not reiterate here. See Trial Court Opinion dated January 31, 1994 at 1-6.

Appellants filed a document titled “Request for Post-Trial Relief’ on February 9, 1994. Appellees then petitioned the court for attorney’s fees. The lower court denied both motions, and entered final judgment on April 12, 1994. The instant timely appeal followed presenting a single issue for our consideration:

Whether title to the disputed tract of property, Tract No. 2, will vest in Plaintiffs either by adverse possession or under the doctrine of consentable boundary when there is no reference to the disputed tract in any deed purporting to transfer ownership of property owned by Plaintiffs or their predecessors in title until the Plaintiffs acquired a Quit Claim Deed [on] December 18, 1992, which was approximately three months after Plaintiffs purchased their property?

Before appraising the validity of appellants’ arguments, however, we must first address certain procedural irregularities stemming from the manner in which the underlying case was initiated.

It is procedurally improper to simultaneously commence both an action in ejectment and an action to quiet title regarding the same parcel of real estate. Ordinarily, the plaintiff in an action to quiet title must be in possession of the land in controversy; if he is out of possession, his sole remedy is an action in ejectment. Grossman v. Hill, 384 Pa. 590, 593, 122 A.2d 69, 71 (1956). An action to quiet title may be brought only where an action in ejectment will not lie. Id. at 594, 122 A.2d at 71; Pa.R.C.P. No. 1061(b)(2), 42 Pa.C.S.A. Ejectment, being a possessory action, can be maintained if the plaintiff has a right to immediate possession with the concomitant right to demand that the defendant vacate the land. Grossman v. Hill, 384 Pa. at 593-94, 122 A.2d at 71.

Permitting an out-of-possession plaintiff to maintain an action to quiet title is impermissible because it constitutes an enlargement of the plaintiffs substantive rights as defined by statute, and thus exceeds the court’s jurisdiction to proceed. Sutton v. Miller, 405 Pa.Super. 213, 223-224, 592 A.2d 83, 88-89 (1991). Because plaintiffs/appellees were acting under color of legal title provided by a quit claim deed granting the right of immediate possession, and because appellants were in undisputed physical possession of the land in question by reason of their actions in planting trees, erecting a fence and placing a barricade of tires, the correct practice in this case was to seek ejectment and not quiet title. See generally: Id. (equitable owner under contract for sale, with no right of immediate possession, may maintain suit to quiet title); Brennan v. Shore Brothers, Inc., 380 Pa. 283, 285, 110 A.2d 401, 402 (1955) (ejectment is appropriate where plaintiff is not in possession of property); Buck v. Brunner, 167 Pa.Super. 142, 143, 74 A.2d 528, 528 (1950) (ejectment improper where plaintiff is in possession of disputed property); Pa.R.C.P. No. 1061(b)(1), 42 Pa.C.S.A. (action to quiet title may be brought to compel an adverse party to commence an action of ejectment). But see Hoffman v. Bozitsko, 198 Pa.Super. 553, 182 A.2d 113 (1962) (purchaser at judicial sale has option to obtain possession of purchased property either by ejectment or quiet title).

Nevertheless, appellees’ use of an incorrect form of action is not fatal to the relief granted by the trial court. Even where a plaintiff mistakenly institutes an action to quiet title instead of an action in ejectment, the appropriate remedy is to permit the plaintiff to amend his or her pleadings to conform to the proper action. Sutton v. Miller, 405 Pa.Super. at 224-225, 592 A.2d at 89. See also Pa.R.C.P. No. 1033, 42 Pa.C.S.A. (permitting a party to change the form of action at any time either by leave of court or with the consent of the adverse party). In this case, appellees actually maintained an action in ejectment, albeit improperly in conjunction with an action to quiet title. Therefore, for purposes of the instant appeal, we will consider the claims of the parties solely in the context of an action in ejectment. See Sutton v. Miller, supra (appellate court may sua sponte amend pleadings to conform action to quiet title to proper request for ejectment).

As .this Court has explained,

The plaintiffs’ burden in an action in ejectment at law is clear: they must establish the right to immediate exclusive possession. Recovery can be had only on the strength of their own title, not the weakness of [the] defendant’s title. The crux of an ejectment action, therefore, rests with the plaintiffs’ ability to identify, by a preponderance of the evidence^] the boundaries of a parcel of land to which they are out of possession but for which they maintain paramount title.

Doman v. Brogan, 405 Pa.Super. 254, 263, 592 A.2d 104, 108 (1991) (citations omitted). Where, as here, the trial court sits as the sole finder of fact, an appellate court will not reverse on appeal unless the trial judge’s findings are unsupported by competent evidence. Id. at 267, 592 A.2d at 110. The question of what constitutes a boundary line is a matter of law while the location of that boundary line is a matter for the trier of fact. Plott v. Cole, 377 Pa.Super. 585, 589-90, 547 A.2d 1216, 1219 (1988). In a boundary dispute case, as in a general action in ejectment, we will not reverse the trial judge’s factual findings if they are supported in the certified record. Id.

Appellants contend that the trial court erred in determining that appellees are entitled to fee simple absolute ownership of Tract No. 2 based on the doctrines of adverse possession and consentable boundary. However, despite appellants’ assertions to the contrary, the trial judge did not consider adverse possession in his decision. Judge Gladden’s opinion plainly demonstrates that he applied only the doctrine of consentable line to this case.

The doctrine of consentable line is a rule of repose for the purpose of quieting title and discouraging confusing and vexatious litigation. Plott v. Cole, 377 Pa.Super. at 592, 547 A.2d at 1220. See generally George M. Elsesser, Note, Consentable Lines in Pennsylvania, 54 Dick.L.Rev. 96 (1949) (discussing the history and application of the doctrine of consentable line in this Commonwealth). There are two ways in which a boundary may be established through consentable line: (1) by dispute and compromise, or (2) by recognition and acquiescence. Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 267, 545 A.2d 926, 930 (1988) (en banc). As the en banc court explained in Niles, the doctrine of consentable line is a separate and distinct theory from that of traditional adverse possession, although both involve a twenty-one year statute of limitation. Id. at 267-68, 545 A.2d at 930. Under the doctrine of consentable line,

[i]f adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for the period of time prescribed by the statute of limitations, they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one. See Adams v. Tamaqua Underwear Co., 105 Pa.Super. 339, 161 A. 416 (1932); see generally, 12 Am. Jur.2d, Boundaries §§ 85-90.

