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LURIA v. ROBBINS ET AL. (03/27/73)

decided: March 27, 1973.

LURIA
v.
ROBBINS ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 6522, in case of Joseph Luria and Leon Luria v. John A. Robbins, individually, and Jarnap Co., Inc.

COUNSEL

Tom P. Monteverde, with him Max L. Lieberman, and Pelino, Wasserstrom, Chucas & Monteverde, for appellants.

Michael H. Egnal, with him Egnal and Egnal, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.

Author: Cercone

[ 223 Pa. Super. Page 457]

This is an appeal by the defendants, John A. Robbins*fn1 and Jarnap Co., Inc., from the overturning by the

[ 223 Pa. Super. Page 458]

    court en banc (consisting of one judge who was not the trial judge) of the trial judge's finding in defendants' favor. The case was tried non-jury on plaintiffs' complaint in assumpsit seeking the return of $30,000 paid to defendants on the purchase of a shopping center in Moorestown, New Jersey. The complaint alleged that the money was only placed in custody with defendants pending plaintiffs' decision to sign an agreement which first had to be approved by plaintiffs' attorney. The complaint alleged that plaintiffs subsequently refused to sign the agreement and their attorney refused to approve the proffered agreement. No reason was alleged by plaintiffs for their refusal to enter into a signed agreement or for their counsel's refusal to approve the agreement.

Defendants filed an answer and amended answer alleging a binding and enforceable oral agreement was entered into on May 2, 1966 for the purchase of the shopping center requiring a cash payment of $300,000, and that the $30,000 was paid pursuant to that agreement. Defendants counterclaimed for the balance of the purchase price but no longer press that claim, the shopping center having been subsequently sold to a third party at what they state to be a "significant loss". Defendants do, however, in this appeal, argue and defend their right to retain the down payment.

Plaintiffs filed preliminary objections to defendants' answers and counterclaim, which objections were dismissed. Thereafter plaintiffs filed a reply, containing new matter, in which they alleged material misrepresentations had been made to them concerning the property. Defendants, in a counter-reply, denied the misrepresentations.

This case was consolidated with the companion case of the real estate agent, Samuel Wachter, who sued plaintiffs for his commission (which is the subject of a

[ 223 Pa. Super. Page 459]

    separate appeal), and was tried non-jury on April 17, 1968, before Judge Greenberg. Judge Greenberg, after hearing the evidence, found that a valid agreement existed between plaintiffs as purchasers and the defendants as vendors and that the plaintiffs had breached this agreement. However, Judge Greenberg found that defendants were not entitled to specific performance but only to ...


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