No. 609 April Term, 1978, Appeal from Order of the Court of Common Pleas of Westmoreland County, Civil Division, at No. 9189 of 1977.
Jon M. Lewis, Greensburg, for appellants.
James R. McDonald, Greensburg, for appellee.
Cercone, President Judge, and Wieand and Hoffman, JJ.*fn*
[ 281 Pa. Super. Page 236]
This is an appeal from the order of the court below sustaining the defendant-appellee's, Rosswog Homes, Inc. (Rosswog), preliminary objections in the nature of a demurrer to appellants' complaint. We will affirm in part and reverse in part.
[ 281 Pa. Super. Page 237]
The record reveals that appellants, Hamill Quinlan Realty Co., Inc. (Hamill Quinlan), and Wm. Penn Real Estate Co., (Wm. Penn), filed a complaint in assumpsit against Rosswog and Frank and Evelyn DeCarlo, husband and wife, seeking payment of a real estate commission allegedly due them. The suit was predicated upon two agreements which were executed in connection with the sale of a lot and the subsequent construction of a home thereon. Examination of the complaint and agreements discloses the following.
On January*fn1 22, 1977, the DeCarlos purchased a lot for the sum of $16,500.00 pursuant to an agreement of sale. The agreement states that Hamill Quinlan is the listing broker and Wm. Penn the selling broker. In pertinent part, the agreement provided that: "It is also understood between all parties that Wm. Penn Real Estate is the selling Broker for the house to be erected on subject property, including extras, and the contractor agrees to pay a commission of five percent (5%)." (Emphasis added.) Rosswog was neither a signatory nor a party to this agreement.
On February 28, 1977, Mr. DeCarlo, as buyer, and Rosswog, as seller, executed an agreement of sale providing for the construction of a house on the lot.*fn2 Wm. Penn is both the listing and selling broker under this agreement. The consideration for this transaction was $43,326.00. Most importantly, the agreement provided that the seller would pay a broker's commission of 5% of the gross selling price. Hamill Quinlan is not named as having any beneficial interest in this contract.
Subsequently, appellants made demand upon both the DeCarlos and Rosswog for, inter alia, the sum of $2,166.30 representing a 5% commission on the $43,326.00 purchase price of the house. When the request was refused, appellants
[ 281 Pa. Super. Page 238]
filed suit and both the DeCarlos and Rosswog responded with preliminary objections to the complaint. In sustaining those objections, the lower court held that the DeCarlos could not be liable because under the terms of the two agreements they were clearly not obliged to pay any commissions; and, ...