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BETHLEHEM STEEL CORPORATION v. TRI STATE INDUSTRIES (06/12/81)

filed: June 12, 1981.

BETHLEHEM STEEL CORPORATION,
v.
TRI STATE INDUSTRIES, INC., ET AL. APPEAL OF LEONA P. BOILEAU



No. 1265 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Bucks County at Nos. 72-355-09-1, 72-356-09-2 and 72-488-08-5.

COUNSEL

Cletus P. Lyman, Philadelphia, for appellant.

John G. Harkins, Jr., Doylestown, for appellees.

Spaeth, Cavanaugh and O'Kicki,*fn* JJ.

Author: Cavanaugh

[ 290 Pa. Super. Page 464]

Appellant Leona P. Boileau appeals the lower court's order dismissing her petition to strike a consent judgment and dismissing her preliminary objections. She argues that her petition to strike the consent judgment entered against her should have been granted for three reasons: that the judgment was entered without her authority; that the transfer of real estate pursuant to the judgment violates the statute of frauds; and that the complaint does not set forth a cause of action against her. She also contends that her

[ 290 Pa. Super. Page 465]

    preliminary objections to the amended complaint should have been sustained. We affirm.

In January, 1972 the plaintiff began actions in trespass, assumpsit, and equity against various defendants. Appellant's husband was a defendant in all three actions and the appellant was a defendant in the equity action. The complaints alleged that appellant's husband had embezzled funds from the plaintiff during the course of his employment. Appellant's husband hired an attorney to represent him in these matters. The attorney entered his appearance on behalf of both the appellant and her husband in the equity action. Around the time these lawsuits were begun the appellant was separating from her husband and was residing in another state. Settlement discussions were held between the plaintiff and the attorney who had entered his appearance for the appellant and her husband. As a result of these discussions in June 1972 two judgments were entered against the appellant and her husband. One judgment awarded damages in favor of the plaintiff and against various defendants jointly and severally, enjoined the defendants from transferring their property to anyone other than plaintiff, adjudged that defendant's property was equitably owned by the plaintiff, that plaintiff had an equitable lien thereon, and that the defendants held the property in a constructive trust for the benefit of the plaintiffs. The other judgment directed the appellant and her husband to convey their interest in all their real property to the plaintiff.

Appellant did not participate in the discussions which resulted in these judgments. However, within weeks after the consent judgments were entered, she was informed of the entry of judgment. At that time she objected to them and told her husband and Mr. O'Hare, the lawyer who had entered his appearance for her, that her husband and Mr. O'Hare did not represent her.

In July, 1972 Mr. O'Hare informed the plaintiff that appellant was unwilling to execute deeds as required by the judgments. Later in July, 1972 the court held a hearing at

[ 290 Pa. Super. Page 466]

    which the court designated the prothonotary to execute the deeds on appellant's behalf pursuant to statute.

In August, 1972 another hearing was held in which Mr. O'Hare informed the court and plaintiff that appellant had objected to the judgments and had stated that he did not represent her. Mr. O'Hare also stated that appellant knew the hearing was scheduled that day and knew the purpose of the hearing was to have the prothonotary execute documents on appellant's behalf. Appellant denies any such knowledge of the hearing. At the hearing the documents which appellant was supposed to execute were executed by the sheriff as ordered by the court.*fn1

Nearly six years later, in June, 1978, appellant filed the instant petition to strike off the judgment and later filed preliminary objections. The lower court dismissed the petition to strike and dismissed the preliminary objections and this appeal followed.

Since Pa.R.Civ.P. 1019(b) requires that fraud be alleged with particularity, appellant argues that the consent judgment should be stricken because the amended complaint filed against her did not sufficiently specify the fraudulent acts in which she was alleged to have conspired. For this argument appellant relies on paragraph 4(c) of the amended complaint. Appellant's brief 39. This argument ignores other parts of the complaint such as paragraph 4 and 4(a) which allege specific acts of fraud. R.R. 70a. Thus we agree with the lower court that the amended complaint is sufficiently specific. Lower court opinion 13.

Appellant also argues that the consent judgment should be stricken because of a violation of the statute of frauds. She contends that since consent judgments are like contracts, see discussion infra, and since the instant consent judgment, inter alia, directed her to convey real property to the plaintiff, the statute of frauds, 33 P.S. § 1, is applicable. Moreover since there is no writing signed by her or by her agent whose authority is in writing agreeing to the transfer

[ 290 Pa. Super. Page 467]

    of the realty, she asserts that the statute of frauds is violated and the judgment must be stricken. We assume without deciding that the statute of frauds applies to the instant case. Nevertheless the petition to strike the judgment was properly dismissed since ...


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