Bianco v. Pullo
171 A.2d 620
Pa. Super. Ct.
1961
Check Treatment

*1 she the referee before testimony Her own because resigned bnt of absence, for leave did not ask of her pregnancy. affirmed.

Decision Appellant, *2 Argued March 1961. Before P. J., Er- Rhodes, vin, Wright, Woodside, Watkins, Montgomery, JJ. Flood,

Romolo J. with him DiOintio, Edward W. Furia, appellant. Furia & DiOintio, Arnold F. with him diSilvestro, diSilvestro & diSil- appellee. vestro, Opinion by J., June 15, 1961: Montgomery, appeal

This is by an Alice plaintiff, from Bianco, an granting prayer order garnishee’s why show cause obtained Alice Bianco garnishee by opened default should not be and the let into a defense. Alice obtained a plaintiff, Bianco, undertaker, Louis F. defendant, Pullo, September $1,787.63 in the 15,1954

on a note for a given loan.

On suit said instituted May defendant 21, 1954, against Michelina for alleged Dramis, nonpayment a funeral bill son. incurred because of the burial of Hers- represented defendant was Albert S. Esquire. No kowitz, answer filed Dramis and Pullo obtained on June 15, 1954, ment in the sum of $1,094.32.

On September Alice 15, 1954, plaintiff, *3 issued a Michel- writ of attachment execution naming filed ina Dramis garnishee. Interrogatories as were on October and on judgment 14, 1954, August 17, 1956, of entered in was Michelina Dramis the sum interroga- failure to file $1,787.63 answers tories. September Michelina Dramis died on Morrone of appointed and Alexander was executor estate. and a the executor filed

On June 3, 1957, the entered to show cause why judgment rule com- fraud alleging not be decedent should opened, the full from in Pullo had payment mitted who received Alice the Plaintiff Michelina Dramis. rule. oppose to creditor of intervened Pullo, ment he that testified taken Pullo who were Depositions deceived he in full that had but paid in fact been had loan obtained a and Mr. Herskowitz, his attorney, in- of the lawsuit strength on Herskowitz through that He testified Michelina Dramis. stituted and to Herskowitz deception later confessed he to Herskowitz. repay efforts made some court ordered November 3, On Pullo entered to the rule discharge of the fact that Dramis because was of perjurer a confessed and Herskowitz opinion that it Attorney duty who been had deceived immediately by Pullo, to action the true facts take affirmative to learning than cause the to be rather stand stricken and to attempt recoup his own loss. a; petition On November filed the executor 29, 1960, to garnishee on to December filed strike separate petition 1, 1960, off the The an order lower court entered judgment. absolute the rule to direct- making ing the to file an answer garnishee interrogatories to felt its sole reason the fact giving as so doing penalized garnishee’s estate would unduly if the in sum of $1,787.63 permitted stand view of the fact the maximum actually owed is $1,094.32. taking executor since has, of this filed his interrogatories answer appeal, he wherein denies that sum whatsoever was any owing at the time writ served. attachment was provide Rules of Civil Procedure Pennsylvania time within the allowed file that if fails to to interrogatories endorsed answer with notice praecipe prothonotary, plaintiff, plead, favor of the enter shall *4 in the same amount as judg- against plaintiff against of the defendant, together ment costs. Pa. R. C. interest and P. No. 1277(a); with enforcement of the de- strict rule, No. Under 3102. in be entered the full must fault how- against defendant; the plaintiff’s in it as it is this case established, is clearly where ever, of the strict meaning record words itself, and inequitable injus- lead to be would of the rule to refuse to has the enforce right court lower tice, in not ends rules are themselves Procedural the rule. but means as expressed prin- in whereby justice, legal is administered. to ciples, are not to They be exalted the status of objectives. substantive Beatty, McKay 348 Pa. 35 A. 2d 264. in case this Obviously, strict enforcement of the rule to undue would lead hardship unjust one enrichment and of the other. Default judgments garnishees opened cause. Best Inc. v. may Sim- good TV, 134 A. 2d 886. berg, Plaintiff contends that the executor is guilty laches because time between the long delay ment was entered time petition and the conten- filed. this judgment was There is merit after tion. Michelina Dramis weeks died few only executor was taken and the real discovered the when he to sell attempted dis- estate decedent. Also the record owned origi- closes that from 1957 when during years filed, nal petition until on when hearing August, advantage the plaintiff was finally taking held, fraudulent other similar position pursuing per- other Pullo had obtained against which judgments this victimized. During sons he had whom similarly the judg- holding was apparently plaintiff period, expose tried to case in ment reserve had failed. others attempts her similar when not did executor certainly the part delay Any injure plaintiff. not furnish do does injury, not does

