Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1963, No. 3538, in case of Robert H. Kusche v. Vulcanized Rubber & Plastics Company, Inc.
Melvin Lashner, with him Adelman & Lavine, for appellant.
David H. H. Felix, with him Felix & Felix, and Curtin & Heefner, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this dissenting opinion.
This is an appeal from a judgment entered on the pleadings in an action of assumpsit.
The pertinent portions of the pleadings are as follows:
The complaint alleges that the plaintiff, with many years experience in banking and negotiating loans, entered into a contract with the corporate-defendant "to negotiate a mortgage loan of $500,000 on behalf of the defendant at a fee of 3%, payable to the plaintiff by the defendant;" that the plaintiff successfully secured
a commitment for such a loan from a Philadelphia bank, which was submitted to the board of directors of the defendant-corporation; that the defendant, contrary to its agreement with the plaintiff, used this commitment as an aid to obtain a loan with similar conditions from another banking institution, and then reneged on its promise to pay the plaintiff the 3% commission agreed upon.
The answer denied material allegations in the complaint, and, as an additional defense, averred under new matter, that plaintiff was barred from recovery of any compensation by the Real Estate Brokers License Act of May 1, 1929, P. L. 1216, as amended, 63 P.S. § 431 et seq., in that during the time involved he was not licensed as a real estate broker or salesman, and did not come within the exceptions for which no license was required.
In the reply to the new matter, plaintiff admitted that he did not qualify under the Act of 1929, supra, but averred that his right to compensation was not barred "because the loan itself was not to be secured by real estate within the meaning of the Act of Assembly."
The statute involved specifically prohibits any individual, association or corporation from acting "in the capacity of a real estate broker, or a real estate salesman," in the Commonwealth of Pennsylvania unless properly licensed by the State Real Estate Commission (P. L. 1216, § 12, 63 P.S. § 442). It further specifically bars any individual, association or corporation from instituting suit for recovery " for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act to others than licensed real estate brokers, unless such person . . . ...