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WARREN v. PRAGER. (01/02/62)

January 2, 1962

WARREN, APPELLANT,
v.
PRAGER.



Appeal, No. 389, Jan. T., 1961, from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1961, No. 4229, in case of Ethel Warren v. Pearl Prager, executrix of estate of Samuel Prager, deceased, et al. Judgment affirmed.

COUNSEL

Paul Brandeis, for appellant.

Benjamin F. Kivnik, for appellees.

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

Author: Musmanno

[ 405 Pa. Page 556]

OPINION BY MR. JUSTICE MUSMANNO.

On May 4, 1954, Ethel Warren signed a judgment note for $13,901.30, payable to Samuel Prager. After paying off $10,153.47, Mrs. Warren filed a petition to satisfy the judgment, alleging an "amorous relationship," which will be referred to later at length. Upon answer filed, depositions were taken, and the court finally discharged the rule to mark the judgment satisfied. Mrs. Warren appealed to this Court which dismissed the appeal because no appellate review lies from the discharge of a petition filed under the Act of March 14, 1876, P.L. 7, stating further that: "A remedy available to a judgment debtor, if the creditor improperly refuses to satisfy the judgment of record, is afforded by the procedure authorized by Section 14 of the Act of April 13, 1791, 3 Sm. L. 28, 12 P.S. ยง 971." (402 Pa. 128)

Mrs. Warren then entered a suit in assumpsit under the Act of 1791,*fn* which terminated in an agreement judgment against Mrs. Warren. She now comes to this Court for the second time.

The depositions filed in the court below authorize the following narrative of facts. Mrs. Ethel Warren was employed as a bookkeeper for some years by Samuel Prager, in which employment she came into contact with money paid by customers who dealt at her employer's store. At some time prior to May, 1954 (the exact date not appearing in the record) an audit of the firm's books revealed a shortage of $13,901.30, the circumstances pointing to Mrs. Warren as a peculator of the missing funds. She confessed to her employer that money received from customers had been diverted to her purse and promised to restore what she had taken.

[ 405 Pa. Page 557]

She accordingly signed the judgment note which is the subject of this controversy.

She made periodical payments against the indebtedness until she had paid to Prager the sum of $10,153.47 when she ceased further installments because she said that Prager had been an accomplice in the embezzling process. This startling statement she embellished with a melodramatic account which included an extra-marital romance, a rejected suitor's revenge and blackmail.

She testified, in a deposition, that she and Prager, who was a married man, often went to New York together, tarrying along the way at a motel in Avenal, New Jersey. On one of these trysts, a ne'er-do-well by the name of Ricky Rothberg took pictures of Ethel and Prager entering and leaving the motel. Rothberg had been a fiance of Mrs. Warren's daughter and when Mrs. Warren refused to give her consent to his marrying her daughter he vowed revenge. The photographs followed and blackmail reared its ugly head. You either pay me money or I'll show these pictures to Prager's wife, Rothberg threatened, according to Mrs. Warren. She emptied her personal treasury to him which at that time contained from $1500 to $1800, she said. This ransom, ...


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