Plott v. Cole, 377 Pa.Super. at 593, 547 A.2d at 1221. The establishment of a consentable line is not a conveyance.of land within the meaning of the Statute of Frauds because no estate is thereby created. Hagey v. Detweiler, 35 Pa. 409, 412 (1860). Therefore such a line may be initiated by oral agreement and proved by parol evidence. Beals v. Allison, 161 Pa.Super. 125, 128, 54 A.2d 84, 85 (1947).

The requirements for establishing a binding consentable line by recognition and acquiescence are: (1) a finding that each party has claimed the land on his side of the line as his own; and (2) a finding that this occupation has occurred for the statutory period of twenty-one years. Id., 377 Pa.Super. at 594, 547 A.2d at 1221. See Hagey v. Detweiler, supra (applying twenty-one year limitation period to controversy involving boundaries established under doctrine of consentable line). Accord Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972). In such a situation, the parties need not have specifically consented to the location of the line. Inn Le'Daerda, Inc. v. Davis, 241 Pa.Super. 150, 163, 360 A.2d 209, 215 (1976). “It must nevertheless appear that for the requisite twenty-one years a line was recognized and acquiesced in as a boundary by adjoining landowners.” Id. at 163, 360 A.2d at 215-16 (citing Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A. 211 (1914); Reiter v. McJunkin, 173 Pa. 82, 33 A. 1012 (1896)).

The testimony of Muried A. Pepling, a civil engineer called as an expert witness by the Bolings, established that there is a discrepancy between the physical measurements of the land tracts in question and the metes and bounds descriptions on the deeds which created the original subdivisions between 1910 and 1918. N.T. 11/9/93 at 13-17. The result of this discrepancy is that the two adjacent parcels of land now owned by the Bolings, Tract No. 1 owned by the Plauchaks, and Tract No. 2 claimed by both the Plauchaks and the Bolings are not consistently referenced and fully covered by the metes and bounds descriptions in the deeds memorializing the conveyances which have occurred since 1918. It is undisputed that the Plauchaks’ deed from The Resolution Trust Corporation contains a metes and bounds description which covers only Tract No. 1. It is equally undisputed that the deed which the Bolings received from their immediate predecessor in title conveys a property limited to one hundred twenty (120) feet of road frontage. Id. at 31 (testimony of Gerald Boling). See Trial Court Opinion dated January 31, 1994 at 5 (Factual Finding No. 15). Even Mr. Boling concedes that he and his wife would receive one hundred and sixty (160) feet of frontage, with a consonant increase in acreage, if the Bolings are deemed to be the owners of Tract No. 2. N.T. 11/9/93 at 43-44 (testimony of Gerald Boling).

The record is completely clear that Mr. Lunn, one of appellants’ predecessors in title, acted in 1957 to plant a hedge row for the specific purpose of creating a visible demarcation separating what he viewed as his property from that portion of his neighbors’ land now claimed by the Plauchaks and designated as Tract No. 2. N.T. 9/21/93 at 48, 56-59. None of the subsequent owners in either the Bolings’ or the Plauchaks’ chain of title disputed the propriety of this hedge row boundary from 1957 until at least 1989. During this time, all record owners, including the Bolings’ immediate predecessor in interest, recognized the hedge row as the true and correct border between the properties and acted accordingly. See id. at 41-59, 60-70, 71-90, and N.T. 11/9/93 at 61-68 (testimony of Robert Lunn, Vernon Garland, Carl Holmes, Jr. and Evelyn Morris concerning yard maintenance, grass cutting, the location of the dwelling houses, placement of house trailers, and construction projects on both sides of the hedge row). See also Trial Court Opinion dated January 31, 1994 at 3-6 (Factual Findings No. 5-23, premised upon the above testimony).

The general rule is that one who claims title to property through another, regardless of the nature of the transfer whether by the act of the parties or the act of law, is bound by earlier acts or declarations of his predecessor and takes the title cum onere. Under this rule all acts and declarations of the owner of land made during the continuation of his interest tending to show the character or extent of his possession or interest, or the location of boundaries, are competent evidence not only against himself but also against those who claim through or under him.

Dawson v. Coulter, 262 Pa. 566, 571, 106 A. 187, 188 (1919) (citations omitted).

Our careful scrutiny of the record certified to this court has convinced us that Judge Gladden correctly ruled that a consentable boundary was established between the Bolings’ land and Tract No. 2 by recognition and acquiescence, and that this consentable line existed for more than twenty-one years. Pennsylvania law is clear that successive owners in privity to one another may tack the possessory rights of a prior owner which were acquired through the establishment of a consentable line. Wittig v. Carlacci, 370 Pa.Super. 584, 589, 537 A.2d 29, 32 (1988). It is undisputed that Opal Holmes and her husband purchased Tract No. 1 in 1957 as entireties property. Furthermore, neither party contests the fact that Carl Holmes, Jr. was in privity to his mother, Opal Holmes, when she transferred Tract No. 1 to him in 1971. Therefore we agree with Judge Gladden’s determination that Carl Holmes Jr., the record owner of Tract No. 1 in 1978, became vested in that year with ownership of Tract No. 2 at the expiration of the statutory period required for establishment of a consentable line.

Where a consentable line has been clearly established by dispute and compromise, the line becomes binding under application of the doctrine of estoppel after twenty-one years. Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. at 267, 545 A.2d at 930 (citing Newton v. Smith, 40 Pa.Super. 615, 616 (1909)). We see no reason why this rule should not also apply in a case where the consentable line was established by recognition and acquiescence. The problem presented by this appeal is neither unique nor new to the courts of this Commonwealth. As oúr Supreme Court recognized in 1835,

There is no survey of ordinary size, the lines of which will measure exactly to the corners, or to the places where they once stood; hence, every surveyor in tracing old surveys expects to find and does find the length of every line differing more or less from his draft.

Martz v. Hartley, 4 Watts 261, 263 (1835). Therefore our courts have always favored boundaries established by consent-able line, especially where, as here, the courses and distances on the ground do not correspond to the metes and bounds contained in the paper record. Id. See also Perkins v. Gay, 3 Serg. & Rawle 327 (1817) (confirming the applicability of the ancient doctrine of consentable line to an action in ejectment).

