*647Dissenting Opinion by
Me. Justice Musmanno:On August 3, 1953, Stanley A. Socha, an employe of the City of Philadelphia, while riding in a truck belonging to the City, was killed when a car operated by one Ernest Metz collided with the truck. The administratrix of Socha’s estate brought an action in trespass under the Wrongful Death statute against Metz who, in joining the driver of the City’s vehicle and the City as additional defendants, charged that the collision was due to the negligence of the City and that, therefore, the City was either solely or jointly and severally liable.
The plaintiff recovered a verdict of $40,000 against all defendants. The Trial Court refused the motions for a new trial filed by Metz and the City, and judgment was entered on the verdict. The plaintiff collected $15,000 from Metz’s insurance carrier and then issued a writ of mandamus execution against the City of Philadelphia for $25,000. The City resisted the writ and filed a petition for a rule to show cause why the judgment should not be satisfied of record, asserting that since Socha was a City employee, the plaintiff could receive no more than was allowable to her under the Workmen’s Compensation Act. The Court of Common Pleas of Philadelphia County sustained the rule and ordered the writ quashed upon payment by the City to the plaintiff of the amount prescribed by the Workmen’s Compensation Act.
In the light of its later resistance to the claim of the plaintiff, it is strange that at no time during all the lengthy proceedings prior to the issuance of the writ of mandamus execution, did the City raise the defense of Workmen’s Compensation. At the time of the trial, and prior thereto, counsel for the plaintiff notified City counsel that he excluded the applicability of the Workmen’s Compensation Act to the facts in this *648case. The City apparently accepted this thesis as correct and offered, in settlement of its share of the responsibility, the amount of $7500, which was in excess of the amount payable as workmen’s compensation.
May a party defendant in a common law action withhold the expression of a clear defense throughout all the proceedings only to raise it after the litigation has terminated? I do not think so, nor do I believe that the precedents of this Court justify such a procedure. In the case of Opening of Parkway, 267 Pa. 219, 226, this Court said: “When a judgment has been obtained against a municipality, it cannot in subsequent proceedings to collect the adjudicated debt, enter defense on the merits.”
In the case of Goldstein v. Ahrens, 379 Pa. 330, 334, this Court said: “When a court of competent jurisdiction has determined a litigated cause on its merits, the judgment entered and not reversed on appeal is, as between the parties to the suit and their privies, final and conclusive with regard to every fact which might properly be considered in reaching a judicial determination and with regard to all points of law adjudged as those facts and points of law relate directly to the cause of action in litigation.”
I do not believe that the City’s contention, that its liability is a collateral issue which did not merge in the judgment, is supportable in law. The City could have raised the defense of the applicability of the Workmen’s Compensation Act by preliminary objection (Pa. E.C.C.P. 1017, 2 Anderson Pa. Civ. Pract. 329); by pleading it as an affirmative defense (Pa. E.C.C.P. 1030, 2 Anderson Pa. Civ. Pract. 452) ; by motion during the course of the trial, or by appropriate motion after the trial. The City’s failure to raise the defense it now interposes cannot be excused on the ground that *649the plaintiff’s original complaint did not join the City, as will be seen later.
The majority of this Court see in the cases of Maio v. Fahs, 339 Pa. 180, and McIntyre v. Strausser, 365 Pa. 507 a vindication of the City’s position. I do not so read those cases. In my view they are completely distinguishable from the situation at bar. In Maio v. Fahs the defense of the applicability of the Workmen’s Compensation Act was fully preserved at the trial and before the ending of the term of Court. Even before the trial the parties had entered into an agreement under the Workmen’s Compensation Act and so stipulated in Court. It was, in fact, because of this stipulation that the Court declared: “The widow’s only right to recover against her husband’s employer, Turner & Westcott, Inc., is the right given her under that act, for on August 23, 1937, Turner & Westcott (quoting from the stipulation) ‘entered into an agreement for compensation for death in accordance with the Workmen’s Compensation Act of Pennsylvania,’ which agreement is still in force and being complied with by the parties.”
“This finding and the judgment entered thereon is of no benefit to the plaintiff as against Turner & Westcott, Inc., for plaintiff’s recovery against this additional defendant is limited by the compensation agreement.” (Emphasis supplied).
In the case of McIntyre v. Strausser, the alleged employer filed an answer specifically averring his liability to be under the Workmen’s Compensation Act only. At the trial the plaintiff challenged the validity of a Workmen’s Compensation agreement entered into with the defendant, on the ground that it had been obtained by fraud and misrepresentation. The Trial Court ruled that the dispute over the validity of the agreement was to be held in abeyance until further proceedings were had. In approving this action, we said: “On motion *650for judgment n.o.v. by the employer-defendant, which was refused by the court in banc, the court said: ‘Before the trial commenced, and during trial, conferences were held in chambers between counsel and the Trial Judge (this opinion writer), who directed that, pursuant to his interpretation of the law expressed in Maio, Exrx. v. Fahs et al., 339 Pa. 180, the claim that plaintiff was an employee of Sortino was not to be disclosed to the jury, and that the case would be tried simply on the evidence that he was a passenger in Sortino’s car.’
