in Pearl Assurance Company, Ltd. v. National Insurance Agency, Inc., 151 Pa.Super. 146, 30 A.2d 333 (1943), which was an action against a corporation and its sole stockholder and owner for conversion of fire insurance premiums. In holding the individual defendant liable, as well as the corporation, the Superior Court stated (151 Pa.Super. p. 158, 30 A.2d p. 338):
'With respect to the question of the defendant Rovno's personal liability to the appellee company, it should be noted that he was not only the owner of all the stock of the corporate defendant, as well as its president and authorized agent, but he also personally did all the acts involved in the transactions complained of in this action. 'The fiction of a corporation as an entity distinct from the aggregate of individuals comprising it was designed to serve convenience and justice. There is consequently an exception recognized wherever the rule is known, namely, that the fiction will be disregarded and the individuals and corporation considered as identical whenever justice or public policy demand it and when the rights of innocent parties are not prejudiced thereby nor the theory of corporate entity made useless'. Tucker v. Binenstock, 310 Pa. 254, 263, 165 A. 247; Markovitz et al. v. Markovitz et al., 336 Pa. 122, 126, 8 A.2d 36; Great Oak B. & L. Ass'n et al. v. Rosenheim, 341 Pa. 132, 19 A.2d 95; Miller v. South Hills L. & S. Co., 334 Pa. 293, 297, 6 A.2d 92; Cohen v. Maus, 297 Pa. 454, 457, 147 A. 103; Semple v. Morganstern, 97 Conn. 402, 116 A. 906, 907, 26 A.L.R. 21 (Conn.).'
For present purposes on the record now before us, we think the acts and conduct of Remark must be regarded as those of Lewis Bokser and Sara L. Bokser, and, through them, of Lewis Bokser, Inc., and that the complaint, therefore, states adequate grounds for the attachments.
Petitioners further urge that the complaint fails to comply with the requirements of the Pennsylvania Rules of Civil Procedure, in that it avers fraud only in general terms. Those Rules have no application here. Rule 64 of the Federal Rules of Civil Procedure, which authorizes the State remedy here, imposes the qualification that 'the action in which any of the foregoing remedies is used (including the instant remedy) shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules.' F.R.C.P. 1 states: 'These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81.'
Rule 9(b) of the Federal Rules of Civil Procedure provides:
'In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.'
The complaint avers a concealment and transfer of property 'with the intent to defraud the plaintiff.' We think this is a sufficiently particular statement of 'the circumstances constituting fraud.' In Barron & Holtzoff, Federal Practice and Procedure, Rules Edition, Vol. 1A, § 302, p. 217, it is stated:
'There has been a tendency in some, though far from all, cases, to give Rule 9(b) an over-strict reading, which seemingly fails to take into account the general simplicity of pleadings contemplated by the rules. It is worth noting that in the one illustrative form dealing with fraud, expressly made sufficient by Rule 84, the following allegation is offered: 'Defendant C.D. on or about * * * conveyed all his property, real and personal (or specify and describe) to defendant E.F. for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebtedness evidenced by the note above referred to.' As one court has correctly observed, in upholding such a simple allegation, the circumstances constituting the fraud could not have been pleaded with greater particularity without pleading evidence.
'In view, too, of the further provision of Rule 9(b) that malice, intent, knowledge and other condition of mind may be averred generally, the sufficiency of a pleading must largely depend upon the nature of the case, the complexity or simplicity of the transaction or occurrence, the relationship of the parties and the determination of how much circumstantial detail is necessary to give notice to the adverse party and enable him to prepare a responsive pleading.'
In view of the nature of the present case, and considerations, we believe that the complaint sufficiently apprises petitioners of the scope and character of plaintiff's claim.
Now, February 28th, 1964, it is ordered that the petitions of Sara L. Bokser, Lewis Bokser and Lewis Bokser, Inc., to dissolve the attachments be, and they are, denied.
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