What a man has possessed long enough to be protected by the statute of limitations he has a right to; the place in which he and his neighbor have said for twenty-one years his line is, must continue to be the place where it is. There is no other doctrine on which titles can be safe....

Martz v. Hartley, 4 Watts at 264. We therefore conclude that the Bolings are estopped from denying the boundary line to which their predecessors in title acquiesced for more than twenty-one years.

We note that appellants have challenged the validity of appellees’ title to Tract No. 2 on the grounds that the Plauchaks lack privity to all the ownership rights enjoyed by Carl Holmes, Jr. We agree with appellants that a deed, in itself, creates no privity as to land outside its calls. Wittig v. Carlacci, 370 Pa.Super. at 589, 537 A.2d at 32 (quoting Gerhart v. Hilsenbeck, 164 Pa.Super. 85, 88, 63 A.2d 124, 126 (1949)). Our courts have consistently held that acceptance of a deed describing specific boundary lines confines the grantee to the area within the boundaries and does not convey inchoate rights acquired by uncompleted adverse possession. Id. (citing Masters of South Fork v. Local Union No. 472, United Mine Workers of America, 146 Pa.Super. 143, 22 A.2d 70 (1941)). The key points here are that the rights of Carl Holmes, Jr. to Tract No. 2 do not stem from'adverse possession and they were no longer inchoate in 1991 when the Sheriffs deed conveyed Tract No. 1 to The Resolution Trust. As already explained, Mr. Holmes’ rights to Tract No. 2 vested in 1978.

Appellants have cast their argument in this regard according to the strict rules pertaining to adverse possession rather than to those governing boundaries established under a consentable line by recognition and acquiescence. However, even on appellants’ own terms, their claim must fail. Pennsylvania law has long held that one who occupies land adversely for the prescriptive period gains an absolute, marketable title, with the attendant right of possession. O’Hara v. Richardson, 46 Pa. 385, 390-91 (1863); Schall v. Williams Valley Railroad Co., 35 Pa. 191, 204-06 (1860). Title thus attained may be divested only in the manner in which title acquired by formal grant or conveyance may be divested and is not lost by “neglecting to keep up the possession.” Schall v. Williams Valley Railroad Co., supra at 206. Title acquired by adverse possession extinguishes all prior claims, including those asserted under color of paper title. Philadelphia Electric Co. v. City of Philadelphia, 303 Pa. 422, 428-29, 154 A. 492, 494 (1931). Rights under the paper title are extinguished, and the purchaser of a paper title may not ordinarily, prevail. Schall v. Williams Valley Railroad Co., supra.

It is true that every person who acquires title by adverse possession who subsequently departs from possession should file a written statement of his claim. 68 P.S. § 81. When filecl and recorded, such a statement becomes constructive notice of the claim. Id. § 85. However, failure to file a statement in the substantial form set forth at 68 P.S. § 82 does not defeat the title as against a purchaser who has either actual or constructive notice of the new title by adverse possession. Nulton v. Nulton, 247 Pa. 572, 583, 93 A. 630, 633 (1915). Nor does failure to file and record a statement prevent a claimant from maintaining an action in ejectment. Id.

Appellants have never claimed that they purchased their property without actual notice that Mr. Holmes, the owner in possession in 1989, was physically occupying Tract No. 2. Indeed, appellants could not justifiably maintain that they lacked actual notice of Mr. Holmes’ ownership of Tract No. 2 in light of Mr. Bolings’ testimony. Mr. Boling stated that when he and his wife purchased their property, the large hedges planted by Mr. Lunn were completely visible as was the paved parking area installed by the Holmes family on Tract No. 2. See N.T. 11/9/93 at 47-50. We note that appellants have cited neither case law nor statute which supports the proposition that Carl Holmes, Jr. was required to subject all of his land to mortgage lien or to convey more than the trust company sought upon mortgage foreclosure. Thus, according to their own argument, appellants have failed to explain either the manner in which their claim to Tract No. 2 is superior to that of Carl Holmes, Jr., or why Mr. Holmes could not separately convey his interest in Tracts No. 1 and 2 to different grantees.

We are convinced that Judge Gladden correctly interpreted Pennsylvania law as it pertains to this case. Moreover, the certified record supports the factual findings of the trial judge sitting without a jury. As we can discern no basis upon which to grant appellants’ request for relief, we affirm the trial court’s decision.

Judgment affirmed.

      . Appellants have incorrectly characterized this appeal as stemming from an order denying post-trial relief. It is well-settled that no appeal will lie from an order dismissing exceptions to the decision entered after a non-jury trial. Pa.R.A.P. No. 301, 42 Pa.C.S.A.; Black Top Paving Co., Inc. v. John Carlo, Inc., 292 Pa.Super. 404, 437 A.2d 446 (1981). However, because final judgment was entered in this case and the notice of appeal was timely filed thereafter, we have jurisdiction to consider the merits of the appeal. See Pa.R.A.P., Rule 905(a), 42 Pa.C.S.A.

      . At common law, this term is usually spelled "consentible.” See, e.g., Black’s Law Dictionary 277 (5th ed. 1979). However, the correct usage in Pennsylvania is "consentable.” Webster’s New Universal Unabridged Dictionary 388 (2d ed. 1983).

      . Compare Cox's, Inc. v. Snodgrass, 372 Pa. 148, 152, 92 A.2d 540, 541-42 (1952) (burden of proof in an action to quiet title is on plaintiff); Albert v. Lehigh Coal and Navigation Co., 431 Pa. 600, 607, 246 A.2d 840, 843 (1968) (in quiet title action, plaintiffs can recover only on strength of their own title and not upon weakness of defendants' title).

      . 33 P.S. § 1.

      . The divergence between the lie of the land and the metes and bounds descriptions in the various deeds in the chain of title to the properties at issue here is severe enough that if a surveyor were to place iron pins in the ground and run property lines exactly according to the deed calls, the lines would bisect the existing dwelling houses. N.T. 11/9/93 at 14 (testimony of Muried A. Pepling).

      . This factual finding reiterates the metes and bounds description contained in the deed conveying land to the Bolings. The language in the deed establishes a frontage along Legislative Route 62183 for a distance of 120.04 feet. See Plaintiffs Exhibit "K” (copy of deed dated May 26. 1989 from Vernon K. and Linda L. Garland to Gerald W. and Linda Lee Boling).

