William C. Robinson, Henninger & Robinson, Butler, for appellant.
Lee C. McCandless, McCandless, Chew & Krizner, Butler, Joseph W. Conway, Conway & Stabile, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 242 Pa. Super. Page 140]
Appeal is taken to our Court from the Order of August 2, 1975, finalizing a Decree Nisi and dismissing exceptions thereto filed by the present appellant. Appellees are husband and wife who had agreed to purchase certain real estate in Butler County, Pennsylvania, from its owner, the appellant. Key Realty was the agent, and Betty Lewis, its broker; neither of them is appealing. In their Complaint, appellees alleged that they had moved into the property prior to closing and found certain items and fixtures removed from the premises, these being included in the purchase price pursuant to the agreement of sale. Appellees demanded a pro rata abatement in the purchase price; the appellant refused to make any abatement and the parties could not close the transaction. Appellees then on July 15, 1975, sued for specific performance and an abatement of the purchase price to the extent that they had received less than had been agreed upon. Appellant filed preliminary objections alleging that appellees had a remedy at law, that a copy of the agreement had not been attached to the complaint, and that appellees had not stated a cause of action against appellant.*fn1 On September 6, 1974, the following Order was entered:
NOW, September 6, 1974, after a conference in chambers with the above named attorneys, this Court, on its own motion, makes the following order:
1. Plaintiff and defendant, Mrs. Puntureri, are directed to close their real estate transaction pursuant to their agreement of May 8, 1974.
[ 242 Pa. Super. Page 1412]
. Plaintiffs are to pay Mrs. Puntureri the additional sum of $630.00, being rent and interest due to delay in closing.
3. The proceeds of sale, including the aforementioned $630.00, less seller's share of closing costs, are to be delivered to Mrs. Puntureri with the exception that from said sum, there is to be deducted the sum of $1851.00 which is to be delivered to the Prothonotary and deposited at this number and term to be held until the litigation in this proceeding is decided. The $1851.00 consists of $166.00 of Mrs. Puntereri's fund and $1685.00 being balance due Mrs. Betty Lewis, on her real estate commission.
4. The Court is to be advised when the matter is closed so that appropriate steps can be taken to complete this proceeding.
5. Mrs. Betty Lewis is restrained from instituting any other proceedings to collect her real estate commission."*fn2 The next thing that happened was on March 17, 1975 when Betty Lewis filed a petition for the payment to her of her commission from the fund in the hands of the Prothonotary. By its Order of March 17, 1975, the lower court set June 4, 1975, as the date for an evidentiary hearing on the matter of disposition of the funds held by the Prothonotary.*fn3 During this hearing counsel for appellant objected to the proceedings on the ground that his preliminary ...