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SOKOLOFF v. STRICK. (06/26/61)

June 26, 1961

SOKOLOFF, APPELLANT,
v.
STRICK.



Appeal, No. 219, Jan. T., 1961, from order of Court of Common Pleas of Montgomery County, Nov. T., 1958, No. 22, in case of David Sokoloff et ux. v. Rose Strick. Order affirmed.

COUNSEL

Joseph Singer, with him Herbert C. Nelson, for appellants.

Philip Detwiler, with him George Craven, and High, Swartz, Roberts & Seidel, and Barnes, Dechert, Price, Myer & Rhoads, for appellee.

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

Author: Bell

[ 404 Pa. Page 345]

OPINION BY MR. JUSTICE BELL.

Plaintiffs filed a complaint in Equity which concededly did not set forth adequate grounds for equitable relief. After defendant's preliminary objections were sustained, an amended complaint was filed. The lower Court again sustained defendant's preliminary objections and gave plaintiffs leave to file another amended complaint in order to aver "fraud, accident or mistake" with particularity, as required by Pennsylvania R.C.P. 1019(b). This requirement was not only in accordance with the rule of court, but likewise with the decisions of this Court: Palone v. Moschetta, 387 Pa. 386, 128 A.2d 37; Lefkowitz v. Hummel Furniture Co., 385 Pa. 244, 122 A.2d 802.

Plaintiffs thereupon filed exceptions to the Order of the lower Court in which they averred, inter alia, that they could not amend nor aver additional facts to support their allegation of fraud, accident or mistake. The lower Court thereupon entered an order sustaining defendant's preliminary objections and dismissed the complaint. From that Order plaintiffs took this appeal.

While plaintiffs' amended complaint avers material facts which conflict with several other material averments, we shall discuss their amended complaint to determine whether any of the material facts averred are sufficient to warrant equitable relief. Thus approached, plaintiffs' amended complaint alleges the following:

On June 17, 1957 defendant gave to plaintiffs absolutely and in fee simple, without any restrictions or conditions, a certain parcel of real estate known as Lot No. 222 Old Welsh Road, Abington Township, Montgomery County; and likewise on certain specified dates

[ 404 Pa. Page 346]

    in 1957 defendant gave to plaintiffs absolutely and without restrictions or conditions $10,500. On the same date on which defendant gave plaintiffs a deed for 222 Old Welsh Road, to wit on June 17, 1957, plaintiffs gave defendant a bond and mortgage (secured on said premises) in the sum of $25,000, which was immediately recorded by defendant. On the same day, viz., June 17, 1957, plaintiffs executed and gave to defendant a judgment note in the sum of $10,500, which was forthwith entered of record by defendant. Plaintiffs averred that the mortgage, bond and judgment note were obtained by fraud and the following false representations were omitted from those instruments by fraud. This alleged fraud was inferred from this averment; plaintiffs executed and gave to defendant the above mentioned mortgage and bond and judgment note because defendant assured them that "the mortgage, bond... and judgment note was no more than a matter of form and that neither they nor their heirs would ever be called upon for payment thereof, and further, such action would make them judgment proof*fn* thus assuring them and their heirs of the complete and full enjoyment of her gifts forever." No reason was alleged why defendant gave or would give plaintiffs absolutely and without any consideration or restrictions or conditions (more tha) $35,000.

Plaintiffs prayed that the mortgage and the bond and the judgment note be decreed fraudulent and null and void and that defendant be ...


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