No. 284 March Term, 1977, Appeal from the Decree of November 16, 1977, from the Court of Common Pleas of Erie County, Pennsylvania Orphans' Court Division as No. 229 of 1977
John P. Leemhuis, Quinn, Gent, Buseck & Leemhuis, Inc., Erie, for appellants.
John A. Spaeder, Marsh, Spaeder, Bauer, Spaeder & Schaff, Erie, for appellee.
Eagen, C. J., and O'Brien, Nix, Manderino and Larsen, JJ. Roberts, J., did not participate in the consideration or decision of this case. Manderino, J., filed a dissenting opinion.
This case presents the question of whether a broker is entitled to a commission arising out of the sale of real estate where the sale occurred after the expiration of his brokerage contract and in which he was not the effective and procuring cause of the sale. For the reasons that follow, we agree with the Orphans' Court Division of the Erie County Court of Common Pleas that the brokers in this case are not entitled to a commission. We, therefore, affirm that court's decree denying and dismissing the brokers' claim against the estate.
Viola E. Sink Baldwin died in November, 1966, leaving as her principal asset the El Patio Motel in Erie County. On June 1, 1967, her executor, the First National Bank of Pennsylvania (Bank), entered into a Listing Contract with
R. B. Way*fn1 and Amos K. Flint (brokers) real estate agents in Erie, to sell the Motel for one year and stipulated a purchase price of one million dollars "cash or such other terms or such lesser price as may be agreed to by the owner in writing." The Listing Contract further provided that the brokers would earn a six percent commission on the total sale price "when a legally binding and enforceable sales agreement shall be executed, and payable . . . when the conditions therein are fulfilled."
In the Spring of 1968, Alex Butchkosky contacted an officer of the Bank regarding the Motel, who referred him to the brokers. On April 10, 1968, Butchkosky and his wife submitted a written offer to the brokers to purchase the Motel for $900,000 in installments of $5,000 or more per month for a minimum of $100,000 per year. The balance of the purchase price, including interest, was to be paid on or before May 1, 1978. The bank rejected this offer.
On June 1, 1968, the Listing Contract between the Bank and the brokers expired. A new contract was executed on June 18, 1968, with the identical principal terms. The second Listing Contract expired on June 18, 1969.
In December, 1968, during the life of the second contract between the brokers and the Bank, the Butchkoskys again contacted the Bank regarding the Motel. This time they proposed to rent the property for ten years, paying a total rental of $480,000 in monthly installments of $4,000. The Lease Agreement executed by the Bank and the Butchkoskys on January 24, 1969 included these terms and gave the Butchkoskys an option to ...