      . Mrs. Holmes' husband predeceased her, and thus was not involved in the 1971 conveyance.

      . The deed conveying the Lunn/Garland property to the Bolings is dated May 26, 1989. Mr. Holmes testified that he personally moved from the properties comprising Tracts No. 1 and 2 after his marriage on May 14, 1989. N.T. 9/21/93 at 84. However, his mother and sister continued to occupy both Tracts No. 1 and 2 with Mr. Holmes' consent. Id. at 87-88. Mr. Holmes' sister, Evelyn Morris, testified that her. brother told her that she could stay on the property as long as she desired to do so if she agreed to take care of their mother, who was ill. N.T. 11/9/93 at 66, Opal Holmes, the mother, died sometime after May of 1989, but Ms. Morris lived on Mr. Holmes' property with her children until they were evicted in 1991 pursuant to the mortgage foreclosure action. N.T. 9/21/93 at 87.


author: WIEAND, Judge: McEWEN, Judge, CIRILLO, Judge,

text:
    653 A.2d 679
    Chester DEMPSEY and Helen Jane Dempsey, H/W, Appellants, v. The CESSNA AIRCRAFT COMPANY, Pioneer Aviation, Inc., Robert M. Keller and B & J Sheet Metal, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1994.
    Filed Jan. 25, 1995.

      Arthur A. Wolk, Philadelphia, for appellants.
    Ralph G. Wellington, Philadelphia, for Cessna Aircraft, appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, BECK, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

Chester Dempsey entered an agreement to settle a personal injury action pending against The Cessna Aircraft Company (Cessna) in Montgomery County for the sum of three hundred thousand ($300,000.00) dollars. After the settlement had been completed and the consideration paid, however, Dempsey ascertained that Cessna had failed to disclose certain- information during discovery which may have strengthened his claim. Therefore, he filed an action against Cessna in the United States District Court for the Eastern District of Pennsylvania in which he alleged, inter alia, that he had been induced to settle by fraud. The federal court dismissed the action, holding, under Pennsylvania law, that Dempsey had affirmed the contract and waived the fraud, if any, by failing to disaffirm the settlement and offering to return the consideration. This decision was affirmed by the Third Circuit Court of Appeals. See: Dempsey v. Associated Aviation Underwriters, 977 F.2d 567 (3rd Cir.1992). Thereafter, Dempsey filed in Montgomery County a petition to set aside the settlement on grounds of fraud. The Montgomery County Court, in response to preliminary objections, dismissed the petition on grounds of res judicata. From this order, Dempsey filed the instant appeal. After careful review, we affirm.

Dempsey had been injured when a Cessna C-150 single engine aircraft crashed during take off. He filed an action against Cessna to recover for injuries sustained, alleging strict liability, negligence and breach of warranty. This case was settled prior to trial for the sum of three hundred thousand ($300,000.00) dollars. Subsequently, Dempsey learned that Cessna had been aware of fuel tank problems with the aircraft and that this information had not been disclosed during discovery. Contending that he had been induced to settle by fraud, Dempsey filed the federal action and, after that action had been dismissed, the petition in Montgomery County to set aside the settlement.

In Nocito v. Lanuitti, 402 Pa. 288, 167 A.2d 262 (1961), where the plaintiff sought to recover damages for fraud which had induced him to execute a release in a trespass action, the Supreme Court affirmed a judgment in favor of the defendant. The Court said:

If the procurement of this release was by fraud, when Nocito discovered it he had his choice either to disaffirm the contract and offer to return to Lanuitti or his insurance carrier the consideration for this release or to affirm the voidable contract and waive the fraud. Nocito’s failure to tender back the consideration after he discovered the alleged fraud constituted a waiver of the fraud and an affirmance of the contract: Walker v. Harbison, 283 Pa. 111, 128 A. 732; [ (1925) ] Corporation Funding & Finance Co. v. Stoffregen, 264 Pa. 215, 107 A. 727. [ (1919) ]

Id. at 290, 167 A.2d at 263. See also: Hess v. Evans, 288 Pa.Super. 180, 182, 431 A.2d 347, 348 (1981). It was in reliance on this state of the law pertaining to the setting aside of settlements that Dempsey’s action for fraud was dismissed by the United States District Court for the Eastern District of Pennsylvania.

Was this decision res judicata in the subsequent attempt by Dempsey to move in the state court to set aside the settlement? We conclude that it was.

The doctrine of res judicata holds that “[a] final valid judgment upon the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action.” Mintz v. Carlton House Partners, Ltd., 407 Pa.Super. 464, 474, 595 A.2d 1240, 1245 (1991), quoting Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965). The purpose of the doctrine is “to minimize the judicial energy devoted to individual cases, establish certainty and respect for court judgments, and protect the party relying on the prior adjudication from vexatious litigation.” Mintz v. Carlton House Partners, Ltd., supra at 474, 595 A.2d at 788, quoting Lebeau v. Lebeau, 258 Pa.Super. 519, 524, 393 A.2d 480, 492 (1978).

Where parties have been afforded an opportunity to litigate a claim before a court of competent jurisdiction, and where the court has finally decided the controversy, the interests of the state and of the parties require that the validity of the claim and any issue actually litigated in the action not be litigated again.

Ham v. Sulek, 422 Pa.Super. 615, 621-622, 620 A.2d 5, 8 (1993). Regardless of whether the plaintiff effects a recovery in the first action, he may not relitigate an action which has once been adjudicated. 46 Am.Jur.2d, Judgments § 404.

Application of 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. Matternas v. Stehman, 434 Pa.Super. 255, 261-63, 642 A.2d 1120, 1123 (1994); McArdle v. Tronetti 426 Pa.Super. 607, 612, 627 A.2d 1219, 1222 (1993), allocatur denied, 537 Pa. 622, 641 A.2d 587 (1984); Banker v. Valley Forge Ins. Co., 401 Pa.Super. 367, 373-374, 585 A.2d 504, 508 (1991), allocatur denied, 529 Pa. 615, 600 A.2d 532 (1991). Here, it is clear that the first, third and fourth elements are present, and we need focus only on the second element.

“The term ‘cause of action’ is not easily defined, and the authorities have laid down no thoroughly satisfactory and all-embracing definition____” 46 Am.Jur.2d, Judgments § 406.

