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FRAZIER v. UDELSON. (06/15/61)

June 15, 1961

FRAZIER, APPELLANT
v.
UDELSON.



Appeal, No. 15, Oct. T., 1961, from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1959, No. 3470, in case of Charles Frazier v. Pearl Udelson et al. Judgment vacated and case remanded.

COUNSEL

William Brodsky, for appellant.

Saul Doner, with him Doner and Schaeffer, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, and Montgomery, JJ. (flood, J., absent).

[ 195 Pa. Super. Page 391]

OPINION PER CURIAM

The appeal in this case was taken from an order of the Common Pleas Court granting defendants' motion for judgment on the pleadings without prejudice to plaintiff's right to file an amended complaint in the Municipal Court of the County of Philadelphia.

The action originated in equity. The plaintiff alleged inter alia that on December 29, 1955, he and his wife, now deceased, entered into a written agreement for the lease and sale of premises 1444 North 58th Street, Philadelphia, Pa., from Dora Ruskin. The attached agreement stated that the vendee was to receive title to the premises upon payment of $2,550. of the total sales price of $8,500.00. It was further alleged that he paid $600. at the signing of the agreement and thereafter paid to defendant Dora Ruskin or her daughter, Pearl Udelson, $85. a month up to February, 1959, and $45. during that month. Plaintiff further alleged that he vacated the premises on April 12, 1959, shortly following the death of his wife and made no further payments. He averred a conveyance of the premises by defendant Dora Ruskin to her son and his wife, defendants Samuel and Shirley Ruskin, on October 15, 1956. An agreement of sale was entered into thereafter with a purchaser who was occupying the premises at the time the original complaint was filed. Plaintiff requested information regarding the terms of the sale last mentioned and the relationship of the various defendants to the property, the rent and money paid on account of the purchase price, and sought to have the court restrain the sale or completion of the settlement with the new purchaser and general relief, naming

[ 195 Pa. Super. Page 392]

    as defendants not only the three Ruskins and Pearl Udelson, but also the purchaser from Samuel and Shirley and the agent who negotiated the sale.

Upon consideration of preliminary objections the court below indicated that the plaintiff had breached his contract and was entitled, at most, to recover part of the money paid by him to certain of the defendants and that this right would exist only if additional facts were pleaded and proved showing that the plaintiff paid more than the fair rental value of the property during his occupancy. The court also stated that plaintiff's rights, if any, against Udelson and the Ruskins, could be maintained only in an action at law for restitution. The court further held that no cause of action existed against the other defendants named in the bill and there was no appeal from that determination. The court sustained preliminary objections as to all defendants, transferred the matter to the law side of the court, and granted plaintiff leave to amend his complaint as to Pearl Udelson and the three Ruskins.

Subsequently an amended complaint in assumpsit was filed against the four parties defendant remaining in the action. Preliminary objections, essentially in the nature of a demurrer, were overruled, the court citing the case of Terminal Realty Corporation v. Doubler, 88 Pa.D. & C. 213 (1953). This indicates that the issue on the preliminary objections was whether or not the plaintiff, a defaulting vendee, could recover money retained by the vendor upon the ground that the provision in the contract for its retention provided for a penalty as opposed to liquidated damages. In a well considered opinion, after careful review of opposing authorities, the court in the Terminal Realty case decided that under the facts, defendant's claim that the amount received was not in excess of proper liquidated damages was not clearly valid under the facts pleaded and insufficient to warrant judgment on the pleadings

[ 195 Pa. Super. Page 393]

    in his favor. The court below in the instant matter held, following the opinion in the Terminal Realty case, supra, that the question as to liquidated damages or penalty could ...


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