Appeal from order of Court of Common Pleas of Westmoreland County, Oct. T., 1966, No. 200, in case of Betty Schacter, administratrix of estate of Lawrence Schacter, deceased, v. Herman Albert.
Saul Davis, for appellant.
Bernard S. Shire, with him Ezerski & Shire, for appellee.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Spaulding, J.
[ 212 Pa. Super. Page 60]
This is an appeal from a summary judgment granted under Rule 1035 of the Pennsylvania Rules of Civil Procedure to defendant-appellee by the Court of Common Pleas of Westmoreland County.
On November 1, 1961 Lawrence Schacter,*fn1 trading as Lawrence Jewelers, entered into a five year lease agreement with Prise Realty Company, lessor, for certain premises in Charleroi, Pennsylvania to be used as a jewelry store by lessee Schacter. Among other things the lease contained a five year renewal clause and a provision which specifically precluded lessee from subleasing the premises or assigning the lease without the express consent of the lessor.*fn2 For several years Schacter operated the jewelry business on these premises.
On January 15, 1966 plaintiff-appellant, the administratrix of Schacter's estate, entered into a handwritten agreement with defendant-appellee for the sale to appellee of all of the assets of Lawrence Jewelers. The sale price was $21,000, the agreement providing for a down payment of $2000 which was to be forfeited as liquidated damages unless the balance of the purchase price was paid by appellee within five days.
Appellee failed to consummate the transaction within the stipulated period, and, in addition, stopped payment
[ 212 Pa. Super. Page 61]
on the $2000 check which previously had been given to appellant, who thereupon instituted an action in assumpsit to recover the $2000 liquidated damages as provided in the agreement.
Appellee filed an answer contending that the lease with Prise Realty Company prevented appellant from delivering possession of the jewelry store premises and that appellant's inability to deliver such possession excused appellee's nonperformance. Appellee further averred that it was the intent of the parties that appellant would assign to appellee the existing lease for the premises at the time of closing, and that appellee had relied on this understanding. Appellee alleges that the stop payment order was issued immediately upon learning of the lease restrictions prohibiting subleasing and assignment without consent of the lessor.
The consent not having been obtained, appellee moved for a summary judgment on the pleadings pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure which provide that summary judgment is to be granted if the pleadings "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ...