No. 117, MARCH TERM, 1979, Appeal from the Order of the Superior Court of Pennsylvania, Pittsburgh District, entered March 16, 1979, at No. 780 April Term, 1977
David J. Humphreys, Mary Reitmeyer, Pittsburgh, for appellants.
John B. Nicklas, Jr., McCrady, Nicklas & McCrady, James McAnemy, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Kauffman, JJ. Flaherty, J., did not participate in the consideration or decision of this case.
This appeal is from the order of the Superior Court reversing the entry of an order of compulsory non-suit.*fn1 In 1971, appellee, Thomas A. Scott ("Scott"), brought an action in equity against appellants, Robert Purcell ("Purcell") and Oaklander Associates ("Oaklander"), seeking a constructive trust on certain real estate on the ground that Purcell had breached an agreement to act as agent for Scott in its purchase by taking title in the name of Oaklander. After completion of Scott's testimony on the issue of liability, the trial court granted appellants' motions for compulsory non-suit.*fn2 The trial court sitting en banc refused to take off the nonsuits, dismissed the complaint and entered a final decree in favor of appellants. On appeal the Superior Court reversed and remanded for a new trial. Scott v. Purcell, 264 Pa. Super. 354, 399 A.2d 1088 (1978). We affirm.
Under Pennsylvania law, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference arising therefrom; all conflicts must be resolved in his favor. Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 231, 213 A.2d 608, 609 (1965); Penn v. Isaly Dairy Co., 413 Pa. 548, 550, 198 A.2d 322, 323, (1964); Schwartz v. Urban Redevelopment Authority of Pittsburgh, 411 Pa. 530, 532-33, 536-37, 192 A.2d 371, 372, 374 (1963); Schechter v. Schechter, 366 Pa. 30, 32-33, 76 A.2d 753, 755 (1950). In Schechter, this Court stated the general rule that "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." 366 Pa. at 33, 76 A.2d at 755. When a compulsory non-suit is entered, lack of evidence to sustain the action must be so
clear that it admits no room for fair and reasonable disagreement. McAuliffe v. Constantine, 228 Pa. Super. 52, 54, 323 A.2d 158, 159 (1974). When an issue of credibility is raised on motion for compulsory non-suit, it is not within the province of the trial judge to determine the believability of the plaintiff's testimony. See Perciavelle v. Smith, 434 Pa. 86, 89-90, 252 A.2d 702, 703 (1969). Thus, a compulsory non-suit may be entered only when 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. Schechter v. Schechter, 366 Pa. at 32-33, 76 A.2d at 755.
Scott's testimony, viewed in its most favorable light, may be summarized as follows:
Scott leased land that he owned in the Oakland section of Pittsburgh to the Civic Center Motel under an arrangement which permitted him to sublease and operate a restaurant in the motel in return for an annual rent of one dollar. During the summer of 1970, Scott learned that his land was to be taken by eminent domain no later than October 1, 1971. In his search for a replacement property, Scott met with Purcell, a real estate developer in the Oakland section who previously had been identified as a man capable of arranging financing for major commercial ventures.
At a meeting in Scott's office in November, 1970, Purcell indicated that he could obtain financing necessary to build a new motel. In return, the parties agreed that he would receive a fifty percent interest in the project. It was further agreed that Scott would manage the motel and would operate his own restaurant there on a one dollar a year lease. The parties then visited the land here in dispute. Scott told Purcell that he had been interested in this property earlier, but that the price then sought by the owner, Mrs. Margaret Ferguson ("Ferguson"), had ...