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CHRISTIANSEN ET AL. v. PHILCENT CORPORATION ET AL. (12/11/73)

decided: December 11, 1973.

CHRISTIANSEN ET AL., APPELLANTS,
v.
PHILCENT CORPORATION ET AL.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1971, No. 61, in case of Mr. L. A. Christiansen, Mr. and Mrs. Richard J. Stewart, Miss Mary A. Faul, Miss Anne Fragala, Mr. and Mrs. Anthony Silvagni, Mr. Evan R. Sorber, Mr. and Mrs. Jack Paller, Dr. A. James Morgan v. Philcent Corporation, Ralph Heller, Frank Weise, A.I.A., and Penn Federal Savings and Loan Association.

COUNSEL

Samuel Rappaport, with him Rappaport and Furman, for appellants.

Richard F. Stern, with him Robert J. Stern, and Stern, Maxmin & Stern, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J.

Author: Spaeth

[ 226 Pa. Super. Page 159]

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer, filed by Penn Federal Savings and Loan Association, and dismissing the complaint with respect to appellee.*fn1 In reviewing this order, only the well pleaded factual allegations of the complaint, together with the reasonable inferences therefrom, but not the pleader's conclusions or averments of law, may be considered. Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964); Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962). The complaint is in assumpsit, and the well pleaded facts are as follows:

[ 226 Pa. Super. Page 160]

During 1969 and the spring of 1970 appellants (plaintiffs) purchased new homes in a development known as Lombard Mews built by Philcent Corp. Appellee provided all the construction financing and some of the "final mortgages."*fn2 The homes are inherently defective, having faulty heating and air-conditioning systems, faulty plumbing, warped doors and windows, leaking roofs, other water leakage, cracked stucco, and garages too small to accommodate full-size cars.

Paragraph 7 of the complaint sets forth appellee's connection with the case: "Defendant, Penn Federal Savings and Loan Association, not only provided the construction financing and the final mortgages to many of the purchasers, but was also a co-developer of the project in that it provided substantially all of the construction money required to build the homes of the plaintiffs and exercised supervision and control over the design and construction of the project." Paragraph 24 alleges that appellee's "participation" was made known to appellants by large posters and pamphlets "prominently displayed" in the sales office. Paragraph 25 alleges that these posters proclaimed appellee's participation in other successful housing projects in center city Philadelphia.

It is further alleged that "[appellee] was well aware of the thin capitalization of Philcent Corp. and the precarious position of Defendant, Ralph Heller" (paragraph 27), and that "[appellee] did participate in both the physical and financial planning of the development and indeed was the final arbiter of all problems" (paragraph 28). Finally, it is alleged that appellants relied on the "reputation and expertise" of appellee and were led to believe that appellee "would inspect and supervise the design and construction of their homes" (paragraph 29).

[ 226 Pa. Super. Page 161]

Under Pa. R. C. P. 1028(c), appellants had the right to amend their complaint within ten days after the filing of appellee's preliminary objections. They elected, however, not to amend. For purposes of appeal, it will be assumed that they have pleaded as strong a case as they can. Schwartz v. Manufacturers' Casualty Insurance Co., 335 Pa. 130, 6 A.2d 299 (1939); Maguire v. Preferred Realty Co., 257 Pa. 48, 101 A. 100 (1917).

We hold that the complaint fails to state a cause of action in assumpsit. Insufficient facts are pleaded to show the existence of any contractual relationship between appellants and appellee, ...


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