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RKO-STANLEY WARNER THEATRES v. RALPH R. GRAZIANO. APPEAL JACK JENOFSKY (04/07/76)

decided: April 7, 1976.

RKO-STANLEY WARNER THEATRES, INC., A DELAWARE CORPORATION, APPELLEE,
v.
RALPH R. GRAZIANO. APPEAL OF JACK JENOFSKY



COUNSEL

Morton B. Wapner & Associates, Robert S. Dubin, Philadelphia, for appellant.

Wolf, Block, Schorr & Solis-Cohen, Franklin H. Spitzer, Philadelphia, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case. Roberts, J., filed a concurring opinion in which Nix, J., joined. Manderino, J., filed a dissenting opinion.

Author: Eagen

[ 467 Pa. Page 222]

OPINION OF THE COURT

On April 30, 1970, RKO-Stanley Warner Theatres, Inc., [RKO], as seller, entered into an agreement of sale with Jack Jenofsky and Ralph Graziano, as purchasers. This agreement contemplated the sale of the Kent Theatre, a parcel of improved commercial real estate located at Cumberland and Kensington Avenues in Philadelphia, for a total purchase price of $70,000.*fn1 Settlement was originally scheduled for September 30, 1970, and, at the request of Jenofsky and Graziano, continued twice, first to October 16, 1970 and then to October 21, 1970. However, Jenofsky and Graziano failed to complete settlement on the last scheduled date.

[ 467 Pa. Page 223]

Subsequently, on November 13, 1970, RKO filed a complaint in equity seeking judicial enforcement of the agreement of sale. Although Jenofsky, in his answer to the complaint,*fn2 denied personal liability for the performance of the agreement, the chancellor, after a hearing, entered a decree nisi granting the requested relief sought by RKO.*fn3 Exceptions to the decree of the chancellor were filed and dismissed by the court en banc which directed that the decree nisi be entered as a final decree. This appeal ensued.

At the time of the execution of this agreement, Jenofsky and Graziano were engaged in promoting the formation of a corporation to be known as Kent Enterprises, Inc. Reflecting these efforts, Paragraph 19 of the agreement, added by counsel for Jenofsky and Graziano, recited:

"It is understood by the parties hereto that it is the intention of the Purchaser to incorporate. Upon condition that such incorporation be completed by closing, all agreements, covenants, and warranties contained herein shall be construed to have been made between Seller and the resultant corporation and all documents shall reflect same."

In fact, Jenofsky and Graziano did filed Articles of Incorporation for Kent Enterprises, Inc., with the State Corporation Bureau on October 9, 1971; twelve days prior to the scheduled settlement date. Jenofsky now contends the inclusion of Paragraph 19 in the agreement and the subsequent filing of incorporation papers, released him

[ 467 Pa. Page 224]

    from any personal liability resulting from the ...


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