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 *181legalistic 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 *182Briggs, 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.1 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 *183seek 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,2 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 *184A.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.
. 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).