No. 164 April Term 1977, Appeal from the Order Entered Oct. 14, 1976 of the Court of Common Pleas, Civil Division of Greene County at No. 638 In Equity.
Wiley A. Bucey, Jr., Pittsburgh, with him Frank A. McFerran, Jr., Pittsburgh, for appellant.
Samuel L. Rodgers, Washington, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 36]
This appeal is from an order sustaining preliminary objections in the nature of a demurrer.
Appellant sued in equity to compel specific performance of a property settlement agreement that she alleges was agreed to by appellee, her estranged husband. In his preliminary objections appellee contended that the complaint revealed on its face that he had not agreed to the property settlement agreement. The lower court found this contention meritorious, sustained the preliminary objection, and dismissed the complaint. We reverse.*fn1
The complaint averred, in pertinent part:
12. Prior to January 21, 1975, the parties, through their counsel, reached agreement on a property settlement which on January 21, 1975 was reduced to writing by Frank A. McFerran, Jr., counsel for Plaintiff, and submitted to Louis P. Vitti, Esq., counsel for Defendant. On or about January 31, 1975, Mr. McFerran prepared and delivered to Mr. Vitti a proposed deed from Plaintiff to Defendant covering the parties' residence and a proposed mortgage from Defendant to Plaintiff, also covering the residence, to secure payment of Defendant's deferred obligations to Plaintiff under the property settlement.
[ 255 Pa. Super. Page 3713]
. On or about February 4, 1975, Defendant returned to Greene County pursuant to the understanding between the parties and their counsel that a property settlement had been reached and would be implemented forthwith.
14. On or about February 8, 1975, Defendant, through his counsel, Louis P. Vitti, Esq., requested of Plaintiff, through her counsel, that Defendant be permitted to have a checking account and receive compensation from his employer, Drs. Barger and Gordon, Inc., so that, inter alia, Defendant could make arrangements to begin disbursing payments to Plaintiff. At said time, Defendant's counsel assured Plaintiff's counsel that Defendant had signed the Property Settlement Agreement submitted to Plaintiff's counsel as well as the mortgage and that he would sign the wage attachments although, through inadvertence, he had failed to do so at the time the Property Settlement Agreement and mortgage were signed. Plaintiff's counsel in turn advised Defendant's counsel that Plaintiff had signed a copy of the Property Settlement Agreement.
15. The conversation of February 8, 1975 between counsel for the parties was confirmed in material part in writing by letter dated February 11, 1975 from Mr. Vitti to Mr. McFerran, copy of which is appended hereto as Exhibit "A" and incorporated herein by reference. Said letter expressly assured Plaintiff and her counsel that the initial payment of $60,000 would be in the possession of Defendant's counsel within 10 days and ...