Appeal, No. 245, Jan. T., 1963, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1962, No. 5160, in case of Elizabeth Weizer, administratrix of estate of Paul Weizer, and Elizabeth Weizer in her own right v. J. E. Weyman Construction Corp. Judgment affirmed; reargument refused February 10, 1964.
Morton B. Wapner, for appellant.
Samuel Moonblatt, with him Berk, Masino and Moonblatt, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
This case also points up the problem which we raised in Conley-Irwin Corp. v. Reiter, 413 Pa. 213, 196 A.2d 300 (1964). Here, appellees brought this action in equity to recover payments made to appellant under a real estate purchase agreement alleging failure of appellant to comply with the agreement. After the pleadings had been filed plaintiff-appellees moved, under Rule 1034 of Pa. R.C.P. applicable to actions of assumpsit, for judgment on the pleadings which the lower court granted and from which judgment appellant takes this appeal.
During argument and in the appellees' history of the case it was indicated that plaintiff-appellees permitted defendant-appellant to sell the property to another buyer. Appellant no longer owns the property. We gather from statements of counsel that the arrangements made by appellees and appellant in the disposition of the property have eliminated substantial contentions from this litigation.
Under those circumstances, we have not made the issue of equity's apparent lack of jurisdiction the basis for our decision. Without recourse to procedural defects we affirm the action of the lower court on the merits. As in Conley-Irwin Corp. v. Reiter, we again caution that this litigation should not be considered as a precedent for recourse to equity under facts such as these.
Mr. Justice ROBERTS concurs in the result.