Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1973, No. 2419, in case of William Kroiz, individually, and t/a Kroiz Brothers v. Jack W. Blumenfeld and Henry Avenue Building Corporation.
A. Jay Molluso, and Techner, Rubin & Shapiro, for appellants.
Irwin S. Lasky, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 229 Pa. Super. Page 195]
This is an appeal from the Order of the court below granting the plaintiff-appellee's motion for a judgment on the pleadings. The facts as disclosed by the pleadings may be summarized as follows:
[ 229 Pa. Super. Page 196]
The appellee (hereinafter, Kroiz) was a subcontractor of the appellants, and agreed to install hardwood floors at the appellants' apartment complex. The subcontract provided that Kroiz would be liable for materials furnished in connection with the installation of the floors. In October of 1967, the Cromar Corporation, a materials supplier, instituted suit against appellants for goods supplied.
Appellants filed a complaint against Kroiz as an additional defendant, alleging that Kroiz was solely liable to Cromar by virtue of the subcontract. At the time, appellants still owed money to Kroiz under the subcontract. Appellants and Kroiz, therefore, entered into an agreement providing that all money due Kroiz would be paid, reserving $7,000.00 in an escrow account pending the outcome of the Cromar litigation. It is agreed that a letter of March 19, 1968 from appellant's counsel to Kroiz contained the agreement of the parties. That letter read as follows:
"I reviewed the contents of your letter of February 9, 1968 with my client, Jack W. Blumenfeld, in his individual capacity and in his capacity as an officer of Henry Avenue Bldg. Corp. As you are aware, the Cromar Co. instituted suit against Mr. Blumenfeld individually for $6,736.55 plus interest and costs. You are, I am sure, aware of the litigation involved in that suit.
"Your client has agreed that Henry Avenue Bldg. Corp. shall withhold enough money to cover either itself or Mr. Blumenfeld pending the outcome of the litigation. I feel that that should be $7,000. Our client is agreeable to paying at this time the sum due under the contract in excess of $7,000.00.
"You have agreed on behalf of your client that Kroiz Bros. will not institute suit against either Henry Avenue Bldg. Corp. or Jack W. Blumenfeld pending the outcome of the Cromar litigation. In the event Jack ...