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GRETZ v. ESSLINGER'S (11/14/67)

decided: November 14, 1967.

GRETZ
v.
ESSLINGER'S, INC., APPELLANT



Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1963, No. 1477, in case of Karl Gretz v. Esslinger's, Inc.

COUNSEL

Abraham L. Shapiro, with him Norman C. Henss, Harold Greenberg, and Cohen, Shapiro, Berger & Cohen, for appellant.

Lester J. Schaffer, with him Herman N. Silver, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno and Mr. Justice Eagen join in this dissenting opinion.

Author: Cohen

[ 428 Pa. Page 91]

Appellee, Karl Gretz, in December, 1963, received an arbitration award of $40,000; ultimately judgment was entered on the award and was affirmed by this Court. Gretz v. Esslinger's, Inc., 416 Pa. 111, 204 A.2d 754 (1964). Subsequent to the rendition of the award, Gretz was adjudicated a bankrupt and the judgment was marked to the use of the trustee of the bankrupt estate. On February 2, 1965, the trustee as judgment creditor garnished one of appellant's (Esslinger's) bank accounts; the garnishee then paid the amount of the judgment plus interest and costs to date and the judgment creditor's attorney ordered the judgment satisfied against the garnishee.

[ 428 Pa. Page 92]

Thereafter, appellant filed the present petition to have the main judgment satisfied of record. In his answer to the petition, the trustee in bankruptcy admitted receipt of payment of the amount of the judgment plus interest and costs; but asserted that because the funds were "tied up" as a result of further proceedings instituted after payment to him by appellant in the federal district court which enjoined trustee from distributing the money to creditors of the bankrupt estate, he would not satisfy the judgment until appellant paid interest to the bankrupt estate. The court below denied appellant's motion for judgment on the pleadings.

The effect of the lower court's opinion is to permit a fiduciary who has been paid the full amount of a judgment plus interest and costs, to refuse to satisfy the judgment even though two acts of the legislature make the satisfaction mandatory. Act of March 14, 1876, P. L. 7, 12 P.S. § 978;*fn1 Act of March 27, 1865, P. L. 52, 12 P.S. § 977.*fn2

[ 428 Pa. Page 93]

At the moment that the garnishee paid the judgment in full plus interest and costs to date, an unqualified right accrued to the appellant to have the original judgment marked satisfied. It is clear that when the trustee executed on the judgment against the garnishee and received full satisfaction thereof, the defendant-appellant on the original judgment had met his full obligation on that judgment to the plaintiff-appellee, and satisfaction of the original judgment is required by the plain intendment of either Act.

The court below relied principally upon two cases: Felt v. Cook & Hackett, 95 Pa. 247 (1880); O'Connor v. Flick, 265 Pa. 49 (1919), wherein we held that in order for a defendant to be entitled to a decree requiring satisfaction of a judgment, he must produce competent evidence to support a finding of actual payment in full. Since, according to the lower court's view, no competent evidence was produced, it concluded that defendant-appellant was not entitled to satisfaction of the judgment. However, unlike the two cases relied upon by the lower court, here the defendant-appellant has produced the requisite competent evidence to support a finding of actual payment in full. Since proof of actual payment is the only prerequisite necessary to establish an unqualified right to have a judgment marked satisfied, appellee's answer admitting that the full amount of the judgment plus interest and costs had been paid clearly supplied the quantum of competent evidence required.

The lower court held that since the appellant chose to proceed on petition and answer rather than taking depositions, the ...


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