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HERBERT LEE DWYER v. SAMUEL ROTHMAN (06/26/81)

filed: June 26, 1981.

HERBERT LEE DWYER, APPELLANT,
v.
SAMUEL ROTHMAN, AN INDIVIDUAL AND L. ROTHMAN, INC., A CORPORATION



No. 55 PITTSBURGH, 1980, Appeal from Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 79-30142.

COUNSEL

Frank E. Little, Pittsburgh, for appellant.

Myron B. Markel, Pittsburgh, for appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 288 Pa. Super. Page 258]

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer and dismissing an amended complaint without leave to amend. The action is against an individual and a corporation; both filed preliminary objections. The lower court dismissed the corporation's objections, and the propriety of that order is not before us. The lower court explained its order sustaining the individual's objections by saying that the complaint and amended complaint "reveal that he [the individual] was acting in a representative capacity . . . ." slip op. at 1. We have concluded that this was error, for in our opinion one count of the amended complaint may fairly be read as alleging that while the individual purported to act on his own account, he was in fact acting for an undisclosed principal, the corporation, and so was a party to the contract. We shall therefore reverse although not entirely, for in its other counts the amended complaint does fail to state a cause of action against the individual.

On November 13, 1979, Herbert Lee Dwyer, the appellant, filed a complaint against Samuel Rothman, the appellee, and L. Rothman, Inc., a corporation. The complaint is in four counts. The first count is in equity and seeks specific performance of an agreement to enter into a five year lease with a right of first refusal to purchase the property in question, which is known as Archie's Car Wash. The second count is in assumpsit and seeks damages for breach of the agreement to enter into the lease. The third count is also in assumpsit and seeks damages for "misrepresent[ing] the ownership" of the property. The fourth count is in trespass and seeks both compensatory and punitive damages for intentional misrepresentation. On December 7 appellant filed an amended complaint, alleging, among other things,

[ 288 Pa. Super. Page 259]

    that appellee was acting as agent for L. Rothman, Inc., and within the scope of his authority. On December 24 appellee filed preliminary objections and on January 9, 1980, the lower court sustained the objections.

It will be convenient to consider the first and fourth counts of the amended complaint first, for they may be disposed of summarily.

The lower court correctly sustained appellee's objections to the first count, seeking specific performance. Appellant alleged that "[a]t all relevant times [the corporation] was the record owner" of the property in question. Amended complaint, paragraph 4. He did not allege any facts that could conceivably enable him to obtain specific performance from appellee of an agreement concerning property owned only by the corporation.

The lower court also correctly sustained appellee's objections to the fourth count, for intentional misrepresentation.*fn1 Pa.R.Civ.P. 1019(b) provides in part that "[a]verments of fraud or mistake shall be averred with particularity." In Ski Roundtop, Inc. v. Hall, 265 Pa. Super. 266, 276, 401 A.2d 1203, 1208 (1979), we said:

Averments of fraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation nor offered simply to harass the opposing party and to delay the pleader's own obligations. For this reason our rules require that fraud in either a complaint or reply must be "averred with particularity." Pa.R.C.P. 1019(b). Admittedly the line between pleading facts and evidence is not always bright; therefore, we frequently condone the inclusion of statements, which except for this ...


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