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GUY CERCONE AND PEARL CERCONE v. GILBERT P. CERCONE AND FRANCINE M. SAWYER. APPEAL FRANCINE M. SAWYER (04/13/78)

decided: April 13, 1978.

GUY CERCONE AND PEARL CERCONE, HIS WIFE, APPELLEES,
v.
GILBERT P. CERCONE AND FRANCINE M. SAWYER. APPEAL OF FRANCINE M. SAWYER



No. 612 April Term, 1977, Appeal From the Order of the Court of Common Pleas of Allegheny County, Civil Division, Entered February 22, 1977 at No. GD-75-16301.

COUNSEL

Alfred C. Maiello, Pittsburgh, for appellant.

John A. Caputo, Pittsburgh, with him Nicholas R. Stone, Pittsburgh, for appellees.

Watkins, President Judge and Jacobs, Hoffman, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Cercone, J., did not participate in the consideration or decision of this case. Price, J., dissents.

Author: Hoffman

[ 254 Pa. Super. Page 383]

Appellant contends that the lower court improperly granted summary judgment. Because we agree with this contention, we reverse the order of the lower court.

On July 14, 1975, appellees, Guy Cercone and his wife Pearl, filed a complaint in assumpsit against their son, Gilbert P. Cercone, and his ex-wife, appellant Francine M. Sawyer. In paragraph five of the complaint, appellees alleged that they entered into an oral contract with appellant and their son [hereinafter referred to jointly as defendants] in 1972 while defendants were still married; the contract contemplated a loan which defendants would use in order to pay the construction costs of their new house. In paragraph six of the complaint, appellees alleged that on August 1, 1972, they "loaned Defendants the sum of $18,482.91, which sum the Defendants jointly received in their possession and promised to repay Plaintiffs on demand." Paragraphs seven and eight of the complaint alleged that on June 14, 1972, and July 10, 1972, appellees paid a sum of money totaling $4,200, to third parties at the request of the defendants and in reliance on defendant's promise to repay appellees on demand. In paragraph ten of the complaint, appellees alleged that despite their repeated demands for payment, the defendants refused to make payment.

On August 26, 1975, appellant filed preliminary objections to appellees' complaint. Appellant asserted that paragraph five of the complaint alleged a gift transaction rather than a loan transaction, and, thus, could not support a cause of action in assumpsit. Appellant also asked for disclosure of the identity of the third parties to whom appellees allegedly paid money.

On September 2, 1975, appellees filed an amended complaint, identical in almost all respects, including the numbering of paragraphs, to the original complaint. However, paragraph five of the amended complaint no longer specified the purpose of the loan, and paragraphs seven and eight disclosed the identity of the contractor and woodworking company to whom appellees allegedly paid money at defendants' behest.

[ 254 Pa. Super. Page 384]

On September 21, 1975, appellees' son filed an answer to his parents' complaint. He admitted all allegations. As a result, the lower court, pursuant to Pa.R.Civ.P. 1037; 42 Pa.C.S. 1037, entered judgment upon admission against Gilbert P. Cercone in the amount of $22,682.91 plus interest.

On September 19, 1975, appellant filed an answer. In paragraphs five through nine of the answer, appellant averred that "she has no knowledge of the truth of the facts averred [in the corresponding paragraph of the amended complaint] and after reasonable investigation has been unable to ascertain their truth or falsity. Therefore, defendant denies these averments and demands proof thereof at the trial of this cause." In paragraph ten of the answer, appellant admitted that she had received one letter from appellees' attorney which demanded payment on the alleged loan. However, in this paragraph, appellant alleged that she responded to this demand by sending appellees a letter which stated that appellant had no knowledge of any such loan being made to her ex-husband and herself. Appellant attached copies of both letters to her answer as exhibits. Finally, in further answer to appellees' complaint, appellant averred in new matter that on February 6, 1974, appellees conveyed a lot upon which a house had been erected to appellant and her then husband as tenants by the entireties for a sum of $1.00. According to appellant, this transfer constituted an executed gift.

On October 7, 1975, appellees filed a reply to appellant's new matter. This reply admitted that appellees had sold the lot upon which a house had been constructed to defendants for a sum of $1.00. However, appellees denied that this transaction signified an executed gift. Instead, appellees reiterated that they loaned ...


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