No. 141 October Term, 1978, Appeal from the oRder of the Court of Common Pleas of Susquehnnna County at No. 190 April Term, 1977.
Robert J. Smith, Montrose, for appellant.
Paul A. Kelly, Montrose, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 240]
This is a claim in assumpsit for a broker's commission for sale of real estate. The owner-vendor appeals from a finding by the lower court in favor of the broker on a Motion for Summary Judgment. We hold that the lower court must be reversed.
Plaintiff is a licensed real estate firm, to whom defendant, an owner of certain realty, gave a letter dated December 3, 1976, undertaking to pay plaintiff a commission of six percent (6%) of the gross selling price if defendant sold the property to one Nusser.*fn* The letter provided (Paragraph 3) that the commission is "due and payable" only if the sale is completed to Nusser and (Paragraph 4) that:
"This contract shall not be interpreted as a listing or an exclusive listing contract but shall be limited only to a sale to the individual prospective buyer above named."
The parties stipulated in writing to certain facts (Record 9a), and both sides filed motions for summary judgments. The Court found in favor of plaintiff for $18,000.00, and defendant has appealed to this court.
The stipulated facts, encapsulated, in addition to those stated above, include:
Paragraph 2. On February 21, 1977, plaintiff presented to defendant an unsigned copy of a Sales Agreement from
[ 262 Pa. Super. Page 241]
Nusser for $300,000.00, but defendant refused to ...