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ROSE KELLY v. ROBERT J. DORAN AND MARY G. DORAN (03/31/83)

filed: March 31, 1983.

ROSE KELLY, APPELLANT,
v.
ROBERT J. DORAN AND MARY G. DORAN, HIS WIFE AND CHARLES DORKEY, TRADING AS CHARLES E. DORKEY, JR., REALTOR



No. 2783 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Action, Law, of Montgomery County at No. 78-16303.

COUNSEL

Donald B. Pritchard, Jr., Norristown, for appellant.

Lawrence F. Flick, Norristown, for appellees.

Cavanaugh, Rowley and Watkins, JJ.

Author: Cavanaugh

[ 312 Pa. Super. Page 288]

In this case the appellant, Rose Kelly, signed an agreement of sale dated June 4, 1978, under which she was to purchase a house located in Ardmore, Montgomery County, Pennsylvania, for the price of $52,000. Settlement was to be held on or before July 12, 1978. Unfortunately, the appellant was unable to obtain a mortgage and the sale was not completed. The sellers, the appellees herein, Mr. and Mrs. Robert J. Doran, refused to return the appellant's deposit of $5,200 and she commenced an action in assumpsit. A hearing was held before a board of arbitrators and the appellant was awarded $5,746. The assumpsit action was commenced not only against the appellees but also against their real estate agent, Charles E. Dorkey, Jr. The action against Mr. Dorkey was settled after payment of the deposit monies plus interest into court. Mr. and Mrs. Doran appealed to the court of common pleas from the award of arbitrators and the matter was heard before Stanziani, J. and a jury. Following the close of the appellant's case, the court below granted the appellees' motion for compulsory non-suit. The appellant's motions to take off the non-suit and for a new trial were denied and she has appealed to this Court.

The law with reference to the entry of a compulsory non-suit is clear. "In reviewing the entry of a compulsory non-suit, it is well established that the non-moving party is entitled to a favorable view of the evidence and all reasonable inferences arising therefrom. That party is to receive the beneficial resolution of any conflicts which may exist in the evidence and a non-suit should be awarded only in clear cases." Brennan v. Reed, Smith, Shaw & McClay, 304 Pa. Super. 399, 450 A.2d 740, 741, 742 (1982). When a compulsory non-suit is entered the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. See West Mountain Poultry Company v. Gress, 309 Pa. Super. 361, 455 A.2d 651 (1982). Reviewing the evidence in the light most favorable to the appellant the following facts develop. On June

[ 312 Pa. Super. Page 2894]

, 1978, the appellant, Rose Kelly, entered a written agreement of sale with Mr. and Mrs. Robert J. Doran, for the purchase of a house located in Lower Merion Township, Montgomery County, for the price of $52,000. The real estate agent for the appellees was Charles E. Dorkey, Jr. The agreement of sale contained a mortgage contingency clause under which the sale was subject to the appellant obtaining a mortgage in the amount of $46,800. The mortgage contingency clause stated, inter alia:

2. Should Buyer be unable to obtain a written commitment for a mortgage loan on the terms set forth above, Buyer shall advise Seller or his agent, hereafter referred to as Seller in writing by registered or certified mail (return receipt requested) on or before June 30, 1978 of such condition.

3. If Buyer fails to make application for such mortgage loan or to notify Seller of his inability to obtain a written commitment as herein set forth, or fails to execute any application for such mortgage loan at Seller's request, the condition and contingency provided for shall no longer prevail and this Agreement shall be and remain in full force and effect according to its terms in the same manner as if the condition and contingency were not a part hereof.

The agreement of sale provided for the return of the appellant's deposit money in the event a mortgage could not be obtained, subject to the condition in the agreement of sale set forth above.

The appellant made a timely application for a mortgage with the Commonwealth Federal Savings and Loan Association. During the week of June 26, 1978, Mr. Dorkey called the Commonwealth Federal to determine the status of the mortgage application. He was advised that some of the papers needed to complete the application had not been received. This caused him concern because the settlement date of July 12, 1978, was rapidly approaching and the ...


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