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HAZO v. GELTZ

November 2, 1977

ETHEL HAZO, Plaintiff,
v.
MARGARET E. GELTZ, EDWARD A. BURKARDT AND JOHN TELFORD, Defendants



The opinion of the court was delivered by: MARSH; WEIR

 Ethel Hazo, the plaintiff, brought a civil rights action against Margaret Geltz, Edward A. Burkardt and John Telford under 42 U.S.C. §§ 1983, 1985(3) and 28 U.S.C. § 1343. Pursuant to defendants' motion to dismiss, judgment was entered in favor of the defendants. Upon appeal, this judgment was vacated. Hazo v. Geltz, 537 F.2d 747 (3d Cir. 1976). Subsequently, the plaintiff Hazo, in an amended complaint, *fn1" alleges that the defendants conspired to deprive her "of her constitutional right to due process of law and equal treatment under the laws in violation of Title 42 United States Code, § 1985." (emphasis supplied). See amended complaint para. 30. *fn2" The plaintiff demands judgment in the amount of $75,000 *fn3" plus costs, which would include an attorney's fee, and an injunction against the defendants from "interfering with the constitutional rights of the plaintiff or otherwise enforcing the judgment entered in the Court of Common Pleas of Allegheny County at No. 6984 of 1973, Execution No. 611 of 1974."

 The Court of Appeals instructed that "[an] evidentiary hearing should be had or summary judgment may be entered on an adequate record." 537 F.2d at 751. We find an evidentiary hearing was had in the Court of Common Pleas of Allegheny County, Pennsylvania, and because of that court's judgment in favor of Geltz, the plaintiff Hazo is estopped from retrying the same issues in this federal court.

 In April, 1977, each defendant moved for summary judgment on the grounds that the issues about which plaintiff complains have already been tried and determined in the Court of Common Pleas of Allegheny County.

 Pursuant to stipulation, a copy of the records of the state action in the lawsuit of Geltz v. Hazo at No. 6984 of 1973, Execution No. 611 of 1974, including a transcript of the testimony was filed and made part of the record in this court. *fn4" Depositions of Margaret Geltz, John Telford and Ethel Hazo were filed. A hearing was held on August 30, 1977.

 In light of the facts determined in the state trial, and upon due consideration of the depositions filed, there does not appear to be any material issue of fact, and summary judgment should be entered in favor of the defendants and the case dismissed.

 It appears from the record that Hazo and Geltz entered into a written contract (see amended complaint Exhibit A). Disagreement developed and Geltz by her attorney, the defendant Edward A. Burkardt, filed an action of assumpsit in the Court of Common Pleas of Allegheny County, Pennsylvania, claiming $3,000, the sum allegedly due her. On December 27, 1973, Burkardt obtained judgment by default against Hazo for $3,081 including costs. *fn5" Upon this judgment, Burkardt issued execution *fn6" and a levy was made upon the personal property of Hazo. The levy was made by defendant John Telford, a Deputy Sheriff of Allegheny County.

 It also appears that ITT Sheraton Corporation of America, a corporation d/b/a Sheraton Motor Inn (hereinafter ITT) had previously secured a judgment at No. 2601 of 1973 against Hazo in the sum of $1,125, including costs. Upon this judgment, ITT, by its attorneys, had issued execution at No. 3788 of 1973, and Deputy Sheriff Telford had made a levy upon Hazo's personal property.

 Under both levies the personal property of Hazo was put up for Sheriff's Sale on April 17, 1974. The sale was conducted by Deputy Sheriff Telford. The sale at the ITT execution and the sale at the Geltz execution were one and the same. The property was purchased by Attorney Burkardt for about $99.00.

 Subsequently, Hazo petitioned the state court to open the default judgment of $3,081 obtained by Geltz. Hazo also petitioned the state court to set aside the Sheriff's Sale of Hazo's goods and enjoin Geltz from disposing of any goods purchased at the sale. *fn7"

 Hazo asserted in her petition to open judgment that common questions of law and fact exist in her petition to open and in her petition to set aside the ITT execution sale and that judicial economy and justice suggest that both actions be consolidated into one action for adjudication by the court. *fn8"

 On July 23, 1974, the state judge issued a rule to show cause why the petition to open judgment should not be consolidated with the petition to set aside the execution sale. Geltz objected, but it appears that the state judge did consolidate the actions. (See memorandum opinion attached as Appendix). *fn9"

 A consolidation involves the union of several actions into one which is tried as such. The identity of previously separate actions is not preserved, and separate verdicts and judgment are not rendered. Reeves v. ...


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