Appeal from order of Superior Court, Oct. T., 1969, No. 617, affirming 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.
No oral argument was made nor brief submitted for appellee.
Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. The former Mr. Chief Justice Bell and Mr. Chief Justice Jones took no part in the consideration or decision of this case. The former Mr. Justice Barbieri took no part in the decision of this case.
On May 8, 1962 appellant Anna Blumer commenced an action in assumpsit against appellee Martin Dorfman. The complaint alleged facts which may be summarized as follows: In 1958 appellant was the owner of certain premises located at 1900 North 32nd Street in Philadelphia which she leased to a tenant. Appellee Dorfman was a real estate broker in the area. In September, 1958, while the premises were under lease, appellant and appellee entered into an oral agreement whereby the latter promised that in return for appellant's terminating the tenancy of the then occupant of the premises and entering into a new lease with a tenant to be obtained by him, Dorfman, he would guarantee the performance of the new lease if the tenant obtained by him should default. Pursuant to this agreement, appellant released her old tenant and accepted one procured by appellee. The new tenant defaulted in December, 1958. In April of 1959, the default still continuing, appellant made demand on the appellee to pay the rent, which appellee refused to do. Instead, the parties entered into a new oral agreement whereby the appellant released the new tenant for the balance of the term and rented the premises to the appellee personally for 10 years at a rental of $250 per
month, the appellee further agreeing to pay excess water bills and repair costs. Pursuant to this arrangement, Dorfman occupied the premises from April, 1959 to January, 1962; he paid the rent until March, 1961, but not thereafter; at the end of January, 1962 appellee abandoned the premises.
Appellant's complaint demanded damages totaling $5,925.04, comprised of the following items: (1) the rent due by the new tenant for the period December, 1958 to April, 1959; (2) the rent due by Dorfman himself for the period March, 1961 through January, 1962; and (3) the water and repair bills for the time Dorfman occupied the premises.
Appellee filed an answer to the complaint, admitting that as a real estate agent and for a commission he had obtained a tenant for the plaintiff in September, 1958, but denying having made any personal commitments by way of guaranteeing the rent. All other averments of the complaint were denied. Under the heading of new matter, appellee asserted the Statute of Frauds as a defense to both alleged oral agreements. The provisions relied upon were those relating to promises to answer for the debt of another*fn1 and to leases to exceed three years in duration.*fn2 The answer was
not endorsed with a notice to plead to the new matter, and appellant filed no reply.
Thereafter*fn3 appellee moved for judgment on the pleadings, alleging that the complaint on its face disclosed violations of the Statute of Frauds and that by failing to reply to the new matter, plaintiff had admitted the applicability of the relevant provisions of the statute. The trial ...