No. 320 Harriburg, 1982, Appeal from the Order of September 2, 1982 in the Court of Common Pleas of Adams County, Civil Division, No. 79-S-464
Kenneth Lee Rotz, Gettysburg, for appellants.
Daniel M. Frey, Hanover, for appellees.
Wickersham, Wieand and Cercone, JJ. Wickersham, J., filed a dissenting statement.
[ 330 Pa. Super. Page 218]
This is an appeal from the sustaining of a demurrer to plaintiffs' complaint in trespass. Plaintiffs, appellants herein, are purchasers of real estate and defendants are five real estate salespersons and their employing agency. Appellants sued them for fraud and conspiracy arising out of their purchase of a certain tract of land in Adams County. The parties were before this Court once before when the trial court, pursuant to preliminary objections by appellees, dismissed the amended complaint for having been filed two days late. We reversed and remanded because we found no prejudice to the defendants because of the late filing.*fn1 On remand, the court dismissed the complaint for failure to state a claim upon which relief could be granted.
[ 330 Pa. Super. Page 219]
The question here is whether a cause of action for fraud and civil conspiracy will lie against real estate salespersons and brokers who by withholding a particular piece of information, induced a purchaser of land to buy more land than he originally intended, resulting in an additional real estate commission.
Appellants were interested in purchasing farms numbered 2 and 3 of three contiguous tracts being farms numbered 1, 2, and 3, (hereafter nos. 1, 2 and 3) owned by persons named Carey, who are not parties to this suit. Each appellee is alleged to have represented to appellants that because the vendors did not want to be "stuck" with no. 1, it must be sold with nos. 2 and 3 as a unit. Because appellants were desirous of acquiring nos. 2 and 3, and only because of appellees' representations, appellants reluctantly purchased no. 1 also. Subsequently, appellants learned that a third party, the Lobaughs, had made an offer to purchase no. 1, which offer was pending at the time of the negotiations between the parties regarding nos. 2 and 3. Newman, an appellee, then offered to act as listing agent in selling the unwanted no. 1 to the Lobaughs, who were assisted by appellee Flickinger.*fn2 Appellants demand damages in excess of $10,000, plus punitive and exemplary damages for appellants' losses allegedly incurred by having been induced to purchase no. 1. Appellants' theory of the case is that this transaction was part of a conspiracy by appellees to cheat and defraud appellants out of their property and out of an additional sales commission for the sale of no. 1. Appellants contend that the offer by Lobaughs to purchase no. 1 was deliberately withheld from the owners the Careys, who paid a commission to appellees when appellants purchased all three farms; then, Newman "helped" appellants sell the unwanted farm to a purchaser whom he had "waiting in the
[ 330 Pa. Super. Page 220]
wings." The amended complaint alleges that what Newman told appellants about the terms of sale which the Careys demanded was false, and that Newman knew or should have known that the Careys were interested or were willing to sell the three farms in separate transactions, as long as they were not "stuck" with no. 1.
The facts and all reasonable inferences therefrom have been admitted by appellees' demurrer. Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 139, 320 A.2d 117, 120 (1974). In determining whether they are sufficient to state a cause of action, we are guided by the rule that a demurrer may be sustained only in clear cases, and all doubts must be resolved in favor of the sufficiency of the complaint. Martin v. Little, Brown and Company, 304 Pa. Superior Ct. 424, 428-9, 450 A.2d 984, 987 (1981). A demurrer will be sustained only where a plaintiff's complaint or pleading shows with certainty that upon the facts averred therein, the law will not permit the plaintiff to recover. Matschener v. City of Pittsburgh, 36 Pa. Commw. 69, 387 A.2d 954 (1978).
The lower court dismissed appellants' complaint for failure to state a claim upon which relief may be granted because it reasoned that appellees were pursuing a legitimate business right, and cannot be found to have engaged in fraud, citing Howard v. Flanigan, 320 Pa. 569, 573, 184 A. 34, (1936). (We assume the legitimate business right to which the court referred was the procurement of real estate commissions.) As for the allegation of conspiracy, the court relied on Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979), for the proposition that (1) proof of malice, intent to injure, is essential in proof of civil conspiracy, and that (2) unlawful intent must be without legal justification. In both torts, the court reasoned that because appellees were seeking only a commission incident to their position ...