concurring:
Under the majority’s reasoning, the following might occur: (1) A party waits 40 days, without appealing; the party may ask the lower court to reconsider its decision, and the court may do so, change its mind, and decide in the party’s favor. (2) A party waits 40 days, does appeal, and the appeal is quashed as untimely; now, according to the majority, the party may not ask the lower court to reconsider its decision. I cannot join this reasoning; it depends upon giving legal effect to an action — the untimely appeal — that was a nullity. Nevertheless, I agree with the majority’s result, which I reach as follows:
On January 19, 1976, the Stricklers got a judgment against Pennsylvania and United for failure to answer interrogatories. Pennsylvania and United each filed a petition to strike or open the judgment. On May 20, 1976, Judge LAGAKOS dismissed both petitions. Pennsylvania filed a timely appeal on June 17, and won. Strickler v. United Elevator Co. et al., 248 Pa.Super. 258, 375 A.2d 86 (1977). United chose a different course: it filed a petition with Judge LAGAKOS, asking him to reconsider, and banked everything on the outcome, letting the appeal pehiod expire.
*552On November 18, 1976, Judge LAGAKOS denied United’s petition to reconsider. United’s appeal from that denial was, of course, untimely, and was therefore quashed. Legally, it was a nullity. In reasoning through our decision, therefore, we should proceed as though it had never occurred. So proceeding, one sees that the question presented is this: On November 18, 1976, when Judge LAGAKOS denied its petition to reconsider, did United have any form of relief left? United thought so: it filed a second petition to reconsider. This petition was assigned to Judge GREEN-BERG.
At this point it is important to make a procedural comment. Sometimes it is said that one Common Pleas judge may not reverse the decision of another Common Pleas judge of “concurrent jurisdiction.” For example, if Judge X rules before trial that evidence should not be suppressed, Judge Y may not at trial reverse and order suppression. Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968). We do not have such a situation here. Both Judge LAGAKOS and Judge GREENBERG represented “the motions court.” The question presented by this case would not be different if there had been no change of judicial assignment, and United’s second petition to reconsider had therefore been assigned to Judge LAGAKOS.
Upon receiving the second petition, Judge GREENBERG was of the opinion that he had the power to grant it; and he did. In my opinion, this was error; I think Judge GREEN-BERG should have ruled that he had no power to grant the petition because it raised precisely the same question as had been presented by the first petition to reconsider, assigned to and denied by Judge LAGAKOS.
When the first petition to reconsider was assigned to Judge LAGAKOS, he had the power to grant it. See Smith v. Dale, 405 Pa. 293, 295, 175 A.2d 78, 79 (1961):
Under the Act of May 20, 1891, P.L. 101, § 1, 12 PS § 1100, in all cases involving the application for the opening, vacating and striking off of judgments of any kind, a party aggrieved by the decision of the court may *553appeal at that stage of the proceeding. If no such appeal is taken and the judgment involved is one entered by amicable confession, upon warrant of attorney or by default, the order opening the judgment or discharging the rule to open is interlocutory in nature, rendered in an equitable proceeding and may be fully reviewed by the court at a subsequent term. Under such circumstances the discharge of the rule to open judgment will not prevent the court from entertaining a renewal of the application to open at a subsequent term. See, Home B. & L. Ass’n. v. Houlihan, 373 Pa. 43, 95 A.2d 189 (1953); Markofski v. Yanks, 297 Pa. 74, 146 A. 569 (1929); Trescott v. Co-operative Building Bk., 215 Pa. 438, 64 A. 630 (1906) and Kozuhowski & Reuss v. Snigel & Snigel, 90 Pa.Super. 75 (1927). The rule against opening, amending or vacating a judgment after the expiration of the term does not apply to interlocutory orders or to judgments by default. See, Riegel v. Wilson, 60 Pa. 388, 394 (1869); Breden v. Gilliland, 67 Pa. 34 (1871). Therefore, the court en banc had the power and authority to fully review the order discharging the rule to show cause and under the facts such action was clearly indicated.
However, when the second petition to reconsider was assigned to Judge GREENBERG, he did not have the power to grant it. That power was denied him by the principle of res judicata. The correctness of this conclusion may be seen by examining Greenfield & Co. v. Roberts, 135 Pa.Super. 328, 5 A.2d 642 (1939), which depended in turn upon Ahl, to the use of Long v. Goodhart, 161 Pa. 455, 29 A. 82 (1894).
In Greenfield the facts were these: On February 11, 1937, the defendant obtained a rule to show cause why, inter alia, a judgment should not be stricken or opened. On June 22, the lower court discharged the rule. On August 31, the defendant obtained a second rule to show cause why the judgment should not be opened. On June 3, 1938, the lower court discharged this rule; the court’s reason for this action was that “it felt ‘compelled to discharge the rule on the technical ground of res adjudicata.’ ” 135 Pa.Super. at 331, *5545 A.2d at 644. In support, the court relied upon Ahl, stating:
“In Ahl, to the use of Long, v. Goodhart et a1., 161 Pa. 455, 29 A. 82, the Supreme Court held, that where a rule to open a confessed judgment has been discharged, the defendant cannot subsequently, on a scire facias to revive the judgment, set up as a defense the same matters that were passed upon by the court on the rule to open the judgment. Such matters are res adjudicata. In enunciating this rule the court said: ‘The principle of the cases is that a party who has submitted his alleged grievance to a court of competent jurisdiction and has had the same adjudicated, has had his day in court, and cannot be again heard, as to the same matters, in another form of proceeding.’ Here the defenses offered are the counterpart of those set out in the first petition to open the judgment. Defendant, having had his day in court, cannot subject the plaintiff to the trouble and expense of again defending the same rule, nor will he be permitted to burden the court with the same matter twice. Defendant’s remedy was to have appealed from the action of the court in dismissing the first rule on June 22, 1937, as provided by the Act of May 20, 1891, P.L. 101, [12 P.S. §§ 1100, 1164.] For the above reason the rule to open the judgment was discharged.” .
135 Pa. Super, at 331-32, 5 A.2d at 644.
As it happened, on appeal this court reversed. The only reason for reversal, however, was that this court’s review of the record indicated that the lower court, in discharging the first rule to show cause, had in fact not
[given] any consideration to the question of opening the judgment on the merits, as was asked for in the petition of August 31, 1937 [the second rule to show cause] . . .
135 Pa. Super, at 333, 5 A.2d at 645.
It followed,
therefore, that the matters raised by the [second] rule to open the judgment and let defendant into a defense were *555not passed upon or decided by the court in discharging the prior rule on June 22, 1937 and should be considered under the present [second] rule.
135 Pa.Super. at 334, 5 A.2d at 645.
Here, “the matters raised by” the first petition to reconsider were “passed upon or decided by the court [Judge LAGAKOS].” Accordingly, the principle of res judicata did apply, and Judge GREENBERG should have ruled that he was compelled to dismiss the second petition to reconsider.
For these reasons I concur in the majority’s order reversing Judge GREENBERG’S order of August 3, 1977, and reinstating Judge LAGAKOS’ order of May 20, 1976.