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Com. of Pennsylvania v. Rozman

Commonwealth Court of Pennsylvania
Aug 29, 1973
309 A.2d 197 (Pa. Cmmw. Ct. 1973)

Summary

In Rozman, the Rozmans entered into a consent decree with the Commonwealth for an injunction to prevent unfair trade practices.

Summary of this case from Deny St. Pub, Inc. v. Pa. State Police

Opinion

Argued June 6, 1973

August 29, 1973.

Equity — Unfair Trade Practices and Consumer Protection Law, Act 1968, December 17, P. L. 1224 — Injunction — Power of Commonwealth Court of Pennsylvania — Stipulation — Consent decree — Repudiation of agreement — Advice of counsel — Complaint — Time of filing consent petition — Authority of attorney — Fraud — Accident — Mistake — Hearing.

1. The Commonwealth Court of Pennsylvania is empowered by provisions of the Unfair Trade Practices and Consumer Protection Law, Act 1968, December 17, P. L. 1224, to enjoin and prevent violations of the Act. [135-6]

2. An injunctive order and decree, approved in good faith by a court on the stipulation, consent and agreement of the parties, cannot be avoided by one such party on the grounds that such decree was void and illegal and outside the power of the court. [136]

3. Parties to an agreement cannot repudiate such agreement entered into with full knowledge, upon advice of counsel and presumably for their own benefit. [136]

4. An action under the Unfair Trade Practices and Consumer Protection Law, Act 1968, December 17, P. L. 1224, cannot be commenced by the filing of a consent petition providing for the issuance of an injunction, but such a petition, whenever executed, may be filed subsequent to the filing of a proper complaint in equity. [136]

5. A consent decree is not a legal determination by the court but is in the nature of a contract binding on the parties thereto. [137]

6. It is within the authority of an attorney operating with his client's direction, knowledge or consent to execute a consent decree, and the court will not modify or vary the terms of such decree absent fraud, accident or mistake. [137]

7. A consent decree has the same force and effect as a final decree although entered without a hearing or presentation of evidence in support of the complaint. [137]

Argued June 6, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.

Original jurisdiction No. 773 C.D. 1972, in case of Commonwealth of Pennsylvania, Acting by the Attorney General J. Shane Creamer v. Lewis Rozman, Individually and Trading as Rozman Brothers Furniture Appliance Center, 1711 South Cameron Street, Harrisburg, Pennsylvania, and William Rozman, Individually and Trading as Rozman Brothers Furniture Appliance Center, 1711 South Cameron Street, Harrisburg, Pennsylvania. Complaint in equity in the Commonwealth Court of Pennsylvania to enjoin alleged unfair trade practices. Consent decree entered. Defendants filed petition to dissolve injunction and vacate decree. Held: Petition dismissed.

Richard L. Kearns, with him Caldwell, Clouser Kearns, for defendants. Lawrence R. Richard, Assistant Attorney General, with him Jeffrey A. Ernico, Deputy Attorney General, and Israel Packel, Attorney General, for plaintiff.


On August 8, 1972, the Attorney General of the Commonwealth filed a complaint in equity containing allegations that Lewis Rozman and William Rozman, as individuals, and trading as Rozman Brothers Furniture and Appliance Center (Rozmans), were "using or about to use practices declared illegal by Section 3" of the Unfair Trade Practices and Consumer Protection Law (Act). Immediately after filing the complaint, the Attorney General filed a "consent petition for permanent injunction," dated August 7, 1972 and executed by the Attorney General for the Commonwealth of Pennsylvania and Louis M. Rozman and by counsel for the Rozmans. This petition, in accordance with its terms, became the basis of a consent decree entered on August 8, 1972.

Act of December 17, 1968, P. L. 1224, 73 P. S. § 201-3.

On March 1, 1973, Rozmans filed a petition to dissolve the permanent injunction and vacate the consent decree. We here dismiss this petition.

The complaint was filed to terminate and prevent unfair trade practices. This Court has, under Section 4 of the Act, jurisdiction of a complaint in equity to enjoin and prevent such violations of the Act. The parties, for reasons of their own, agreed upon the character of injunction to issue to abate the unfair practices set forth in the complaint. Likewise, they agreed upon a procedure whereby the Attorney General, under certain circumstances, should have the "right to require cancellation of any contract secured or solicited by Defendants, their agents or representatives, since June 16, 1971." The parties may or may not have agreed upon such a decree as the Court would have entered under the Act. It may be that the decree is broader than and of a character different from that which the Court would have entered, but Rozmans cannot now be heard to complain of the very order to which they agreed for purposes of their own nor can they assert lack of jurisdiction to enter the decree. See Cooper-Bessemer Company v. Ambrosia Coal and Construction Company, 447 Pa. 521, 291 A.2d 99 (1972).

