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March 24, 1965

William A. MOORE
George J. DEAL and J. Lucas

The opinion of the court was delivered by: DUSEN

Defendants' motion for summary judgment under F.R.Civ.P. 56(b) has been previously before this court. Since the facts involved in this motion are recited in the previous opinion, published in 203 F.Supp. 66 (E.D.Pa.1962), it will not be necessary to recite them again here.

When this matter was previously before the court, the undersigned ruled that defendants' motion for summary judgment would not be ready for decision until a final judgment was entered in the third-party action in Civil Action No. 24142. Subsequent to the filing of this opinion on defendants' previous motion for summary judgment in this Civil Action No. 26533, a new trial was had in Civil Action No. 24142 on the single issue of defendant's liability to the plaintiff. In that trial, the jury returned a verdict in favor of the defendant. *fn1" Judgment was entered in favor of the defendant and in favor of the third-party defendant, the plaintiff in the present action. The plaintiff then moved for a second new trial, which was granted on November 1, 1962. On December 11, 1962, in open court, the parties to Civil Action No. 24142 stipulated as to the entry of judgment in favor of plaintiff against the defendant in the sum of $ 15,000., and in favor of the defendant against the third-party defendant in the sum of $ 7500.

 The basic question involved in defendants' present motion for summary judgment is the effect of the verdict of the jury in the first trial and of the stipulated judgment entered against the third-party defendant in Civil Action No. 24142 on plaintiff's right to bring the present action.

 Plaintiff contends that the stipulated judgment entered December 11, 1962, in Civil Action No. 24142 should not preclude him from bringing the present action. The basis of plaintiff's contention is the fact that throughout the proceedings in Civil Action No. 24142 plaintiff, as third-party defendant in that action, was represented not by counsel of his own choosing but by counsel of his insurance carrier, who, plaintiff alleges, did not exercise due care in the protection of his interests in that action. Plaintiff claims that due to the actions of his counsel, he was prevented from having his day in court and should, therefore, not be bound by a stipulated settlement made in his name by an insurance-company-selected lawyer who owed no loyalty to him.

 The court recognizes the damaging nature of the statements made to the jury by counsel for the third-party defendant in Civil Action No. 24142, as pointed out by Judge Kraft in his opinion granting the first new trial, reported at 196 F.Supp. 927 (E.D.Pa.1961). However, plaintiff has not cited nor research disclosed any authority supporting his position. *fn2" The rule stated in the Restatement of Judgments, Sec. 4, is that a valid judgment rendered by a court having jurisdiction over the parties and over the subject matter and in a proceeding in which the parties have had a reasonable opportunity to be heard can be attacked only in the proceeding itself or by a direct attack in equity. *fn3" It is noted in that connection that no attempt in Civil Action No. 24142 has been made to set aside the stipulated judgment of December 11, 1962, even though more than two years have elapsed since that date.

 The binding effect of consent judgments on subsequent litigation between the parties was discussed by the Supreme Court of Pennsylvania in the recent case of Zampetti v. Cavanaugh, 406 Pa. 259, 176 A.2d 906 (1962). That case involved a derivative suit brought on behalf of a corporation by the plaintiff as a stockholder. The court dismissed defendant's contentions that the plaintiff was not a stockholder, stating that the plaintiff's status as a stockholder had been determined by a prior consent decree between the parties; hence was conclusive in the subsequent action. The rule was announced as follows:

 'Although a consent decree is not a legal determination by the court of the matters in controversy (citing cases), it binds the parties with the same force and effect as if a final decree has been rendered after a full hearing upon the merits (citing cases). The fact that without the consent of the parties the court might not have rendered the judgment does not affect its effect as res judicata (citing case). Were this not so, a consent decree would have little value.' *fn4"

 A similar finding was made in the case of Baran v. Baran, 166 Pa.Super. 532, 72 A.2d 623 (1950). There the court stated:

 'A decree entered by consent of the parties is so conclusive that it will be reviewed only on a showing that an objecting party's consent was obtained by fraud or that it was based upon a mutual mistake.' *fn5"

 The case of Blanchard v. Wilt, 410 Pa. 356, 188 A.2d 722 (1963), cited by the plaintiff, stands for the proposition that a consent verdict does not operate in favor of one who was not a party to the action, and is not relevant to the facts presented by the instant case.

 The rule is well settled in the law that a valid and final judgment rendered in an action to recover money is conclusive between the parties in a subsequent action on a different claim as to issues actually determined in the prior action, Restatement of Judgments, 45; Simodejka v. Williams, 360 Pa. 332, 62 A.2d 17 (1948). The Zampetti and Baran cases, supra, establish that the rule applies equally to judgments rendered by consent of the parties. Hence, until such time as the stipulated judgment entered in Civil action No. 24142 against Moore and in favor of Deal is vacated, that judgment remains in full force and effect and the plaintiff is collaterally estopped from bringing the present action against Deal. *fn6"

 However, in view of the recent expansion of the concept of preclusion *fn8" and the underlying policy of res judicata that there be an end to litigation, the undersigned respectfully submits that the Third Circuit might reach a different conclusion in this case and will, therefore, certify the order as to Lucas for prompt appeal under 28 U.S.C. § 1292(b).

 The court is not persuaded that defendants' motion for summary judgment is not timely. F.R.Civ.P. 56(b) authorizes a defendant to move at any time for summary judgment in his favor. The case of Woods v. Robb, 171 F.2d 539 (5th Cir. 1948), cited by the plaintiff, is not controlling. In that case, it was held not to be reversible error for the trial judge to refuse to rule on plaintiff's motion for summary judgment, which plaintiff called to the attention of the trial judge after the trial had begun. The case of H. J. Heinz Company v. Beech-Nut Life Savers, Inc., 181 F.Supp. 452 (S.D.N.Y.1960), presents a factual situation closer to that of the case at hand. In that case, defendant's motion for summary judgment was filed after the pretrial order was filed and approximately one and one-half months before trial. The court found that although possibly ...

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