Appeal from judgment of Court of Common Pleas of Luzerne County, No. 3871 of 1974, in case of Florence Herskovitz, executrix of the Estate of Ernest K. Herskovitz, deceased v. Vincent Vespico, a/k/a Vincent Vespico, Sr.
Robert J. Scovell, with him Mack and Meyer, for appellant.
Herbert L. Winkler, with him Patrick J. Toole, and Peter B. Broida, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j.
[ 238 Pa. Super. Page 530]
This is an appeal from the entry of summary judgment by the Court of Common Pleas of Luzerne County, by the appellant, Vincent Vespico, also known as Vincent Vespico, Sr.
The relevant facts are admitted by the pleadings. The appellee sold to the appellant and his wife property known as 18 Public Square, Wilkes-Barre, Luzerne County, Pennsylvania, on December 4, 1968, properly recorded. Title vested in appellant as surviving tenant by the entireties. The sale was made for a consideration of $30,000. The sale was subject to an agreement dated the same date as the deed, December 4, 1968, and was made part of the complaint. The following part of this agreement pertinent to this appeal reads as follows:
"That in the event of a resale by the Buyers or either of them, of property located at 18 Public Square,
[ 238 Pa. Super. Page 531]
Wilkes-Barre, Luzerne County, Pennsylvania, within a period of five (5) years from the date of Deed from Florence Herskovitz, Executrix of the Estate of Ernest Herskovitz, Deceased, to Vincent Vespico, Sr., et ux, that is, until December 4, 1973, for a sum in excess of Thirty Five Thousand Dollars ($35,000.00), the Buyers agree to divide and share equally with the Seller the sum realized in excess of Thirty Five Thousand Dollars ($35,000,00), after deduction of all real estate transfer taxes incurred by the Buyer."
The Redevelopment Authority of the City of Wilkes-Barre, by an action instituted July 6, 1973, against the appellant and his wife, now deceased, attempted to acquire the property in question by way of eminent domain proceedings. The appellant also admitted that he received $64,000 from the Redevelopment Authority. Paragraphs 11 through 14 of the amended complaint allege a sale by the appellant to the Redevelopment Authority of the property in question by a deed dated October 9, 1973 for and in consideration of $64,000; that the consideration was $29,000 in excess of the $35,000; and that the appellant has refused to pay $14,500 in violation of the agreement hereinbefore set forth.
The appellant admits the receipt of the $64,000; however, appellant made general denial that there was a sale to the Redevelopment Authority and that the transfer was not in violation of the agreement.
It is well established that in a ruling on a motion for summary judgment the record must be viewed in the light most favorable to the non-moving party and all doubts as to the existence of a general issue of fact must be resolved against the moving party. Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970). Furthermore, in considering admitted facts pursuant to Pa. R.C.P. 1029, the court may consider averments ...