Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1962, No. 4023, in case of Anna Blumer v. Martin Dorfman.
Joyce Ullman, for appellant.
Samuel C. Nissenbaum, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J. Hoffman, J., joins in this dissenting opinion.
[ 216 Pa. Super. Page 357]
Dissenting Opinion by Montgomery, J.:
This is an appeal by Anna Blumer, plaintiff-appellant, from the order of the Court of Common Pleas No. 2, Philadelphia County, which granted the motion for judgment on the pleadings by Martin Dorfman, the defendant-appellee. In this action in assumpsit appellant attempted to collect from appellee damages totaling $5,925.84, which appellant alleged that she incurred in connection with the lease or occupancy of appellant's
[ 216 Pa. Super. Page 358]
real property at 1900 North 32nd Street in Philadelphia, Pennsylvania.
Although appellee is a real estate broker, who apparently was in the business of obtaining tenants for the appellant's property, appellant alleged in her complaint that appellee personally was responsible for (1) the monthly rental of $250 for December, 1968, and January, February, and March of 1969, or a total of $1,000, when a tenant obtained by appellee defaulted in payment of that rent; (2) a repair bill of $150, and an excess water bill of $1,925.84; and (3) rent of $250 per month from March, 1961, through January, 1962, the latter period of which appellee allegedly occupied the premises. The lower court decided in favor of the defendant-appellee on the pleadings on the basis that the alleged claim for damages came within the provisions of the Statute of Frauds, Act of April 26, 1855, P. L. 308, § 1, 33 P.S. § 3, which states, "No action shall be brought whereby to charge any executor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized." and under the Act of April 6, 1951, P. L. 69, art. II, § 202, 68 P.S. § 250.202, which states, "Real property . . . may be leased for a term of more than three years by a landlord to a tenant or by their ...