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DUMONT TELEVISION AND RADIO CORPORATION v. FRANKLIN ELECTRIC CO. PHILA. (09/30/59)

September 30, 1959

DUMONT TELEVISION AND RADIO CORPORATION, APPELLANT,
v.
FRANKLIN ELECTRIC CO. OF PHILA.



Appeal, No. 90, Jan. T., 1959, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1958, No. 2214, in case of Dumont Television and Radio Corporation v. Franklin Electric Co. of Phila. et al. Order affirmed. Trespass. Adjudication filed sustaining defendants' preliminary objections, and order entered, opinion by CARROLL, P.J. Plaintiff appealed.

COUNSEL

Edwin P. Rome, with him Morris L. Weisberg, Goncer M. Krestal, and Blank, Rudenko, Klaus & Rome, for appellant.

Meyer E. Maurer, with him Wexler, Mulder & Weisman, and Miller, Adelman & Lavine, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bell

[ 397 Pa. Page 275]

OPINION BY MR. JUSTICE BELL

Plaintiff filed a complaint in trespass claiming actual damages of $50,000 and punitive damages of $25,000 with interest and costs, for tortious harm. The complaint alleged that plaintiff is a creditor of Lewis Dion - an individual who traded as Dee's, Dee's Radio, Dee's Television, Dee's Radio & Record Outlet, Dee's Appliance Center, and Dee's Radio & Record Stores -

[ 397 Pa. Page 276]

    in the amount of $94,640, and is also a judgment creditor of Lewis Dion, in an unstated amount "by reason of a judgment obtained by plaintiff on March 10,*fn1 1958"; that Franklin Electric Co., by its President, on April 10, 1958, filed an involuntary creditor's petition in bankruptcy against Lewis Dion in the United States District Court, averring that it was a creditor of Lewis Dion in the amount of $500 when it knew that it was a creditor of Dee's Inc., a Pennsylvania corporation, which had on March 10, 1958 filed a voluntary petition for an arrangement under Chapter XI of the Bankruptcy Act in the United States District Court; and that defendants' aforesaid action was taken with the purpose to hinder and delay the true creditors of Lewis Dion, and constituted an abuse of civil process which caused severe financial loss to plaintiff.

The lower Court sustained defendants' preliminary objections in the nature of a demurrer, but gave plaintiff leave to amend its complaint within 20 days "if it is able to allege facts which amount to a valid cause of action under the law of Pennsylvania." Plaintiff failed to amend its complaint, but instead immediately took an appeal to this Court from the Order of the lower Court sustaining defendants' preliminary objections.

"Preliminary objections in the nature of a demurrer 'admit as true all facts which are well and clearly pleaded, but not the pleader's conclusions therefrom or averments of law: Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895; Gardner v. Allegheny County, 382 Pa. 88, 94, 114 A.2d 491': Silver v. Korr, 392 Pa. 26, 29, 139 A.2d 552.": Erie v. Gulf Oil Corp., 395 Pa. 383, 386, 150 A.2d 351.

[ 397 Pa. Page 277]

Plaintiff seeks in this State action of trespass to attack collaterally the standing or right of defendant corporation to be a petitioning creditor in the bankruptcy proceedings in which Lewis Dion was adjudicated a bankrupt. Plaintiff's theory, which is unsupported by any authority, is that defendants' filing of an involuntary creditor's petition in bankruptcy against Lewis Dion when they knew they had no claim against Dion individually caused plaintiff to lose a lien which it obtained one ...


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