Matter of Holmes, Bankruptcy No. 81-00007

• Citation: 53 BR 268
• Decision Date: 31 August 1985
• Docket Number: 81-00105,Adv. No. 81-0353.,Bankruptcy No. 81-00007
• Parties: In the Matter of James T. HOLMES d/b/a the Holmes Company and Bertha June Holmes, his wife, Debtors. Bernard D. JULIANO, Plaintiff, v. James T. HOLMES d/b/a the Holmes Company, Defendant.
• Court: United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Western District of Pennsylvania

53 B.R. 268 (1985)

In the Matter of James T. HOLMES d/b/a the Holmes Company and Bertha June Holmes, his wife, Debtors.

Bernard D. JULIANO, Plaintiff, v. James T. HOLMES d/b/a the Holmes Company, Defendant.

Bankruptcy Nos. 81-00007, 81-00105, Adv. No. 81-0353.

United States Bankruptcy Court, W.D. Pennsylvania.

August 31, 1985.

Thomas P. Agresti and Agresti and Agresti, Erie, Pa., for plaintiff.

Floyd Leon Arbogast, Jr., Pittsburgh, Pa. and Richard T. Ruth and Joseph T. May, Erie, Pa., for debtor/defendant.

R. Perrin Baker, Erie, Pa., trustee.

Kenneth D. Chestek, Erie, Pa., for petitioning creditors.

MEMORANDUM AND ORDER

WM. B. WASHABAUGH, Jr., Bankruptcy Judge.

The plaintiff, Bernard D. Juliano, is a creditor of the bankrupt with a judgment for $14,476.49 in the Court of Common Pleas of Erie County, Pennsylvania as a result of an injury he sustained in the course of his employment by the debtor and based on a Workmen's Compensation award he obtained against the debtor as a result of said injury.

The plaintiff was employed by the debtor as an automobile mechanic and sustained multiple fractures to his left wrist and elbow while mounting a truck in the performance of the duties of his employment. The wife-debtor was not alleged to be connected with the business or to have any responsibility for the occurrences on which the plaintiff's action is based, but the husband-debtor, who owned and operated the business is shown to have volunteered to settle the plaintiff's claim for him and told the plaintiff to say he was a business invitee to the premises of the debtor at the time he sustained his injury, rather than an employee. The debtor is alleged to have advised the foregoing position because he did not carry Workmen's Compensation Insurance as required by state law and hoped to obtain a settlement from his property and business insurance carrier for the said damages. The plaintiff obtained an offer from the American Insurance Company in the sum of $3,500.00 after which he retained Joseph V. Agresti, Esq., a highly respected member of the Erie County Bar Association and former President thereof to represent him in the matter who re-negotiated the settlement offer without knowledge of the false representations on which it was based and was successful in having it increased to $9,500.00.

The day before a scheduled conference for payment of the claim, the plaintiff admitted to his attorneys, Agresti and Agresti, Esqs., that he was an employee in the debtor's garage and sustained the injuries and medical expenses complained of in the course of his employment, and not as a business invitee to the debtor's garage as he had previously been induced to represent on the fraudulent advice of the debtor who was motivated by a desire to escape both criminal prosecution and personal liability as a result of the accident. The attorneys ethically and commendably told the debtor they could not have the settlement consummated by the American Insurance Company without first explaining the true facts of the situation to them, subsequent to which the insurance company declined to make any payment on the claim and the attorneys filed the Workmen's Compensation claim on...