73 P. S. § 201-4.

It would be an untenable situation if Rozmans could agree to the kind of injunction and decree which was acceptable to them and if then, on the basis of such agreement, after no further proceedings were taken and the decree was entered as agreed upon, they could violate the decree and, when an attempt was made to hold them accountable for so doing, could reply that the decree was void and illegal and that the Court had no power to enter such a decree. We cannot accept such reasoning. Court decrees, approved in good faith by a court on the stipulation and consent of the parties, cannot be avoided by some of the parties on the contention that the court had no power to make the decree. See Commonwealth v. Trace, 65 Pa. D. C. 215 (1948).

Parties to an agreement cannot be allowed to repudiate that which they did with full knowledge, advice of counsel, and presumably for their own benefit.

Rozmans correctly contend that an action under the Act may not be commenced by a consent petition providing for a permanent injunction. Hartmann v. Peterson, 438 Pa. 291, 265 A.2d 127 (1970). Here, however, the record establishes that this action was properly commenced by the filing of a complaint in equity. The fact that the consent petition was dated one day prior to the filing of the complaint is of no import where the consent petition was filed subsequent to the complaint.

A consent decree is not a legal determination by the court of the matters in controversy but is merely an agreement between the parties. It is in essence a contract binding the parties thereto. Universal Builders Supply, Inc. v. Shaler Highlands Corporation, 405 Pa. 259, 175 A.2d 58 (1961). As a contract, such a decree requires a mutual understanding of and concerted action by the parties. Here the consent petition was signed for the Rozmans by Louis M. Rozman and William K. Wright, "Counsel for Rozmans." There is nothing before us to even suggest that Attorney Wright did not have authority to execute the consent petition on behalf of William Rozman and Rozman Brothers Furniture and Appliance Center or that the Rozmans did not have an understanding of the consent decree to be entered in consequence of the consent petition. An attorney has authority to enter a consent decree with the client's direction, knowledge or consent. Archbishop v. Karlak, 450 Pa. 535, 299 A.2d 294 (1973). A court has neither the power nor the authority to modify or vary the terms set forth in a consent decree, under such circumstances, in the absence of fraud, accident or mistake. Rozmans make no such assertions here. See Jones Memorial Baptist Church v. Brackeen, 416 Pa. 599, 207 A.2d 861 (1965).

It is not of importance that the consent decree was entered without a hearing and the presentation of evidence to support the allegations of the complaint. If, without taking testimony, the parties chose to settle the litigation by a consent decree, the chancellor was not required to file an adjudication in the traditional form. The consent decree derives its efficacy from the agreement of the parties and the approval of the chancellor. It bound the parties with the same force and effect as if a final decree had been rendered after a full hearing upon the merits.

We hold that a decree entered by understanding consent of the parties is so conclusive that it will be vacated only on a showing that an objecting party's consent was obtained by fraud or that it was based on accident or a mutual mistake. Rozmans have not established such to be the case here. Accordingly, their petition to dissolve is hereby dismissed.


Summaries of

Com. of Pennsylvania v. Rozman

Commonwealth Court of Pennsylvania
Aug 29, 1973
309 A.2d 197 (Pa. Cmmw. Ct. 1973)

In Rozman, the Rozmans entered into a consent decree with the Commonwealth for an injunction to prevent unfair trade practices.

Summary of this case from Deny St. Pub, Inc. v. Pa. State Police

In Rozman, this Court held that a consent decree is an agreement binding upon the parties thereto who cannot be allowed to repudiate that to which they agreed for purposes of their own and for their own benefit.

Summary of this case from Dravosburg Housing Ass'n v. Borough of Dravosburg
Case details for

Com. of Pennsylvania v. Rozman

Case Details

Full title:Commonwealth of Pennsylvania Acting by Attorney General J. Shane Creamer…

Court:Commonwealth Court of Pennsylvania

Date published: Aug 29, 1973

Citations

309 A.2d 197 (Pa. Cmmw. Ct. 1973)
309 A.2d 197

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