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GODINA v. OSWALD ET AL. (06/17/65)

decided: June 17, 1965.

GODINA
v.
OSWALD ET AL., APPELLANTS



Appeals from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1961, No. 542, in case of Joseph Godina, administrator of estate of Josephine Godina, deceased, v. Robert J. Oswald et al.

COUNSEL

Charles F. Dean, for appellants.

Gary F. Sharlock, with him Mercer & Buckley, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.

Author: Watkins

[ 206 Pa. Super. Page 53]

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County entered on a verdict of a jury in an attachment execution action, in the amount of $4,987.85 in favor of the judgment creditor Joseph Godina, administrator of the estate of Josephine Godina, deceased, the appellee, and against Robert J. Oswald and Prosper W. Oswald, the garnishees-appellants; and from the refusal of motions for judgment n.o.v. and for a new trial.

The judgment upon which this attachment issued was obtained against John K. Oswald the defendant judgment debtor in Mercer County as the result of a wrongful death action. The verdict entered against him amounted to $30,000. The defendant's insurer paid the appellee $10,000, his total coverage, and the remaining $20,000 was reduced to judgment.

[ 206 Pa. Super. Page 54]

The record shows that at the time of the accident on July 28, 1957 and at the time of the trial in Mercer County the defendant was a member of a partnership with his two brothers, the garnishees in this action, in a meat market. The record also shows that this partnership interest was the only property of the defendant in severalty at that time and since that time.

Immediately before and during the trial of the civil action the defendant executed a series of documents purporting to transfer his interest in the partnership and the real estate which housed it to Prosper and Robert, for a stated consideration of $4,987.85. The trial commenced on May 5, 1958. The next day a deed was recorded which purportedly conveyed John's interest to his brothers. The verdict was received on May 8, 1958. The certificate withdrawing John's name from the fictitious name registration was not filed until June 19, 1958. The partnership dissolution was dated April 30, 1958, but Prosper testified he did not remember when it was executed.

The consideration was $4,987.85 and although it is apparent from this record that a very careful conveyancing job was performed, no records were introduced to support the payment of the consideration. If it were in fact paid it would be a fair consideration. John testified that he received various checks and cash from his brothers over several weeks and spent the entire amount in the same period. No receipts or bank deposits record the event. John was unable to account for his expenditures. Prosper and Robert each testified that $4,000 was paid in cash on one occasion. He demanded cash, received cash and gave no receipt. There was no change in the relationship of the partners after the transfer. Prosper testified: "Everything is the same". John continued in the business at the same rate of compensation as he earned prior to the trial.

[ 206 Pa. Super. Page 55]

From this record the jury could well infer that the garnishees and the defendant were aware that a judgment against John would probably be forthcoming in a matter of days; that his insurance coverage might be inadequate to cover the verdict; that John's assets, with the assistance of the garnishees, were converted into cash, which easily could be concealed; that there were no records of the receiving of the monies and no explanation as to what happened to the cash; that after the conveyance the business was conducted as usual, John's position did not change; and that the relationship of the brothers under all the facts of this transaction suggest a ...


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