A delay in- of laches the doctrine makes relief reason 2d 19 A. 341 Pa. 501, Estate, Randall's applicable. A. 712. Pa. 243, v. Carpenter, 272; Gribben contends further opening properly its discretion not exercise did Petitions the garnishee. plaintiff’s tri- are addressed judgments to *5 will be given Relief al court’s sound discretion. rea- where such is filed, promptly defense shown or explained excused, sonably Pa. merits. exist Pinsky Master, Products burg Fuel v. Waynes A. 2d Co. 727; Mfg. City 112 A. 145. Corporation, fulfilled to be find these conditions We all disposed been case. The tardiness has present alleged explained reasonably of above. The default has been Dramis if not in that Michelina excused entirely All Pullo. duped an illiterate who was completely to these rise gave her which served papers course, Pullo were her to proceedings given by who, Rather, import. to her their nature or did not explain assurance he lulled her into a sense of with security finally matters. And he was to these attending merits. a defense shown on the there is certainly acquired is enforce this plaintiff seeking tak- in effect default against Dramis, Her perpetrated of the fraud advantage ing she for monies due her Pullo and actual claim is col- contends that failed in her efforts having now will from Pullo and she lect finding assets, directly recoup enforce Pullo’s fraudulent now inno- the monies she loaned to Pullo by penalizing to these proceedings cent who is person deceit and cannot through trickery. Equity give fraud, such an unconscionable result. approbation the lower court’s if It was finding the maximum nishee owed sum anything, the circumstances fl,094.32. would Under possible plain- here is not debt to the presented decedent tiff in amount. The and his any except the funeral bill never owed anything paid. had been which Pullo ob- Michelina Dramis and which tained garnishment for the plaintiff’s proceedings basis re- *6 fraudu- issue entirely in the at was judgment suiting lent. trial

In of is the the exercise its discretion, of the as Chancellor determine judge weight sitting and there the the of evidence and witnesses credibility over- no of is is abuse this discretion unless the law mani- ridden is or the exercised judgment misapplied, partiality, of or there is evidence festly unreasonable, Pa. or ill 317 bias will. v. prejudice, Mielcuszny Rosol, case. present A. 236. None are this of these 91, 176 clear order of Without such abuse of discretion, lower court will not reversed on Poelcher appeal. be v. Pa. v. 366 76 A. 2d Berkowitz 3, 222; Kass, Poelcher, 40 A. 2d 691. 263,

Order affirmed. Concurring J. : Opinion bx Flood, I concur in the of this but judgment opening be- opinion extent Judge indicated in Burch's low. Judgment against was entered garnishee suit defendant’s in the amount against opinion of the assumes $1,094.32. majority defendant fraudulent character of this judgment ex- petition by garnishee. However, ecutor of the estate to that garnishee’s discharged was upon fraud ground court on November 1960. defend-

In the rule to his opinion discharging Judge garnishee, ant Pullo’s from taint- that the fraud came said evidence Burch Judge from the order appeal ed An sources. Burch Court to this this was taken refusing has It it was withdrawn. on January 14, 1961, but fraud no judicata res there become therefore his judgment in obtaining the defendant proved against attacked it cannot Therefore the garnishee. Superior Pa. collaterally. Hebenstreit, Shaffer Ct. 180 A. (1935). Consequently attack representative nishee’s has standing Bianco Pullo in suit by judgment against as Renschler v. Such cases Pizano, in the suit Pa. 249, holding be attacked may claims to cases as of fraud are confined such ground not where the indemnity, , fraudulent. attacked as which being attack garnishee’s the case here. The This is not hav- rendered suit in it was in the *7 up- it as binding are bound to recognize we ing failed, on him here. before us is whether remaining issue

The only in favor of the reduced should be Pullo against of the judgment below with the I am in agreement garnishee. reduced. should be so of the judgment the amount in this case that the judgment I concur purpose. opened for nishee should opinion. joins J., Wright, Unemployment Compensation Hegley Case.