alleges that the sale was "arbitrary, capricious and otherwise unlawful and is no more than a taking of property without just compensation." Further, the petition avers that the circumstances of the sale "suggest extreme irregularities, lack of authority and fraud in the sale and delivery of the goods." The petition also asserts that ITT and Geltz "may have conspired to defraud the Petitioner herein [Hazo] of the market value of the goods."
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.
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).
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. Philadelphia Gas Works, 107 Pa. Super. 422, 164 A. 132 (1933).
Since the actions were consolidated by the state judge at the instance of Hazo she is estopped from denying that the two actions, i.e., (1) the petition to open the Geltz judgment and (2) the petition to set aside the execution sale, must be considered as a unity.
After the state court hearing, the judge on August 6, 1974, denied Hazo's petition to open judgment and her petition to set aside the execution sale.
Hazo then appealed to the Superior Court of Pennsylvania and on October 11, 1974, the judge filed a consolidated opinion captioned ITT Sheraton Corporation of America, a corporation, d/b/a Sheraton Motor Inn, Plaintiff, v. Ethel Hazo, an individual, Defendant, Execution No. 3788 of 1973 and Margaret K. (sic) Geltz, Plaintiff, v. Ethel Hazo, d/b/a Moses Hazo Company, Defendant, No. 6984 of 1973. (See Appendix. The memorandum opinion of the state judge is filed at Judgment No. 2601 of 1973). According to the opinion, the state court decided that the Geltz judgment against Hazo was valid, and that nothing irregular or illegal occurred at the two levies or at the Sheriff's Sale and that it, therefore, was a valid sale.
On February 3, 1975, Hazo discontinued her appeal to the Superior Court
after filing her civil rights complaint on December 24, 1974 in this court.
Hazo's amended complaint in her civil rights action alleges a conspiracy by the three defendants and specific acts in support thereof. Although it does not appear that a conspiracy by the three defendants was charged in the state court, substantially all of the material facts alleged by Hazo to support a conspiracy in this federal court were brought out in the state court trial and were decided against Hazo.
The bare conclusory allegation of a civil conspiracy in Hazo's civil rights action adds nothing to the matters already litigated in the state court. Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir. 1959).
"The essence of conspiracy is an agreement -- together with an overt act -- to do an unlawful act, or a lawful act in an unlawful manner." Edwards v. James Stewart & Co., 82 U.S. App. D.C. 123, 160 F.2d 935, 936-937 (1947). In the light of the adjudication of the state court there were no unlawful acts nor lawful acts done in an unlawful manner, but rather a valid default judgment based on proper service of the complaint and proper levies and a lawful Sheriff's Sale. The few alleged acts, if any, which were not brought out in the state court trial are, standing alone, insufficient to establish that the Geltz default judgment was invalid and that the Sheriff's Sale was unlawful.
Hazo has sought through the vehicle of a § 1985 action (amended complaint para. 30) which we assume was meant to be § 1983, for damages and injunctive relief, to have a lower federal court engage in what essentially constitutes relitigation of issues already decided by the state court. Having been content to forego her appeal to the Superior Court of Pennsylvania, the plaintiff is now barred by the principle of collateral estoppel from obtaining a review of the state court proceedings in the lower federal court. Cf. Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583 (3rd Cir. 1975).
Guided by the decision in Angel v. Bullington, 330 U.S. 183, 91 L. Ed. 832, 67 S. Ct. 657 (1947), the federal courts have held that litigants may not seek to have redetermined, by original actions in federal district courts, issues already settled in a prior state court adjudication.
The Civil Rights Act was not designed to be used as a substitute for the right of appeal or as a vehicle for collaterally attacking a final judgment of a state court and relitigating the issues which the state court has decided. P I Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972); Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970).
The effect of collateral estoppel cannot be avoided by recasting adjudicated issues in the form of an action under the Civil Rights Act. Cf. Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972); P I Enterprises, Inc. v. Cataldo, supra.
Hazo is not entitled to an encore.
It was stated in P I Enterprises, Inc. v. Cataldo, supra at 1015:
"Obviously the federal cause of action is different from that brought in state court, but the doctrine of collateral estoppel 'precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether [the judgment] was based on the same cause of action as the second suit. Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S. Ct. 865, 867, 99 L. Ed. 1122 (1955). (emphasis added)."
To the same effect is Murphy v. Landsburg, 490 F.2d 319 (3rd Cir. 1973), citing § 68 of the Restatement of Judgments (1942) and 1 B Moore's Federal Practice § 0.441(2) at 3777 (2d Ed. 1965).
It was further stated in P I Enterprises, Inc., supra, at 1015:
"The application of collateral estoppel in federal courts is no longer grounded upon the mechanical requirements of mutuality. Rather, as the Supreme Court stated with regard to patent litigation in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), the significant question is whether a party has had a 'full and fair' opportunity for judicial resolution of the same issue."