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WILLIAM I. MIRKIL CO. v. GAYLON (12/20/71)

decided: December 20, 1971.

WILLIAM I. MIRKIL CO., APPELLANT,
v.
GAYLON



Appeal from order of Superior Court, Oct. T., 1969, No. 807, affirming order of Court of Common Pleas of Montgomery County, No. 63-10511 of 1963, in case of William I. Mirkil Co. v. Robert Gaylon and Ann Gaylon, his wife.

COUNSEL

Edward H. Fackenthal, with him Franklin H. Spitzer, Henderson, Wetherill, O'Hey & Horsey, and Wolf, Block, Schorr & Solis-Cohen, for appellant.

Roger B. Reynolds, with him Roger B. Reynolds, Jr., for appellees.

Jones, Eagen, O'Brien, Roberts and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Pomeroy took no part in the consideration or decision of this case.

Author: O'brien

[ 446 Pa. Page 113]

In October of 1959, appellant, William I. Mirkil Co., a real estate brokerage firm, secured two tenants to occupy adjoining parcels of land in Ardmore, Pennsylvania, owned by Harry and Millie Ettinger. A one-year lease for the larger parcel (Tract A) was with Scott Smith Cadillac Co. for $500 per month, and another one-year lease was with Herbert and Evelyn Albany at $100 per month for Tract B.

Each lease contained provisions obliging the Ettingers to pay appellant leasing commissions for its service and assigned unmatured rents to appellant to the extent of the commissions as they accrued.

In February of 1960, Robert and Ann Gaylon purchased the two parcels from the Ettingers.

From February to April of 1960, appellant continued to collect rentals from the Albanys until the

[ 446 Pa. Page 114]

Gaylons notified appellant that it should terminate the lease and obtain possession of the property for them. From February to August, appellant continued to collect the rentals on the Scott Smith Cadillac lease until it was notified by the Gaylons that it should terminate that lease as well. On or about October 31, 1960, the Gaylons entered into a new month-to-month lease directly with Scott Smith Cadillac at a rental of $500 per month. On April 29, 1961, the Gaylons leased for a one-year term all but a small portion of Tracts A and B to Scott Smith Cadillac for $750 a month. Since that time, Scott Smith Cadillac remains a tenant on the two parcels. At issue in this case is whether appellant is entitled to commissions for rents received on the new lease and renewals of that lease.

On November 15, 1963, appellant filed a complaint for commissions. The Gaylons filed preliminary objections seeking a more specific complaint. On February 2, 1969, appellant filed an amended complaint. On February 13, 1969, the Gaylons filed preliminary objections in the nature of a demurrer. The lower court, sitting en banc, sustained these preliminary objections and dismissed the complaint. The Superior Court affirmed the decision by a per curiam opinion, with Judge Hoffman filing a dissenting opinion in which Judge Montgomery and Judge Cercone joined. We granted allocatur and now we reverse.

The court en banc sustained the appellee's demurrer on the basis of ยง 1 of the Act of June 12, 1878, P. L. 205, 21 P.S. 655, which provides: "A grantee of real estate which is subject to ground rent or bound by mortgage or other encumbrance shall not be personally liable for the payment of such . . . encumbrance, unless he shall, by an agreement in writing, have expressly assumed a ...


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