A fundamental test applied for comparing causes of action, for the purpose of applying principles of res judicata, is whether the primary right and duty, and delict or wrong, are the same in each action. Under this test, there is but one cause of action where there is but one right in the plaintiff and one wrong on the part of the defendant involving that right.

46 Am.Jur.2d, Judgments § 406 (footnotes omitted). Thus, it has been said that the primary focus should be whether the ultimate and controlling issues have been decided. Hammel v. Hammel, 431 Pa.Super. 230, 238, 636 A.2d 214, 218 (1994). See also: Hopewell Estates, Inc. v. Kent, 435 Pa.Super. 471, 477, 646 A.2d 1192, 1195 (1994); Mintz v. Carlton House Partners, Ltd., supra at 475, 595 A.2d at 1247; In Re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 450, 477 A.2d 527, 531 (1984); Magee v. Grange Nat. Bank of Wyoming County, 149 Pa.Super. 477, 480, 27 A.2d 488, 489 (1942).

Identity of two causes of action may be determined by considering the similarity in the acts complained of and the demand for recovery as well as the identity of the witnesses, documents and facts alleged. McArdle v. Tronetti, supra at 612, 627 A.2d at 1222; In Re Jones & Laughlin Steel Corp., supra at 450-451, 477 A.2d at 531. “In determining whether res judicata should apply, a court may consider whether the factual allegations of both actions are the same, whether the same evidence is necessary to prove each action and whether both actions seek compensation for the same damages.” Hopewell Estates, Inc. v. Kent, supra at 476-77, 646 A.2d at 1194-1195. See also: Mintz v. Carlton House Partners, Ltd., supra at 475, 595 A.2d at 1246; Magee v. Nat. Bank of Wyoming County, supra at 480, 27 A.2d at 489. “If the acts or transactions giving rise to causes of action are identical, there may be sufficient identity between two actions for the summary judgment in the first action to be res judicata in the second.” 10 Standard Pa.Practice 2d, Judgments § 65:50 (footnote omitted).

In the federal action, the issues were whether Cessna had withheld information which Dempsey had sought to discover and had thereby induced the appellant by fraud to settle his claim. In Dempsey’s state court petition he raised the same issues. Thus, the complaint in the federal action and the petition in the state action both relied upon and asserted the same conduct and transaction. Both actions also alleged the same injury, i.e., appellant’s acceptance of an unfavorable settlement. Finally, both actions relied upon the same evidence — the discovery information which was allegedly withheld. In order to prevail in both actions it was necessary to prove fraud. In both actions, moreover, the cause of action would be defeated by an affirmance of the settlement after the facts had become known.

It is of no consequence that the federal action was commenced by complaint and the state action was commenced by petition to set aside a settlement agreement. The form in which two actions are commenced does not determine whether the causes of action are identical. 10 Standard Pa.Practice 2d, Judgments § 65:49.

The application of the doctrine of res judicata to identical causes of action does not depend upon the identity or differences in the forms of the two actions. A judgment upon the merits bars a subsequent suit upon the same cause, though brought in a different form of action, and a party therefore cannot, by varying the form of action or adopting a different method of presenting his case, escape the operation of the principle that one and the same cause of action shall not be twice litigated.

46 Am.Jur.2d, Judgments § 411 (footnotes omitted).

Appellant also cannot avoid the consequences of a prior judicial determination merely by altering the character of the relief sought. See: Stevenson v. Silverman, supra at 192, 208 A.2d at 788. Where the damages suffered are a consequence of the same actions alleged in an earlier suit, a new cause of action is not present merely because the relief sought has changed. Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 327, 197 A.2d 44, 46 (1964). Res judicata may bar a second action based upon the same transaction even if additional grounds for relief are presented. Larsen v. Larsen, 392 Pa. 609, 611, 141 A.2d 353, 354 (1958). “[T]he fact that a different form or measure of relief is asked does not preclude the application of the judgment to estop the maintenance of the second action; for application of the doctrine, it is not necessary that the two actions be identical with respect to the relief sought.” 46 Am.Jur.2d, Judgments § 412 (footnotes omitted). See also: 46 Am.Jur.2d, Judgments § 411 (Where there has been a judgment on the merits, plaintiff may not maintain a second action to enforce another remedy.) That appellant sought monetary damages in the federal court but requested equitable relief in the nature of rescission in the state court does not change the fact that he had a single cause of action.

The decision in Briggs v. Erie Ins. Group, 406 Pa.Super. 560, 594 A.2d 761 (1991), does not command a different result. There the two actions involved different parties, and the decision of the majority considered only the defense of collateral estoppel. It remained for the author of the concurring opinion to observe that res judicata could have no application because the parties were not the same. Nevertheless, to the extent that Briggs can be interpreted as holding that an action to rescind a release for fraud and an action to recover damages for fraud are not the same cause of action for purposes of res judicata, Briggs is disapproved. See: Nocito v. Lanuitti supra. See also: Wedgewood Diner v. Good, 368 Pa.Super. 480, 534 A.2d 537 (1987).

Appellant, when he discovered information which had not been supplied during discovery, asserted that he had been induced to settle his claim by fraud. He could then either have disaffirmed the settlement and offered to return the amount which he had been paid or he could have affirmed the settlement and waived the fraud. In a federal action to recover additional damages the court held that he had affirmed the settlement and waived the fraud. That decision is now res judicata and bars the present, subsequent action to rescind the settlement and set it aside.

Affirmed.

McEWEN, J., files a concurríng opinion.

CIRILLO, J., files a dissenting opinion in which KELLY, J., joins.

McEWEN, Judge,

concurring:

While I commend the destination of my distinguished colleagues who here dissent, I am unable to join in their journey and am instead compelled to join in the majority opinion.

The shift in jurisprudential focus from property to individual rights triggered by the United States Supreme Court in the decades immediately following World War II, commenced, of course, with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and attained crescendo pitch in the 1960s when the Court effected sweeping' enhancement of constitutional standards for protection of the accused. The decision of the Pennsylvania Supreme Court in Nocito v. Lanuitti, 402 Pa. 288, 167 A.2d 262 (1961) — the case which is the vortex of this appeal — preceded that shift of jurisprudential focus to the individual, since the Nocito court applied a legalistic logic to its focus upon property when it held that logic compels the return of the award if one is to subsequently question the basis for the award. Legalistic logic loses even its gloss in application, for no average individual, as distinguished from the vested and affluent, is able to preserve the proceeds of an award or to later garner sufficient resources as to enable a “return of consideration”, the condition precedent to disaffirmance reiterated in Nocito. To impose this condition precedent of return of consideration upon a suit for fraud is to preclude, in most situations, any risk of sanction for fraud in settlement negotiations — or, as the advocate would exclaim, the condition precedent serves as license to deceive and defraud.