“In dismissing the motion, the court also said: ‘It is our opinion that an order should be made refusing the defendant Sortino’s motion for judgment N.O.Y., without prejudice, and with the right to file a petition — and obtain a rule on the plaintiff to show cause why the judgment should not be satisfied of record.”
It is thus to be noted that in the Strausser case the issue of the applicability of the Workmen’s Compensation Act was at all times before the Court, that the reservation of that defense was protected on the record, that the recorded judgment was specifically stated to be without prejudice to the defendant’s right to challenge the same later, and that the limitation on the judgment was entered within the same term of Court.
In contradistinction to the facts in the Strausser case the City here slept on its right to introduce the defense of the Workmen’s Compensation Act, and in doing so, ran counter to the usual practice of additional defendant-employers who assert, as soon as they are brought into litigation, the asserted barrier of the Workmen’s Compensation Act.*
*651In the instant case the City well knew that it was the plaintiff’s contention that the Workmen’s Compensation Act did not apply. In fact, the plaintiff refused to sign the compensation agreement submitted by the City and, as already stated, the City later offered to pay the plaintiff $7500 which must necessarily have been in settlement of the common lato action since it was in excess of the Compensation Act benefits. Why did the City not proclaim these facts in the pleadings and throughout the course of the litigation? Why did it fail to put the plaintiff on notice that it was refuting her contention about the non-applicability of the Act?
The Majority says in its Opinion that there is a “conclusive” presumption that the Workmen’s Compensation Act was applicable to this case because “the relationship of employer and employe between the City of Philadelphia and tlie plaintiff’s decedent is admitted and is fully established by the record which also discloses that the employee received his fatal injuries while in the course of his employment by the City.” But this observation entirely overlooks the factor that the question of course and scope of employment was never in issue in the trespass action, that it was never raised by the City, and that the plaintiff made no effort (nor was she obliged to make any effort) to prove that the Compensation Act was outside the orbit of the trespass case.
The Majority fears that if the plaintiff is permitted to succeed in this appeal, this in effect permits the City to reject the provisions of the Workmen’s Compensation Act. But this is not a case where the employer is rejecting the provisions of the Act. It is only a case where the employer, by its own actions in failing to properly litigate the issue as to whether or not the Act applied, is now deemed to have concluded that the Act *652was not applicable. It is a case where, having lulled the plaintiff into a situation of false security, the City may not avail itself of its own dereliction. When the City of Pittsburgh, or any municipal corporation, steps into a courtroom to controvert the claim of any citizen of the land, it wears no robe of infallible sovereignty, it carries no shield of immunity. It is a litigant pure and simple and, as such, is entitled to no special consideration or prerogative. Any other defendant in a case similar to the one at bar would be precluded after the termination of a lawsuit to introduce a defence which it had ignored throughout the interminable length of the litigation.
The Majority says also that including the City as an additional defendant in the lawsuit does not assure to the employee a common law right against his employer for damages suffered in the course of employment, but the plaintiff does not so contend. What the plaintiff does assert, and with fair-handed justice, is that where an employer is brought on the record as an additional defendant, the employer, if it intends to defend on the ground that its liability is solely under the Workmen’s Compensation Act, should preserve its right to litigate that issue by promptly and properly raising it in the pleadings. There is no burden on the plaintiff to prove that the Act is not applicable unless the employer raises the issue. Certainly if the plaintiff had sued the City directly, the City would then have been bound to raise the issue. The fact that it was brought in as an additional defendant rather than as the original defendant does not change its obligations in the respect indicated. Chief Justice Stern made this clear in the case of Sheriff v. Eisele, 381 Pa. 33, 35, where he said: “. . . an additional defendant, when joined as such, becomes immediately subject to plaintiff’s claim in every respect and with the same force *653and effect as if lie had been originally named as a defendant, and even without the necessity of any pleading being filed by the plaintiff against him: (Pa. R.C.P. 2255 (b)).”
In its argument before this Court, plaintiff’s counsel referred to the City’s obligations under the Workmen’s Compensation Act as a “limited liability.” The Majority finds fault with this designation. But whether the employer’s liability is whole or limited, the fact remains that the City failed to raise the issue of the Act and it should not be permitted to raise it at this late and last stage when execution of a properly won and duly recorded judgment is about to be effectuated. Chaos, confusion and crying complexity would engulf the records of our Courts if litigants were to be permitted, just as the books of any given case are to be put away, to ask for a reopening of the books, a rewriting of their contents, and a readjustment of all the intervening rights which have accrued while the losing party purposely slept and purposely ignored the processes of the law.
I see nothing in this case which should alter the principle so often enunciated by this Court, namely, “A judgment settles everything involved in the right to recover, not only all matters that were raised, but those which might have been raised.” Myers v. S. Bethlehem,, 149 Pa. 85, 91.
I accordingly dissent.
Zachrel v. Universal Oil Products Company, 355 Pa. 324; Jackson v. Gleason, 320 Pa. 545; Venezia v. Philadelphia Electric Company, 317 Pa. 557; Welsch v. Pittsburgh Terminal Coal Corp., 303 Pa. 405; Murray v. Lavinsky 120 Pa. Superior Ct. 392.