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GILDA G. NEUSTEIN v. INSURANCE PLACEMENT FACILITY PENNSYLVANIA (10/17/79)

filed: October 17, 1979.

GILDA G. NEUSTEIN
v.
INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA, APPELLANT. DAVID N. NEUSTEIN V. INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA AND PENN STATE MUTUAL INSURANCE COMPANY. APPEAL OF INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA. BERNARD WANETICK T/A B & W IMPORT & SALES COMPANY V. INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA, APPELLANT



No. 1279 April Term, 1978, No. 1280 April Term, 1978, No. 1281 April Term, 1978, Appeal from the Order entered August 4, 1978, in the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at Nos. 2508, 2509, and 2510 April Term, 1972 -- In Assumpsit.

COUNSEL

Richard F. Andracki, Pittsburgh, for appellant Ins. Placement Facility of Pennsylvania.

Daniel M. Berger, Pittsburgh, for appellees Neustein and Wanetick t/a B & W Import & Sales Co.

Cercone, P. J., and Wieand and Hoffman, JJ. Wieand, J., files a concurring statement.

Author: Hoffman

[ 271 Pa. Super. Page 128]

Appellant contends that the lower court erred in denying its petition for a rule to show cause why satisfaction should not be set aside and judgment opened. We disagree and, accordingly, affirm the order of the lower court.

This case, involving three appeals from the Court of Common Pleas of Allegheny County, arises from a fire loss to premises in which the three appellees had an interest. Appellant had issued a fire insurance policy on the premises, and appellees brought separate suits to recover the insurance proceeds. Appellant defended on the basis that the fire loss was the result of arson in which the appellees had participated and concealed from appellant. Following a jury verdict in favor of appellees, the common pleas court denied appellant's post-trial motions, and, on appeal, our Court affirmed per curiam without opinion. 238 Pa. Super. 728, 356 A.2d 820 (1976). Appellant then paid the judgments,

[ 271 Pa. Super. Page 129]

    and appellees had the judgments satisfied of record on January 27, 1976.

Appellant states that on March 2, 1976, a federal grand jury indicted appellee David N. Neustein for mail fraud, alleging that the fire was set intentionally for the purpose of fraudulently obtaining insurance proceeds from appellant through the use of the mails. A jury found Neustein guilty on all counts of the indictment. His conviction was upheld by the United States Court of Appeals for the Third Circuit. 562 F.2d 43 (1977). On March 27, 1978, the United States Supreme Court denied certiorari. 434 U.S. 1062, 98 S.Ct. 1234, 55 L.Ed.2d 762 (1978). Thereafter, appellant filed a petition for a rule to show cause why satisfaction should not be set aside and judgment opened. On August 4, 1978, the lower court denied the petition, and this appeal followed.*fn1

The satisfaction of a judgment ordinarily extinguishes it. See 7 Standard Pennsylvania Practice 787, and cases cited therein. "In a proper case, however, the entry of satisfaction of a judgment may be canceled, struck off, or vacated by a party to the record or his personal representative or successor in interest." Id. at 823 (footnote omitted). A court may properly strike the entry of satisfaction of judgment where the satisfaction is obtained by fraud or mistake. See, e. g., Epstein v. Kramer, 365 Pa. 589, 76 A.2d 212 (1950); Shoup v. Shoup, 205 Pa. 22, 54 A. 476 (1903); Appeal of Read, 126 Pa. 415, 17 A. 621 (1889). See generally 7 Standard Pennsylvania Practice 824.

In the instant case, appellant contends that the lower court should have granted its petition because appellee David N. Neustein committed fraud in subverting the judicial process; appellant acted with due diligence in defending its interests; appellant could not fully defend itself from the judgment due to deceit by Neustein which ...


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