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filed: May 26, 1987.


Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 85-5784.


Robert G. Delgreco, Jr., Pittsburgh, for appellant.

James T. Carney, Pittsburgh, for appellee.

Cirillo, President Judge, and Rowley and Popovich, JJ.

Author: Rowley

[ 364 Pa. Super. Page 295]


This is a direct appeal from a partial judgment on the pleadings entered in favor of United States Steel and Carnegie

[ 364 Pa. Super. Page 296]

Pension Fund [plaintiff].*fn1 After having considered the matter under the applicable standard of review, see Jones v. Travelers Insurance Co., 356 Pa. Super. 213, 514 A.2d 576 (1986), we affirm.

In 1940, Joseph Rikvalsky retired from his employment with United States Steel Corporation and qualified for a pension payable by plaintiff. In 1967, Mr. Rikvalsky died. The defendants, who are Mr. Rikvalsky's daughter and grandson, continued to accept the decedent's pension checks, signing his name thereto, then endorsing them and cashing or depositing them to their own use. Defendants continued this practice until 1983.

Plaintiff filed a civil action in two counts. In the first count, an action "for monies had and received," the foregoing facts are alleged. To these allegations, however, the defendants declined to answer invoking their Fifth Amendment right against self-incrimination. In New Matter, the defendants raised the statute of limitations as a bar to recovery of any amounts prior to 1979. See 42 Pa.C.S. ยง 5525(4). Plaintiff filed an answer to defendant's New Matter.*fn2

On appeal the defendants raise two issues, both of which have been discussed and decided by the trial court. The trial court, relying on City of Philadelphia v. Kenny, 28 Pa. Commw. 531,

[ 364 Pa. Super. Page 297369]

A.2d 1343 (1977), cert. den., 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281 (1978), held that the defendants' assertion of their privilege against self-incrimination, along with other matters contained in the pleadings, warranted an adverse inference against them that supported the grant of the judgment on the pleadings.

Defendants first argue that the trial court erred in drawing a negative inference from the assertion of their Fifth Amendment right against self-incrimination when it ruled on plaintiff's motion for judgment on the pleadings. Defendants claim that the negative inference should not be drawn in this civil action because "serious criminal implications are clearly recognizable." Appellants' brief at 10. They point to the possibility that they could be subject to criminal prosecution for various theft offenses based on the events that are alleged in plaintiff's complaint.

This issue was decided against defendants in Kenny. In that case, the City of Philadelphia filed complaints in assumpsit against several taxpayers alleging that they had not paid the wage tax for the years set forth in the complaints. The City demanded payment of the delinquent taxes plus interest and penalties. In their answers, the taxpayers responded to certain allegations in the City's complaints by asserting their Fifth Amendment right against self-incrimination. After the pleadings were closed, the City moved for judgment on the pleadings in several of the cases. The trial court granted the relief sought. On appeal, the Commonwealth Court found that the actions were completely civil in nature and that the taxpayers had a reasonable apprehension that they could be subjected to quasi-criminal proceedings for their failure to file the required tax returns. Based on this reasonable apprehension of prosecution, the Court found that the taxpayers could assert the privilege in the action. The Court, however, went on to adopt the rule that, "while a defendant in a civil case may invoke the privilege and it may not be used

[ 364 Pa. Super. Page 298]

    against him in any way in a subsequent criminal prosecution, the court in the civil case may draw any adverse inference which is reasonable from the assertion of the privilege." Id. at 540-541, 369 A.2d at 1349 (emphasis in original; citations omitted). The Court went on to find that a reasonable inference to be drawn from the taxpayers' assertion of the privilege was that a truthful response would fail to deny the City's allegations; that the allegations were admitted by the failure to deny them; and, that "the assertion of the privilege leaves no unresolved questions of fact which would render judgment on the pleadings . . . inappropriate." Id. at 541-542, 369 A.2d at 1349 (emphasis in original). Hence, we find no error in the trial court's decision to draw an adverse inference from defendants' assertion of their right against self-incrimination.*fn3

As an alternative ground for relief, defendants also argue in their first issue that the negative inference to be drawn from the assertion of their right against self-incrimination must be reasonable and that the inference drawn by the court presently was not reasonable.*fn4 Specifically, defendants argue that it is unreasonable to infer from their assertion of the right against self-incrimination that both defendants consistently converted the checks from 1967 to 1983. We have reviewed the record and have accorded due consideration to the argument advanced by defendants.

[ 364 Pa. Super. Page 299]

Judge Zeleznik, in his opinion in support of the judgment, has adequately discussed and properly disposed of the issue.

In their second issue, defendants argue that the trial court could not properly grant judgment on the pleadings because their assertion of the statute of limitations presents an unresolved question of fact and law. The trial court found that defendants were estopped from raising the affirmative defense by their concealment of the fact of Mr. Rikvalsky's death for some 16 years. The defendants in their New Matter aver in paragraph 16 that plaintiff "knew or should have known of" Mr. Rikvalsky's death. Although plaintiff agrees with defendants that in ruling on its motion for judgment on the pleadings the trial court was limited to considering plaintiff's complaint and defendants' answer, see Luria Steel & Trading Corp. v. Dittig, 414 Pa. 197, 199 A.2d 465 (1964), plaintiff submits that "the admitted or non-responded to allegations of the complaint . . ." justified the trial court's conclusion. Plaintiff's brief at 10-11. We agree.

Plaintiff, in paragraph 8 of its complaint, averred that defendants received the pension checks payable to the decedent and converted the monies received to their own accounts. To this averment, defendants asserted their right against self-incrimination. As we have previously concluded, this assertion constitutes an admission. Faced with these pleadings, we find no error in the trial court's conclusion that the defendants' "conduct of affixing the pensioner's name on his checks for sixteen years caused the plaintiff to relax its vigilance and deviate from its right of inquiry, estopping the defendants from invoking the bar of the statute." Trial court's op. at 9. See Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983) (elements of equitable estoppel are inducement and justifiable reliance).

Judgment affirmed.

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