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decided: March 16, 1979.


No. 780 April Term 1977, Appeal from Adjudication and Final Decree of the Court of Common Pleas of Allegheny County, Pa., Civil Div., entered April 25, 1977, at Nos. 2693 Oct. Term 1971, and 157 Oct. Term, 1972, in Equity, denying the plaintiff's motion to take off nonsuits.


James L. McAneny, of McCrady, Nicklas & McCrady, Pittsburgh, for appellant.

David J. Humphreys, of Hess & Humphreys, Pittsburgh, for appellees.

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

Author: Spaeth

[ 264 Pa. Super. Page 357]

This is an appeal from the refusal to take off orders of compulsory non-suit.

In reviewing the propriety of the orders, we must apply the rule stated in Shechter v. Shechter, 366 Pa. 30, 33, 76 A.2d 753, 755 (1950), where the Supreme Court said that a non-suit "should only be entered in a clear case where the plaintiff cannot recover under any view of the evidence with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff. As a general rule unless there are no conflicting inferences to be drawn it is far better to hear the defense so that the appellate court may have the benefit of findings of fact and conclusions of law by the chancellor confirmed by the court en banc." (citations omitted) See also Schwartz v. Urban Redevelopment Auth. of Pittsburgh, 411 Pa. 530, 192 A.2d 371 (1963); McAuliffe v. Constantine, 228 Pa. Super. 52, 323 A.2d 158 (1974). Read in this light the testimony may be summarized as follows. In considering this summary, one should bear in mind that it states only appellant's evidence; had appellees' evidence been heard, the case might appear to be very different.

Appellant owned a piece of land in the Oakland section of Pittsburgh, on which was located the Civic Center Motor-Hotel. Appellant leased space in the Motor-Hotel to others, and himself operated a restaurant there. During the summer of 1970, appellant learned that his land was to be taken by eminent domain, and that he would have to move out of his restaurant at the end of September 1971. Record at

[ 264 Pa. Super. Page 358159]

    a. As a consequence, appellant began to inquire into the possibility of buying other land in the Oakland section. Sometime during the late fall of 1970, in his office in the Motor-Hotel, appellant met appellee Purcell, who was involved in real estate development in the Oakland section, and who had previously tried to interest appellant in a number of properties there. Appellant asked Purcell about financing the building of a new Motor-Hotel. When Purcell indicated that he could get financing, appellant proposed that Purcell become involved as a 50% owner of the new Motor-Hotel; appellant stated various terms, notably that he would have full management of the new Motor-Hotel and could operate a restaurant there on a $1 a year lease. Record at 75a-77a. Appellant testified that Purcell was "agreeable" to these terms. Record at 77a.

Appellant and Purcell proceeded by automobile to a piece of property located at 3454 Forbes Street in the Oakland section. Record at 78a. Appellant told Purcell that he had previously been interested in this property, but that the asking price of $350,000 had been too high. Record at 81a. Appellant explained that the owner was one Mrs. Ferguson, Record at 79a, who lived in Florida, Record at 90a. Back in appellant's office, appellant asked Purcell to visit Mrs. Ferguson, while he was on vacation in Florida, and find out how much she wanted for the property. Record at 90a. Appellant testified that Purcell agreed that he would see her and that any agreement would be between her and appellant. Record at 90a.

Two witnesses corroborated appellant's testimony. Anthony Schulli, manager of the Motor-Hotel restaurant, testified that appellant called him into the meeting, and that he heard appellant say that "[h]e [Purcell] was supposed to secure the piece of property for [appellant], and Mr. Purcell said he would." Record at 192a. Alfred H. Cicerto, appellant's accountant, testified that he heard appellant ask Purcell "to be his agent to secure that property [Ferguson property] and he ...

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