Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1962, No. 2508, in case of Philadelphia Title Insurance Company v. Globe Consumer Discount Company.
Howard Saul Marcu, with him Daniel Marcu, and Marcu, Marcu and Marcu, for appellant.
Philip Shuchman, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J. Concurring Opinion by Montgomery, J.
[ 206 Pa. Super. Page 374]
This is an appeal from an order sustaining defendant's preliminary objections to plaintiff's complaint in assumpsit and dismissing the complaint on the ground that it failed to state a cause of action.
In determining whether or not the action of the lower court is correct, we must deem to be true all facts well pleaded in the complaint, together with all reasonable inferences therefrom, but not the pleader's conclusions or averments of law. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964). Viewed in this manner, the facts are as follows:
Appellant in this case was the plaintiff below and is a title insurance company. Appellee herein was the defendant below and is a consumer discount company. On April 20, 1961, defendant entered a judgment in Philadelphia County against Edmund A. Jezemski and Apolonia A. Jezemski in the amount of $12,000.00 by virtue of a judgment note purportedly executed by the Jezemskis. On March 7, 1962, the plaintiff insured a certain mortgage in the amount of $28,000.00 purportedly given by Edmund A. Jezemski and Apolonia A. Jezemski to one Lois Medinets covering premises at 1130 North 40th Street, Philadelphia. At the time of the mortgage settlement the plaintiff paid to the defendant the sum of $6,100.00 and received from the defendant an order to satisfy the aforesaid judgment which order the plaintiff filed of record. The plaintiff,
[ 206 Pa. Super. Page 375]
who was given authority by the mortgagee to disburse the entire proceeds of the mortgage, made the $6,100.00 payment to the defendant because it believed that the judgment was a valid lien upon the premises covered by the mortgage. Plaintiff then insured the mortgage of Lois Medinets as a first lien upon the premises at 1130 North 40th Street. Some time later in an action to quiet title it was determined that the signature of Edmund A. Jezemski to the note and the mortgage were forgeries. The mortgage which plaintiff insured for Lois Medinets was discharged and the plaintiff was obliged to repay the entire proceeds of the mortgage to Lois Medinets.
In its first count the plaintiff alleges that at the time the defendant accepted payment of its judgment note and gave an order to satisfy the same it knew that the signature of Edmund A. Jezemski on the note was a forgery, having been advised of this by Edmund's attorney about two months after defendant entered its judgment. The plaintiff asks that the sum of $6,100.00 be returned to it on the ground that defendant committed a fraud. In a second count the plaintiff alleges that a mutual mistake of fact existed on the part of the plaintiff and the defendant as to the genuineness of the signature of Edmund A. Jezemski and the validity of the judgment when the plaintiff made payment. Plaintiff in its second count asks for the return of the $6,100.00 on the basis of a mutual mistake of fact. In the first count plaintiff alleges that the defendant has been unjustly enriched by reason of the fraud and in the second count it alleges that the defendant has been unjustly enriched by reason of the mutual mistake of fact.
Plaintiff's complaint is fatally defective in both counts. To recover on the first count plaintiff would have to prove that its payment of $6,100.00 to defendant was ...