Circuit has decided against inferring bad faith merely from the fact of non-disclosure, and this record creates enough of a question regarding Dawson's intent as to preclude the application of the extreme remedy of judicial estoppel. See Ryan Operations, 81 F.3d at 364-65. As a result, the court may submit the question of whether Dawson acted in bad faith with intent to manipulate or mislead the courts to the jury. See id. Counsel shall submit proposed jury questions that include this issue.
Wentworth argues in the alternative that even if this court will not utilize the doctrine of judicial estoppel, Dawson lacks standing and should be dismissed as a plaintiff. The issue of whether the Trustee alone has standing is tangential at best given the representation that "Mr. Dawson and the Trustee have agreed that all proceeds are to be deposited into the Bankruptcy Court and will be distributed by that Court." Pl. Response at 21. Dawson will remain as a plaintiff in this matter.
B. The Release Between Dawson and Wentworth
Wentworth asserts that the letter Dawson signed precludes his current claim, and that Dawson cannot argue that fraud or economic duress invalidates the signed release. Wentworth also argues that Dawson's initial acceptance of the release is a ratification of its terms. Wentworth's arguments do not persuade this court to grant summary judgment.
Dawson's claim of economic duress cannot be discounted at this time. An attempt to avoid a release on the ground of economic duress will be rejected when both parties were represented by competent counsel. See Three Rivers Motors Co. v. Ford Motor Co., 522 F.2d 885, 893-94 (1975). Under Pennsylvania law, in situations in which the parties deal on equal terms and at arm's length, a presumption arises that the person alleging duress possesses ordinary firmness regarding that release, and absent threats of bodily harm, a person who has been able to consult with counsel cannot later claim that the release was executed under duress. Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 233 A.2d 519, 521 (1967); see also Killian v. McCulloch, 873 F. Supp. 938 (E.D. Pa. 1995). In Degenhardt v. Dillon Co., 669 A.2d 946, 952 (1996), the Pennsylvania Supreme Court stated that a reasonable opportunity to consult counsel before contracting vitiates a claim of economic duress. Despite the broad language set forth in Degenhardt, both parties in that case had counsel and it is unclear whether the rules set forth in Carrier apply if one party cannot afford counsel, which is Dawson's position here.
The present record also does not provide enough of an indication to determine other issues as a matter of law, i.e., whether Dawson can demonstrate that terms were fraudulently omitted from the contract, Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1299-1301 (3d Cir. 1996), or whether Dawson's course of conduct amounted to ratification of the release. Cf. International Club Brokers v. Aleeda Corp., 364 A.2d 470 (1976).
C. Fraudulent Transfer Claims and Receivership
Wentworth claims that the Trustee's fraudulent transfer claims fail due to insufficient evidence, but whether the Trustee can demonstrate that the transaction did not confer value reasonably equivalent to the value of assets transferred to Dawson raises a genuine issue of material fact. 11 U.S.C. § 548(a)(2) (1993); Def. Mot. Ex. B; Pl. Resp. Exs. 8, 15, 16, 20, 23. As for the issue of appointing a receiver, the question is premature at this point in time.
Accordingly, summary judgment is denied.
BY THE COURT:
MARVIN KATZ, J.