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ONORATO v. WISSAHICKON PARK (07/01/68)

decided: July 1, 1968.

ONORATO, APPELLANT,
v.
WISSAHICKON PARK, INC.



Appeal from decree of Court of Common Pleas of Montgomery County, No. 65-2424, in case of Salvatore Onorato, Michael Onorato and Anna T. Onorato Rothman v. Wissahickon Park, Incorporated and Kenneth Grosse, Incorporated.

COUNSEL

Harry N. Moran, Jr., for appellant.

Stanford S. Hunn, with him Pearlstine, Salkin, Hardiman, Robinson & Hunn, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Eagen dissent and would affirm the decree of the court below.

Author: O'brien

[ 430 Pa. Page 418]

This is an action in equity commenced on March 2, 1965 to obtain the cancellation of a deed, and a reconveyance, of certain premises in the Borough of Lansdale, Montgomery County, Pennsylvania, plus money damages. The alleged basis of the action is that the named defendants as agents of the plaintiffs fraudulently and in breach of their fiduciary duty procured the sale of the said premises at an inadequate price, and that the agents profited from such acts.

It is undisputed that appellant, Salvatore Onorato, along with the other two named plaintiffs, his brother Michael Onorato and his sister Anna T. Onorato Rothman, were on July 28, 1962, the owners as tenants in common of the land in question. On that date they executed an exclusive multiple listing sales contract with Kenneth Grosse, Incorporated, brokers. The land was then zoned A-1 residential, and the listing price was set at $125,000. One offer of $80,000 was received and refused. Then an offer from Walker-Murray Associates for $100,000 was accepted, contingent upon a zoning change from A-1 residential to apartment use.

Walker-Murray Associates requested Kenneth Grosse, Jr., to act as nominal developer and to procure the requested zoning change. An agreement of sale was drawn with a straw party, one Robert Nuss, named as buyer so that Walker-Murray Associates need not be identified with the zoning change due to their diverse dealings with municipal planning commissions and zoning boards. On September 18, 1962, the agreement between plaintiffs and Nuss, contingent upon the zoning change, was executed. The agreement called for settlement on or before December 17, 1962, with time of the essence, but provided for a 90-day extension if the zoning change were not obtained before the original settlement date, with settlement in no event to occur

[ 430 Pa. Page 419]

    beyond 60 days after written approval of the zoning change. Two extensions were agreed upon, the latter expiring May 17, 1963.

During the months following the signing of the agreement, Kenneth Grosse, Jr. took various actions indicating that he was the developer. He was so listed on a brochure printed by Walker-Murray Associates for submission to the Lansdale Borough Council in support of the petition for the zoning change, as well as on a scale model of the plan. He was so described in the North Penn Reporter, a daily paper. In testimony before the council, he referred to himself as equitable owner.

Kenneth Grosse, Jr. was also involved in negotiations in which the buyers of the entire tract agreed to deed back fifty feet of front land to Salvatore Onorato in return for fifty feet of back land. Grosse told Onorato he had authority to deed the fifty feet of front land to Onorato because, as he put it, "I was one-third."

The requested zoning change was granted in April, 1963. Wissahickon Park, Inc., the purchaser at settlement, was incorporated in Pennsylvania on May 23, 1963. Pursuant to the oral agreement between Kenneth Grosse, Jr. and Walker-Murray Associates, Grosse, in return for his services in procuring the ...


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