This Court, mindful of this lingering inequity, constructed in Briggs v. Erie Ins. Group, 406 Pa.Super. 560, 594 A.2d 761 (1991), a rationale which obviated compliance with that condition and found that the subsequent fraud action was not barred by principles of res judicata, where the second action, filed after the first action had ended with a negotiated settlement, was instituted not against the defendant driver with whom the Briggses had settled their first lawsuit, but instead was instituted against Erie Insurance Company for its independent tort in intentionally misrepresenting the limits of liability of the applicable policy of insurance.

Having hopefully expressed the basis for my espousal of the goal of my colleagues who dissent, I proceed to expression of the basis for my joinder in the opinion of my colleagues in the majority — commencing with the suggestion that the essential issue for our review is not the state of the law of disaffirmance in Pennsylvania, but whether the trial court properly proceeded to application of the doctrine of res judicata.

Counsel for appellants in the action filed in the United States District Court for the Eastern District named Associated Aviation Underwriters, Lonnie Williams (the AAU’s claims manager), and Cessna Aircraft Company as defendants, presented a cause of action based upon fraud and misrepresentation, and sought compensatory and punitive damages. The District Court, acknowledging the holding of this Court in Briggs, noted that “a federal court sitting in its diversity jurisdiction cannot lightly assume that the views of an intermediate appellate court, however recent, are a more reliable indicator of how the Supreme Court of Pennsylvania would decide the present controversy than existing Supreme Court authority, whatever its vintage.... We therefore decline plaintiffs’ invitation to overrule Nocito based upon Briggs.” Dempsey v. Associated Aviation Underwriters, 141 F.R.D. 248, 250 (E.D.Pa.), aff'd., 977 F.2d 567 (3rd Cir.1992). Applying Nocito, the federal district court granted summary judgment in favor of Cessna in the fraud action. Appellants, arguing that the district court erred in refusing to apply Briggs, returned to state court and sought, for the first time, rescission of the settlement agreement based upon the alleged fraud committed by Cessna.

The state trial court judge, the learned Judge S. Gerald Corso, correctly held that further proceedings based on the allegedly fraudulent conduct of Cessna were barred by principles of res judicata. Judge Corso reasoned as follows:

“res judicata encompasses not only those issues, claims or defenses that are actually raised in the prior proceeding, but also those which could have been raised but were not. E-Z Parks, Inc. v. Philadelphia Parking Authority, 110 Pa.Commw. 629, 532 A.2d 1272 (1987).
Applying the foregoing to this case, there has been a final judgment on the merits which has been affirmed on appeal. See: Hubicki v. ACF Industries, Inc., 484 F.2d 519, 524 (3rd Cir.1973)____ The instant case and the second federal action share identical causes of action or “things sued upon”. More specifically, both actions arose out of plaintiff’s April 2, 1988, airplane accident and both actions allege that Cessna fraudulently induced the settlement by withholding critical discoverable documents. Although the plaintiffs seek recision of contract in this action and sought damages in the second federal action, this does not change the identity of the underlying cause of action.” (emphasis supplied).

It merits emphasis that I agree with the dissenting position that the initial state court negligence action did not operate to preclude the subsequent federal action for fraud, because the fraud action commenced in federal court was based upon a different cause of action, arose from a separate although related occurrence, and gave rise to different remedies. Nonetheless, that federal action resulted in a final judgment, which was affirmed on appeal by the Court of Appeals for the Third Circuit. See: Dempsey v. Associated Aviation Underwriters, 141 F.R.D. 248 (E.D.Pa.) aff'd., 977 F.2d 567 (3rd Cir.1992). It is that final judgment, entered by the federal court, which, the state trial court properly held, precludes further proceedings in the state court.

While there is some support for recognition of an exception to the application of res judicata, a final judgment, even where the adjudication is erroneous, is res judicata in the absence of an appeal. 20A PLE Judgment § 251. Any inclination to construct an exception fades when the forum of the adjudication is not Pennsylvania, and, in this instance, principles of comity compel recognition of the federal court judgment:

Pennsylvania courts have long recognized the principle that state courts are bound by the judgments of federal courts. See London v. City of Philadelphia, 412 Pa. 496, 499, 194 A.2d 901, 902-03 (1963) (once federal court validly acquired jurisdiction, its jurisdiction extended to all matters ancillary to the main cause of action and it would violate res judicata doctrine to permit relitigation of state claim in state court); Bardo v. Commonwealth of Pennsylvania, 40 Pa.Commw. 585, 587 n. 1, 397 A.2d 1305, 1307 n. 1 (1979) (“It is clear that a federal court decision is res judicata in subsequent state proceedings.”). Quite clearly, the Commonwealth could have litigated in 1978 in the federal court issues presented before the state court in Scanlon. But they elected not to do so. Having made that decision in 1978— for whatever reason — the Commonwealth today is bound by the federal judgment under res judicata, a doctrine recognized by the highest courts in both the federal and the Pennsylvania court systems.

Delaware Valley Citizens Council for Clean Air v. Commonwealth of Pennsylvania, 755 F.2d 38, 44 (3rd Cir.1985) (emphasis supplied).

Since appellants could have sought rescission of the settlement's an alternative remedy to their claim for compensatory and punitive damages in the federal action based upon fraud, the issue of whether Briggs permits an action for damages for fraud without rescission of the settlement agreement is an issue which may not now be inquired into by this Court. I, therefore, join in the opinion of the majority.

CIRILLO, Judge,

dissenting.

On April 2, 1988, a Cessna C-150 single engine aircraft operated by appellant Chester Dempsey crashed on takeoff. Following the accident, appellants Chester Dempsey and his wife, Helen, (the Dempseys) filed suit in federal court against appellee Cessna alleging that the accident was caused by defects in the aircraft’s fuel system. Subsequent to filing the instant case on January 23, 1990, the Dempseys moved for, and were granted, a voluntary dismissal of their federal claim.

On October 15, 1990, the Dempseys agreed to a settlement of all claims against Cessna. The Dempseys accepted $300,-000.00 and, in return, executed a joint tortfeasor release in favor of Cessna. Thereafter, counsel for Cessna learned that his client had located certain documents relating to Cessna’s development of a service kit concerning the installation of additional quick drains in the fuel tanks of the C-150 aircraft. In early January, 1991, after determining that these quick drain documents may have been responsive to certain discovery requests by the Dempseys in the voluntarily dismissed federal action, counsel for Cessna notified the Dempseys.

Consequently, the Dempseys filed a second federal action alleging that Cessna had fraudulently induced them to enter into the settlement and joint tortfeasor release. The Dempseys’ claim for relief in this second federal action was for monetary damages; they did not seek rescission of the agreement nor did they tender return of the settlement proceeds.

On September 11, 1991, Cessna filed a motion to dismiss or, in the alternative, for summary judgment in the second federal action. By memorandum opinion dated February 7, 1992, the Honorable Stewart Dalzell dismissed with prejudice the Dempseys’ fraud complaint in the second federal action. In rendering his decision, Judge Dalzell of the United States District Court for the Eastern District applied Pennsylvania law and held that the Dempseys’ failure to tender the settlement consideration constituted an affirmance of the voidable contract and a waiver of the fraud claim. Further, since Judge Dalzell considered information outside the record, his order constituted summary judgment against the Dempseys under Rule 56 of the Federal Rules of Civil Procedure. The Dempseys appealed to the United States Court of Appeals for the Third Circuit which affirmed the order.

After briefs were filed in the Court of Appeals for the Third Circuit, but before oral argument was held, the Dempseys returned to state court and filed a petition to set aside the joint tortfeasor settlement and declare the Dempseys’ release of Cessna null and void. The Dempseys based this petition upon the same fraud claim asserted in the second federal action and seek rescission of the settlement and release. Cessna filed preliminary objections in the nature of a motion to deny and strike the petition. The trial court sustained Cessna’s motion by an order dated February 10, 1993.

In their timely appeal, the Dempseys raise the following issues:

1. Whether the trial court abused its discretion and/or committed reversible error by failing to cite or follow Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991), which holds that actions for damages for fraud in the inducement of a settlement are separate and distinct from actions for damages for personal injury?
2. Whether the trial court erred under Briggs in holding that the petition to set aside was barred by the doctrine of res judicata?
3. Whether the trial court erred under Briggs in holding that the petition to set aside was barred by the doctrine of collateral estoppel?
4. Whether the trial court erred under Briggs in holding that the petition to set aside was barred by the doctrine of election of remedies?

Since this is an appeal from an order sustaining preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991); Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585, 587 (1973). Preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt, and any doubt should be resolved by refusal to sustain the objections. Id.

Instantly, the majority has found that the Dempseys’ claim is barred by the doctrine of res judicata. I disagree.

Application of the doctrine of res judicata requires the concurrence of four elements: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality in the persons for or against whom the claim is made. City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 54, 559 A.2d 896, 901 (1989). In the instant case, it is clear that parts (3) and (4) of the test have been met as the Dempseys named Cessna as a defendant in both the federal and the state actions. However, an application of this court’s decision in Briggs, supra, 406 Pa.Super. 560, 594 A.2d 761, reveals that parts (1) and (2) of the res judicata test are lacking.

In Briggs, the plaintiffs were the executors of the estates of two women who died as a result of an automobile collision. Erie, the insurer of the driver who operated the vehicle which caused the accident, initiated settlement discussions with the plaintiffs. As a result of these discussions, the plaintiffs entered into a settlement and executed a general release of all their claims arising from the accident.

Despite the release, the plaintiffs subsequently filed a personal injury lawsuit against the driver insured by Erie and another individual alleged to have caused the accident. The defendants pled the defense of the release and filed motions for judgment on the pleadings. In response, the plaintiffs asserted that the release had been fraudulently obtained because an Erie insurance representative had misrepresented policy limits during settlement discussions. The trial court, noting that the defendants were not accused of perpetrating the fraud, granted the defendants’ preliminary objections based on the fact that the plaintiffs had not tendered the settlement proceeds. On appeal, this court affirmed the trial court’s decision.

The plaintiffs next initiated a lawsuit against Erie claiming that Erie had committed fraud by misrepresenting policy limits during the original settlement discussions. In this second action, the plaintiffs sought damages rather than rescission as remedy. Erie moved for summary judgment which was granted by the trial court. Ultimately, this court vacated the trial court’s order, holding that the dismissal of the actions against the two original defendants did not preclude a second suit for an independent fraud against Erie. In his concurring opinion, Judge Brosky wrote:

Appellee has also suggested that the present action is barred by the doctrine of res judicata. However, this is not the case. Appellant’s first action was a claim for liability based upon the negligent operation of a motor vehicle. The present action is a claim for fraud based upon settlement negotiations which ensued after the automobile accident. Not only are the parties different, the nature of the claims and the facts supporting them, although interrelated, are distinctly different as well. Therefore, res judicata does not bar the present action.

406 Pa.Super. at 570, 594 A.2d at 765.

Similarly, in the instant case, the Dempseys have initiated two different claims with very different underlying facts. In the state action, the Dempseys allege negligence, strict liability, and breach of warranty arising from the aircraft accident. In the federal action, the Dempseys claimed fraud, civil conspiracy, and concerted action arising from the defendants’ conduct during the course of the settlement negotiations and other pretrial negotiations subsequent to the aircraft accident. Additionally, the remedies sought in the actions are also dissimilar. In the federal action, the Dempseys sought monetary damages for fraud. In the state action, they seek monetary damages for the personal injury and rescission of the settlement to fully recover these damages. As in Briggs, although the Dempseys seek rescission of the personal injury settlement based on fraud, this does not change the fact the two actions have different underlying causes of action, arise from different occurrences, and seek different remedies. As such, I believe that the trial court erred in holding that the Dempseys’ claim was barred by the doctrine of res judicata.

