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SAVITZ v. WEINSTEIN. (03/20/59)

March 20, 1959

SAVITZ, APPELLANT,
v.
WEINSTEIN.



Appeal, No. 388, Jan. T., 1958, from order of Court of Common Pleas No. 3 of Philadelphia County, March T., 1957, No. 5683, in case of Phil Savitz v. Morton B. Weinstein. Judgment reversed.

COUNSEL

Harry Norman Ball, with him Joseph G. Feldman, for appellant.

Laurence H. Eldredge, with him Morris Chernock, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Bell

[ 395 Pa. Page 174]

OPINION BY MR. JUSTICE BELL

Plaintiff is attempting to recover on an amended complaint in trespass - alleging deceit by defendant who is an attorney at law. The lower Court sustained defendant's preliminary objections in the nature of a demurrer, and plaintiff's amended complaint was dismissed.

In Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491, the Court said (page 94): "Defendants by their 'preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders' conclusions or averments of law': Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895. Moreover, when the sustaining of defendants' preliminary objections will result in a denial of plaintiffs' claim, or a dismissal of plaintiffs' suit, preliminary objections should be sustained only in cases which are clear and free from doubt: London v. Kingsley, 368 Pa. 109, 81 A.2d 870; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776."

It is necessary, therefore, to review and analyze plaintiff's averments of fact to determine whether they allege a valid cause of action.

Gallaccio and Reale were engaged in the construction business under the name of Western Construction Company. They were low bidders on a contract for the construction of a sewer at Castor Avenue. Plaintiff averred that he and Gallaccio and Reale entered

[ 395 Pa. Page 175]

    into a written agreement, under the terms of which plaintiff was employed as General Superintendent of the construction of the Castor Avenue sewer, in consideration of which plaintiff became entitled, inter alia, to receive a bonus of $14,000. Plaintiff also averred that he had invested $14,000 with the Western Construction Company for the purpose of this sewer job. Defendant was attorney for Gallaccio and Reale, and the agreement between them and plaintiff was prepared by defendant.

Plaintiff further averred: "In the ... preparation of the contract ... defendant acted as attorney for Fred Gallaccio and Frank Reale and upon being advised that plaintiff was not represented by any counsel, agreed to act as attorney for the plaintiff and in the preparation thereof to protect the plaintiff in connection with the matter. Thereafter, defendant advised plaintiff that he had prepared the agreement for the protection of the plaintiff, counseled him with regard to the terms and effect of the agreement, acted as his intermediary in connection with the transfer of the monies referred to in the agreement; prepared a certification to be signed by plaintiff, which was delivered to a bonding company which guaranteed performance of the work referred to and advised plaintiff to sign the same for delivery to the bonding company and assured him that ...


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