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PALONE v. MOSCHETTA. (12/29/56)

December 29, 1956

PALONE, APPELLANT,
v.
MOSCHETTA.



Appeal, No. 196, March T., 1956, from decree of Court of Common Pleas of Washington County, No. 5306, in equity, in case of Marion Palone v. John J. Moschetta et ux. Decree affirmed.

COUNSEL

John I. Hook, Jr., and George B. Stegenga, for appellant.

Adolph L. Zeman, with him Robert L. Zeman, Carl E. Gibson, Richard DiSalle, and Zeman & Zeman, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 387 Pa. Page 387]

OPINION BY MR. JUSTICE BELL

Plaintiff brought a complaint in equity against defendants for an accounting and payment of one-half of

[ 387 Pa. Page 388]

    the rents and profits resulting from the purchase, developing, leasing and sale by John J. Moschetta of certain dwelling lots in the Village of Crucible, Pa. Plaintiff filed a prolix complaint of 94 paragraphs in which he sought (a) to vary by parol evidence the terms of a written agreement made between him and John J. Moschetta, and (b) to avoid and nullify a release given by him to Moschetta which covered particularly the properties in suit and all claims arising therefrom. Moreover, plaintiff filed his complaint more than 7 years after he had given moschetta the above mentioned release. Defendants filed preliminary objections in the nature of a demurrer to plaintiff's complaint. The lower Court sustained the preliminary objections, dismissed the complaint and entered judgment for the defendants.

Plaintiff averred that Moschetta had orally agreed on December 4, 1946, prior to their subsequent written agreement of December 7, 1946, to pay plaintiff one-half of the rents and profits. Plaintiff also alleged that when he executed the release on July 6, 1948 (which will be hereinafter more specifically referred to), he was partly induced to do so by Moschetta's statement that new homes would be erected by Moschetta on various lots which he (Moschetta) owned in that part of the adjacent ground known as the "Second Addition", and that streets would be laid out and improved, and water, gas and electricity made available, and that plaintiff would realize from the sale of the 45 lots which Moschetta conveyed to him larger profits than if he waited until all the properties in the development were sold.

Plaintiff and John J. Moschetta on December 7, 1946, entered into an ineptly written agreement, the material provisions of which are as follows:

"The party of the first part, John J. Moschetta, agrees that in consideration of ...


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