concurring:
Appellants argue, among other things, that their assumpsit action against Mildred Wise DePallo is not res judicata because the lower court’s dismissal of count one of their original complaint did not constitute a judgment on the merits of the assumpsit action. Under older cases this argument is colorable. See Detrick v. Sharrar, 95 Pa. 521, 526 (1880); Birch v. Andrew’s Mill Co., 52 Pa.Super. 193 (1912); Restatement of Judgments § 50, Comments c and d (1942). More recently, however, some courts and commentators have taken the position that a judgment for a defendant on a motion to dismiss a complaint for failure to state a cause of action should bar a second action on the same claim since under modern rules of procedure the plaintiff has the opportunity to amend the original complaint to cure fatal defects. See Restatement (Second) of Judgments, Reporter’s Note § 48, Comment d at 42-43 (Tent. Draft No. 1,1973) (collecting authorities). Catanese v. Scirica, 437 Pa. 519, 263 A.2d 372 (1970), appears to be in line with the position taken in the Second Restatement. Recognizing, however, that Catanese does not explicitly overrule the older cases, I have considered appellants’ claim in light of Detrick and Birch, and find the claim wanting. The changes made in appellants’ amended complaint in their assumpsit action against Mildred DePallo are superficial. Because the material allegations in the amended complaint are identical to the allegations in the original complaint, even under the older law the lower court’s prior determination concerning the sufficiency of those allegations in stating a cause of action is res judicata. Restatement of Judgments § 50, Comments c and d (1942).