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PORTNOY v. BROWN (07/01/68)

decided: July 1, 1968.

PORTNOY, APPELLANT,
v.
BROWN



Appeal from decree of Court of Common Pleas of Montgomery County, No. 66-10926, in case of Samuel Portnoy and Albert Freedman v. Charles A. Brown and Mary J. Brown, his wife.

COUNSEL

Marvin J. Levin, with him Harry M. Sablosky, and Freedman, Borowsky and Lorry, for appellants.

Gerald F. Glackin, with him Brunner, Conver and Glackin, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Eagen concurs in the result. Mr. Justice O'Brien dissents.

Author: Cohen

[ 430 Pa. Page 402]

This is an appeal from the dismissal of appellants' complaint in equity seeking specific performance of an agreement for the sale of real estate.

The complaint alleged that on July 25, 1956, appellants and appellee, Charles A. Brown, executed a lease for certain real estate owned by appellees which lease provided in pertinent part as follows: "Charles A. Brown (hereinafter called the lessor), doth hereby let

[ 430 Pa. Page 403]

    unto Samuel Portnoy & Albert Freedman (hereinafter called the lessee); All That Certain General Store and Gasoline Service Station & Auto Accessories located at Welsh Rd. & Limekiln Pike (Route 63 & 152) Horsham Twshp. Montg. Co. having 125' frontage and 150' depth with privilege of using additional grounds for the general use of the business and the parking of customer's cars. . . . Lessor hereby grants to Lessee an option to purchase the demised premises at the current market value at the end of the final term, if the above option is exercised." (Emphasis supplied).

Appellee filed preliminary objections to the complaint alleging that the agreement was not susceptible to specific performance for the following reasons: (1) the agreement is ambiguous in that it does not adequately identify or describe the extent of the real property to be conveyed; (2) it fails to specify the purchase price or any method by which such purchase price is to be determined, and (3) the agreement does not meet the requirements under the Statute of Frauds since the signature of appellee, Mary J. Brown, does not appear therein.

The court below sustained appellees' preliminary objections without discussing the defense of the Statute of Frauds, and certified the case to the law side of the court, giving appellants the opportunity to file an amended complaint seeking damages. Appellants refused to amend their complaint and the court below dismissed the complaint. This appeal followed.

It is well settled that a decree of specific performance will not be granted unless the plaintiff is clearly entitled thereto and no adequate remedy at law exists. Roth v. Hartl, 365 Pa. 428, 75 A.2d 583 (1950); Merritz v. Circelli, 361 Pa. 239, 64 A.2d 796 (1949). Furthermore, it is an essential requirement that the agreement for the sale of ...


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