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JAMES DI SANTE AND THERESA DI SANTE v. RUSS FINANCIAL CO. (12/02/77)

decided: December 2, 1977.

JAMES DI SANTE AND THERESA DI SANTE, APPELLANTS,
v.
RUSS FINANCIAL CO., RUSS TOGS, INC., AND ALAN B. PORTNOFF



No. 1281 October Term, 1976, Appeal from the Order dated February 19, 1976, of the Court of Common Pleas of Chester County, Pennsylvania, Civil Action, Law Division, at No. 75 June Term, 1975.

COUNSEL

Anthony L. V. Picciotti, West Chester, for appellants.

Randy L. Sebastian, West Chester, with him Michael B. Kean, West Chester, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 251 Pa. Super. Page 186]

This is an appeal from an order of the court below sustaining the preliminary objections of appellee, Alan B. Portnoff, to the appellants' complaint and dismissing the complaint as to him alone. We affirm the order of the court below.

On July 3, 1975, the appellants filed a complaint in assumpsit and in trespass against Russ Financial Co., Russ Togs, Inc., and appellee, Alan B. Portnoff, alleging the following facts. On December 18, 1973, Russ Financial Co. entered a default judgment for $3,101.03 against Hobermans,

[ 251 Pa. Super. Page 187]

    a retail clothing store owned and operated by the appellants. Russ Financial Co., by its attorney, the appellee, then obtained a writ of execution against the appellants' business property. At that point, the appellants tendered $1,000 to the appellee as partial payment of the judgment against them, promising to pay the balance within forty-five days. By letter dated May 13, 1974, the appellee acknowledged receipt of the $1,000 payment and cautioned that ". . . unless the balance is paid within 45 days from the date of this letter, I intend to expose and hold Sheriff's Sale on the assets of defendant." Thirty days later, on June 11, 1974, the appellee conducted an execution sale of the appellants' assets. Based on these facts, the appellants alleged in assumpsit that the appellee had breached a written agreement to delay the execution sale of appellants' assets for forty-five days after receipt of the appellants' $1,000 payment. The appellants further complained in trespass that the appellee maliciously used and abused legal process to execute a sheriff's sale of the appellants' assets in violation of his agreement to delay such a sale.

On August 18, 1975, the appellee filed preliminary objections to the appellants' complaint, averring, inter alia,*fn1 that the complaint did not state a valid cause of action upon which damages could be awarded. Specifically, the appellee claimed that the appellants failed to aver any consideration passing from the appellants to the appellee in exchange for the appellee's promise to defer exposing the appellants' property to a sheriff's sale. Moreover, the appellee denied that the appellants' complaint demonstrated either malicious use or abuse of legal process. On February 19, 1976, the court below sustained the appellee's preliminary objections in the nature of a demurrer and dismissed the appellants' complaint as to him alone. The appellants now contest the propriety of the lower court's action.

[ 251 Pa. Super. Page 188]

The appellants first contend that the appellee's promise to refrain from executing a sheriff's sale of the appellants' property constituted sufficient consideration to establish a legally enforceable contract. This argument fails to recognize basic hornbook law that a legally enforceable contract requires that each contracting party supply consideration to the other. E. g., Calamari, J. and Perillo, J., Contracts ยง 567, at 131 (1970). By paying $1,000 to the appellee, the appellants did nothing other than that which they were already legally obligated to do. We find the appellants' contention without merit.

The appellants next assert that the appellee is precluded by the doctrine of promissory estoppel from denying the existence of a legally enforceable obligation. Although the doctrine of promissory estoppel is recognized as law in this Commonwealth, e. g., Berliner v. Bee Em Mfg. Co., 383 Pa. 458, 119 A.2d 65 (1956); Fried v. Fisher, 328 Pa. 497, 196 A. 39 (1938), we find that the appellants may not now seek ...


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