The trial court also found that the Dempseys’ claim was barred by the doctrine of collateral estoppel. Collateral estoppel, the doctrine of issue preclusion, forecloses relitigation of an issue of fact or law which was actually litigated and was necessary to the original judgment. Muhammad, 526 Pa. at 546, 587 A.2d at 1348; City of Pittsburgh, 522 Pa. at 54, 559 A.2d at 901. Further, in Briggs, this court held:

The trial court in its opinion in the previous case noted that fraudulent conduct of the insurer was not an issue, and it dismissed Appellant’s claims against the individual tortfeasors on the basis that the Appellants had failed to return the settlement proceeds which precluded them from pursuing a rescission of settlement agreement and release. As in Muhammad v. Strassburger, [citation omitted], the doctrine of collateral estoppel does not bar the instant matter since there are issues in this case which were not litigated in Appellants’ case against the individual tortfeasors.

406 Pa.Super. at 566, 594 A.2d at 763.

Similarly, in the instant case, the issue underlying the Dempseys’ petition for rescission has never been litigated. The sole issue actually litigated and decided in the federal action was whether the Dempseys could maintain an action for fraud without tendering settlement proceeds. As that issue was decided against the Dempseys, the ultimate issue of whether fraud actually occurred was never actually litigated or decided. Thus, while the federal court decided that the Dempseys could not proceed with their action for fraud, the federal court did not rule upon whether fraud actually occurred. Accordingly, since the issue of fraud, which underlies the Dempseys’ petition for rescission in the instant case, was not litigated and decided in the federal action, I believe that the trial court erred in holding that the doctrine of collateral estoppel barred the Dempseys’ claim.

The trial court also held that the Dempseys’ claim was barred by the doctrine of election of remedies. In reaching its conclusion, the trial court found that the Dempseys, having affirmed the settlement by suing for fraud in the federal action, could not now take the inconsistent position of disaffirming the settlement by petitioning for rescission. I find this reasoning to be directly contrary to this court’s decision in Briggs.

In Briggs, this court found that the plaintiffs’ cause of action for fraud was not based upon claims arising out of the settlement contract, but was solely based upon claims related to Erie’s conduct during the settlement negotiations. 406 Pa.Super. at 567, 594 A.2d at 763. As such, this court went on to hold that the fraud action was consistent with the earlier action for rescission and, therefore, the doctrine of election of remedies did not apply. Id. The same is true for the instant case. The Dempseys’ federal action for fraud was based solely upon claims relating to the actions of Cessna during the settlement negotiations, while the present action for rescission is based upon the settlement contract itself. The mere fact that the Dempseys initiated their fraud action before they sought rescission does not preclude application of this court’s holding in Briggs. Thus, I believe that there is nothing inconsistent about the Dempseys affirming the settlement by suing for fraud and now seeking rescission to pursue the underlying personal injury action. Accordingly, I believe that the trial court erred in holding that the doctrine of election of remedies barred the Dempseys’ claim. Consequently, I would reverse the order of the trial court and allow the Dempseys to proceed to trial.

Further, I fail to understand the majority’s repeated attempts to discount Briggs. I believe that our opinion in Briggs was well reasoned and went to great lengths to serve justice. Further, the relevance of Briggs to the instant case is undeniable, as the facts and issues in both cases are nearly identical.

The majority, in the instant case, has not only discounted the import of Briggs, but, in the process, it has created an unjust result. Beginning with Judge Dalzell’s questionable application of relevant Pennsylvania law in their federal action, and culminating with the majority’s decision today, the Dempseys’ have been denied access to our judicial system at every turn. As such, Cessna may have been allowed to benefit from its conduct during settlement negotiations and Mr. Dempsey may never be allowed to present evidence to a jury that Cessna’s negligence caused his crippling injuries. I find this outcome to be reprehensible.

Accordingly, I dissent.

KELLY, J., joins.

      . As a general rule, res judicata is an affirmative defense and should be pleaded as new matter in an answer. See: Pa.R.C.P. 1030. In the instant case, however, the facts are not in dispute, and neither party has objected to the procedure followed in the trial court.

      . Cessna subsequently joined as additional defendants various parties who had been charged with maintenance of the aircraft.

      . Appellant implies that the decision of the federal court in the action to recover damages for fraud was incorrect because it was at variance with the decision in Briggs. However, the Briggs court did not consider the decision of the Supreme Court in Nocito v. Lanuitti, supra, upon which the federal court relied. Moreover, and in any event, even if it could be said that the decision by the federal court was subject to question, it would not prevent the application of res judicata to a subsequent assertion of the same cause of action in another court.

      . Because we hold that appellant's petition to rescind his settlement is barred by principles of res judicata, i.e., claim preclusion, we do not consider appellee’s additional arguments that the petition is also barred by principles of collateral estoppel, i.e., issue preclusion, and the doctrine of election of remedies.

      . While Cessna was granted judgment in its favor based on Nocito, the federal district court entered judgment in favor of Associated Aviation Underwriters and its claims manager on the basis of an absence of any legal duty owed by Associated Aviation Underwriters to the Dempseys. See: Dempsey v. Associated Aviation Underwriters, supra, 141 F.R.D. at 252.

      . The allegation of fraud in the procurement of the settlement, and the inability of the federal court to apply the holding of the Superior Court in Briggs provides an argument for application of the exception noted by the Supreme Court in Clark v. Troutman, 509 Pa. 336, 502 A.2d 137 (1985):
      "an intervening change in the relevant legal climate may warrant reexamination of the rule of law applicable as between the parties .... reexamination is appropriate if the change in the law, or other circumstances, are such that preclusion would result in a manifestly inequitable administration of the laws----”

        Clark v. Troutman, supra at 341, 502 A.2d at 139 quoting Restatement (Second) Judgments § 28, comment (c).

      . In dismissing the Dempseys’ federal action, Judge Dalzell, relying upon Nocito v. Lanuitti, 402 Pa. 288, 167 A.2d 262 (1961), found that the Dempseys could not recover monetary damages for Cessna’s fraud without first returning the proceeds of the settlement. This reasoning has been re-affirmed by the majority today. I, however, have reservations about characterizing this as the correct application of relevant Pennsylvania law.
      In Briggs we stated the following:
      Appellants do not in their Complaint seek rescission of the releases, but rather seek damages for the losses they have allegedly suffered due to this fraudulent action. Because Appellants are not seeking to avoid their releases, a return of the settlement proceeds is not a prerequisite to this action.

        406 Pa.Super. at 564, 594 A.2d at 763. Since the facts and issues presented in Briggs so closely mirror those presented in the present case, I have difficulty finding that the above passage would not apply instantly. Obviously, this is not the appropriate forum to review Judge Dalzell’s decision, however, I feel compelled to question its propriety.