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EUGENE BURKE v. HERMAN ISRAEL (03/16/79)

decided: March 16, 1979.

EUGENE BURKE, APPELLANT,
v.
HERMAN ISRAEL, WALTER J. FITZMARTIN, JANE A. FITZMARTIN, YVONNE EILEEN CLARK O'BRIEN, EXECUTRIX OF THE ESTATE OF MADELINE P. CLARK AND YVONNE EILEEN CLARK O'BRIEN, EXECUTRIX OF THE ESTATE OF JOHN CLARK



No. 203 April Term 1978, Appeal from the Order of Court Entered on the 12th day of September, 1977 in the Court of Common Pleas of Allegheny County, Pa., Civil Div., at No. GD 76-22033

COUNSEL

Harry J. Gruener, Pittsburgh, for appellant.

Thomas Levendos, 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 288]

This is an appeal from an order of the lower court granting a demurrer and dismissing a complaint in assumpsit.

The complaint alleges the following facts: In January 1965 appellees Walter and Jane Fitzmartin, John and Madeline Clark, and Herman Israel each acquired an interest in all coal and coal mining rights with respect to certain land in Clay, Owsley, and Perry counties in the State of Kentucky. John and Madeline Clark died, and in 1973 Patrick Clark was appointed executor of their estates. In April 1975 Patrick Clark, allegedly on behalf of all appellees, orally retained appellant to find persons interested in acquiring the coal interests. On September 9, 1975, Clark sent a letter to appellant stating the terms of this oral retainer. The letter stated:

"Patrick D. Clark

Attorney at Law

Plaza 5. 1625 Union Avenue-

Natrona Heights, Pa. 15065

412-224-2228

September 9, 1975

Eugene P. Burke

35 Easton Road

Pittsburgh, ...


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