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MYSHKO ET UX. v. GALANTI (09/19/73)

decided: September 19, 1973.

MYSHKO ET UX., APPELLANTS,
v.
GALANTI



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1973, No. 138, in case of Robert W. Myshko and Bertha Myshko v. Henry A. Galanti, individually and trading as Venetian Cleaners and Dyers and Richmond Linen Supply Company.

COUNSEL

Michael Pepe, Jr., for appellants.

Morris Passon, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.

Author: Jones

[ 453 Pa. Page 413]

This is an appeal from a decree of the court below dismissing the appellants' complaint in equity.

This controversy arose out of an alleged oral contract for the sale of the appellants' business, Richmond Linen Supply Company, to the appellee. According to the appellants' complaint, the parties entered into an oral agreement which provided that, in exchange for $59,800 payable in installments, the appellants would transfer their business to the appellee. All merchandise, equipment, customer lists, goodwill, rights to the use of the business name and covenants by the appellants not to compete were allegedly included in the sale. The complaint further alleges that, after the appellants completed their obligations under the contract by transferring the business, the appellee, who had paid only $5,000, repudiated the contract and refused to make further payments. When the appellee stopped making payments under the alleged contract, the appellants filed a complaint in assumpsit to recover the full purchase price bargained for in the agreement.*fn* The appellee's answer to the complaint in assumpsit denied the existence of an agreement. The appellee's position in the assumpsit action is that, while there had been oral negotiations for the sale of the appellants' business, no agreement was ever reached.

While the assumpsit action was still pending, the appellants filed the complaint in equity which is the subject of this appeal. In the equity action the appellants

[ 453 Pa. Page 414]

    alleged the same facts as those set forth in the complaint in assumpsit. In addition, the complaint in equity alleges that when the appellee stopped making payments under the contract, the appellants re-established their linen supply business using their original business name and attempted to recapture their old customers. In the equity action the appellants sought an injunction to prohibit the appellee from continuing to do business under the Richmond Supply name, the return of all goods and equipment transferred under the alleged agreement and an accounting to recover earnings derived from former Richmond Supply customers by the appellee as a result of his operation of the appellants' business. The appellee filed preliminary objections to the complaint in equity asserting (1) the existence of an adequate remedy at law and (2) the pendency of a prior action. After a hearing the lower court dismissed the appellee's preliminary objections but nevertheless dismissed the appellants' complaint in equity. This appeal is from the dismissal of the complaint.

The appellants challenge both the power of the lower court to dismiss the complaint and the propriety of that action. The appellants contend that, after the lower court dismissed the appellee's preliminary objections, it had no power to dismiss the complaint in equity. The appellants also argue that there is no adequate remedy at law and that the pending action in assumpsit arising out of this transaction is not a bar to this action in equity because different forms of relief are sought in each case. We do not agree with any of the appellants' arguments as applied to this case and affirm the decree of the court below dismissing the appellants' complaint in equity.

The appellants' initial contention, that the court below did not have the power to dismiss their complaint at the same time it ...


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