Scheiner v. Redevelopment Authority , 77 Pa. Commw. 181 ( 1983 )

Opinion by

Judge Williams, Jr.,

Sayre Scheiner and Edith Scheiner, his wife, together with Schemer’s Scrap Yard, Inc., have jointly appealed from an order of the Court of Common Pleas of Allegheny County denying their petition to strike or open a judgment in an eminent domain ease.

Until 1975, Sayre and Edith Scheiner owned certain land in the City of McKeesport, Allegheny County. They leased their property to Schemer’s Scrap Yard, Inc., for the conduct of its business. In March of 1975, the lessors and the lessee joined in a petition for the appointment of viewers to assess condemnation damages against the Redevelopment Authority of the City of McKeesport (Authority). In addition to claiming damages for the lessors’ land and for machinery and equipment of the lessee, the condemnees also asserted that the Authority’s taking would completely dislocate the business of the lessee, Schemer’s Scrap Yard, Inc.¹

On April 13, 1977, the board of viewers entered an award granting $16,000 to Sayre and Edith Scheiner as realty damages. Against this sum the Authority was given a credit of $38,000, which had been paid as estimated just compensation. The award also granted Mr. and Mrs. Scheiner $500 as .an attorney fee, and provided that delay compensation would be calculated from August 21, 1975. As further damages, the viewers awarded $15,692 for the machinery and equipment. The award stated, however, that “nothing” was being allowed for business dislocation damages, because Scheiner’.s Scrap Yard, Inc., was still in possession of the premises.² The viewers’ award was appealed by the condemnees to the Court, of Common Pleas of Allegheny County; the Authority also took an appeal.

While the matter was pending before the Court of Common Pleas, the parties entered into negotiations. As a result of those negotiations a consent order was prepared, and was subsequently signed by counsel for the parties and by the court. The consent order, which was dated November 15,1979, provided as follows:

AND NOW, to wit, this 15th day of November, 1979, it is hereby Ordered, Adjudged and Decred [sic] that judgment be entered in favor of Plaintiff-Condemnee in the total .sum of $70,000.00. .Said .sum to include all claims of Plaintiff-Condemnee including real estate, machinery and equipment, business dislocation, attorney and appraisal fees, delay compensation and interest. The Defendant is to be given credit for an estimate of just compensation payment in the amount of $38,000.00, leaving a balance due the Plaintiff--tGondemnee of $32,000.00. (Emphasis added.)

The condemnees do not dispute that the consent order was signed on behalf of Mr. and Mrs. Scheiner, and on behalf of Scheiner’is Scrap Yard, Inc. About two months after the consent order was signed by the parties and the court, the condemnees accepted payment of the sum mandated by the order; and the case was marked satisfied. Shortly thereafter, the condemnees filed a petition to strike the judgment that had resulted from the consent order.

In the petition collaterally attacking the judgment, the condemnees alleged that the underlying consent order was signed by their counsel while he harbored a mistaken belief: that business dislocation damages, with respect to Schemer’s Scrap Yard, Inc., had been previously paid. In other words, according to the condemnees, they never intended that the sum stated in the consent order would also settle the business dislocation claim. However, in their petition for collateral relief, the condemnees did not assert that the alleged mistake of their counsel resulted from a misrepresentation by any other person or agency. In that regard, the condemnees’ sole allegation was that the Authority never informed the condemnees’ counsel that there had not been any payment relative to business dislocation damages.

The Authority responded with an answer that put in issue the principal allegations of the petition. The trial court treated the condemnees’ petition as one to strike or open the judgment, and proceeded to receive evidence in the form of depositions. Thereafter, the trial court issued an order denying relief. We conclude that the trial court’s order was correct.

It is well settled that a judgment cannot be stricken on the basis of allegations, such as those in the instant case, that go beyond the face of the record. E.g., In Re Estate of McCauley, 478 Pa. 83, 385 A.2d 1324 (1978); Wilson v. Vincent, 300 Pa. 321, 150 A. 642 (1930). Even with their petition being treated as one to open the judgment, the condemnees did not sufficiently allege or show a basis for that relief. It must be remembered that tbe judgment bere in question resulted from tbe consent of tbe litigants as to its terms. Thus, tbe judgment was a consent judgment. In tbe absence of fraud or mutual mistake, a collateral attack upon a consent judgment is improper. International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., 456 Pa. 436, 318 A.2d 918 (1974); Baran v. Baran, 166 Pa. Superior Ct. 532, 72 A.2d 623 (1950). In tbe instant case, the condemnees ’ petition for relief did not even come close to alleging fraud; nor was any fraud ishown. The mistake alleged by tbe condemnees, and tbe evidence in that regard, could only indicate a unilateral mistake on tbe part of the condemnees.

Accordingly, we affirm tbe order of tbe trial court.

Order

And Now, tbe 16th day of September, 1983, tbe order of tbe Court of Common Pleas of Allegheny County at No. G-D75-5086 denying tbe petition to strike or open tbe judgment is affirmed.

1 We use the plural word “condemnees” because in (the proceedings below, and in .this appeal, Mr. and Mrs. Scheiner and Schemer’s Scrap Yard, Inc., are named as co-parties.

2 It appears that after the condemnation, Schemer’s Scrap Yard, Inc., entered into a lease arrangement with the Authority.