No. 108 March Term, 1977, Appeal from the Order dated March 19, 1976 of the Court of Common Pleas, Civil Action - Law, of Dauphin County at No. 1346 June Term, 1973.
Bari Boyer, DuBois, with him Bruce E. Cooper, Harrisburg, for appellant.
Clyde W. McIntyre, Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Van der Voort, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
The receiver of First State Life Insurance Company of America, Inc., (Insurance Company), the appellant herein, brought this assumpsit action against 20th Century Corporation, the appellee herein. The action seeks to recover damages for the breach of an alleged oral contract between the parent company of the Insurance Company, First State Life Insurance Investors, Inc., (Investors Corporation) and appellee. The alleged oral contract involved, according to the appellant's complaint, a promise by the appellee to purchase 500,000 shares of the Insurance Company for the sum of $250,000. At the time the alleged oral contract was entered, the Insurance Company was a mere corporate shell organized as a subsidiary of the Investors Corporation for the purpose of selling life insurance in Delaware.
Although the history of the Investors Corporation and the birth of the Insurance Company were sometimes stormy and at all times complicated, the relevant evidentiary factors, as framed in the pleadings include a May 12, 1967, letter written by the Executive Vice President of appellee to the Insurance Commissioner of Delaware, a June 30, 1967, letter written by the President of appellee to an attorney closely involved in the affairs of the Investors Corporation, and a March 15, 1969, affidavit sworn to by the President of appellee.
The above writings were attached to appellant's Petition for Reconsideration filed November 7, 1975, after the court below had sustained appellee's demurrer on the grounds that appellant had not demonstrated compliance with the statute of frauds.
Initially we note that procedurally the appellee's demurrer was improper. Duffee v. Judson, 251 Pa. Super. 406, 380 A.2d 843 (1977). However, since this objection has not been raised, we may not consider it on this appeal.
Further, although the lower court sustained appellee's demurrer initially on September 29, 1975, and this appeal was not filed until April 15, 1976, we note that the lower court suggested and permitted this procedure. By memorandum accompanying the order of September 29, 1975, the court suggested, "If any writings in fact exist, the proper procedure would be to petition the court for reconsideration of the demurrer, attaching the writings." (R. 59a). Also, by order dated October 20, 1975, the lower court provided an additional 20 days from that date for the filing of the Petition for Reconsideration. The petition was in fact filed within that time on November 7, 1975. We deem this procedure to comply with Pa.R.A.P. 1701(b)(3). Accordingly, the time for filing the appeal began to run anew after the entry of the decision on reconsideration, which in this case occurred on March 19, 1976, when the Petition for Reconsideration was denied.
Turning to the merits of the argument, the applicable statute of frauds provides:
"A contract for the sale of securities is not enforceable by way of action or defense unless
(a) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of ...