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AETNA ELECTROPLATING CO. v. RAYMOND JENKINS AND JENKINS & ACTON (11/09/84)

filed: November 9, 1984.

AETNA ELECTROPLATING CO., INC., APPELLANT,
v.
RAYMOND JENKINS AND JENKINS & ACTON, P.C.



No. 1896 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 77-21644.

COUNSEL

Roland J. Christy, Spring House, for appellant.

George B. Ditter, Ambler, for appellees.

Brosky, Wieand and McEwen, JJ.

Author: Wieand

[ 335 Pa. Super. Page 285]

If an attorney, in order to induce the court to open a default judgment against his client without the prior posting of bond, promises in open court to guarantee personally any indebtedness found to be owing by his client, may the attorney subsequently defend an action on his promise of guarantee by alleging that the promise was not in writing and signed? The trial court sustained preliminary objections in the nature of a demurrer and dismissed the action on grounds that enforcement of the promise was barred by the statute of frauds. We reverse.*fn1

A preliminary objection in the nature of a demurrer "admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences." DeSantis v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770, 772 (1982). Preliminary objections can properly be sustained and a complaint dismissed only in cases that are clear and free from doubt. Any doubt must be resolved against the moving party. Only where it appears with certainty that, upon the facts averred, the law will not permit recovery can the complaint be dismissed and summary judgment entered for the defendant. Bickell v. Stein, 291 Pa. Super. 145, 149, 435 A.2d 610, 612 (1981) quoting Donnelly v. DeBourke, 280 Pa. Super. 486, 489-490, 421 A.2d 826, 828 (1980) (overruled on other grounds).

According to the averments of the complaint, Aetna Electroplating Co., Inc. (Aetna) had previously commenced an action in assumpsit against Damac, Inc. (Damac) to recover the sum of $26,875.45 owed for electroplating. A default judgment had been entered in that action when no answer was filed on behalf of Damac.*fn2 The default judgment was opened on petition after Raymond Jenkins, Esquire, attorney

[ 335 Pa. Super. Page 286]

    for Damac, in response to Aetna's expressed concern about delay and request for a bond, had assured the court "that he personally guaranteed the payment of any sum ultimately determined to be due from Damac to Aetna." Although there was no official record made of this conversation at the time, it was noted by the presiding judge in a bench memo and subsequently confirmed by him in a letter to Aetna's counsel. A judgment ultimately entered in favor of Aetna and against Damac for $34,759.73 could not be satisfied because Damac's assets had been seized by a secured creditor. Demand was then made upon Jenkins, the appellee. When Jenkins refused to pay his client's indebtedness, the instant action was commenced. Jenkins filed preliminary objections in the nature of a demurrer. The trial court concluded that Aetna could not enforce Jenkins' promise to pay his client's debt because the promise had not been in writing and signed by Jenkins.*fn3

It has been held, however, that "agreements made before the court need not be in writing." Bookwalter v. Bookwalter, 75 Pa. Super. 577, 580 (1921), citing Black v. Black, 206 Pa. 116, 118, 55 A. 847, 848 (1903). In the Bookwalter case, the agreement of counsel had been recorded in the trial court's decree; in the Black case, the agreement had been memorialized in a master's report. See also: Zvonik v. Zvonik, 291 Pa. Super. 309, 323, 435 A.2d 1236, 1243 (1981). In the instant case, the averments of the complaint were that counsel's promise had been memorialized in a bench memorandum and in a letter by the trial judge explaining to counsel why bond had not been required prior to opening the default judgment. Counsel cannot play fast and loose with the court. If he enters an agreement as part of a proceeding before the court, he cannot assert the statute of frauds as a defense to an action to enforce the same. The statute of frauds was intended to prevent fraud;

[ 335 Pa. Super. Page 287]

    it cannot be used as a vehicle to avoid agreements entered in open court. Compare: Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946) (oral agreement to convey land enforced when title ...


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