Appeal from the Order of the Court of Common Pleas, Civil Division, of York County at No. 82-S-1726
Samuel K. Gates, York, for appellant.
John M. Crabbs, Hanover, for appellee.
Wickersham, Watkins and Hester, JJ.
[ 340 Pa. Super. Page 437]
This is an appeal from an order of the Court of Common Pleas of York County granting summary judgment in favor of appellee.
Appellant, Edward D. Lookenbill, and appellee, Mary Lee Garrett, a/k/a Mary Lee Kuhn, are the sole litigants in a real estate partnership dispute. At all times relevant to this appeal, appellant was a licensed real estate agent or salesman and appellee was a licensed real estate broker. Appellant obtained his license in February or March of 1980 and began working as an agent for appellee. On June 29, 1981, appellant and appellee entered into a written partnership agreement, for the express purpose of "operating a real estate practice." Appellant paid $12,500.00 to appellee for a one-half interest in this partnership, $2,500.00 of which was to provide the initial capitalization of the partnership. A fictitious name registration listing the partnership as M & E Hanover Realty was filed. At some point thereafter, appellant was advised that a partnership consisting
[ 340 Pa. Super. Page 438]
of a broker and an agent is illegal and unenforceable under the Real Estate Licensing and Registration Act and the rules and regulations of the Real Estate Commission. On April 30, 1982, appellant filed suit against appellee, alleging that appellee knew or should have known that their partnership was illegal and unenforceable and that the parties could lose their licenses, that appellee acted fraudulently and intentionally to obtain money for the illegal partnership from appellant, and that as a result appellant lost the $12,500.00 investment plus interest. Following various pre-trial filings and depositions of both parties, appellee moved for summary judgment on the issue of the legality of the contract. On September 26, 1983, the trial court sustained appellee's motion. Appellant filed this timely appeal. The State Real Estate Commission has filed an amicus brief in support of appellant's position.
The question presented to us is whether an agreement to form a partnership for the purpose of operating a real estate practice is an illegal agreement when one partner is a licensed real estate broker and the other partner is a licensed real estate agent. In other words, we must decide whether the Real Estate Commission's regulation that all members of a partnership seeking a broker's license must be duly licensed brokers themselves is inconsistent with the Real Estate Licensing and Registration Act. The trial court found the regulation to be inconsistent with the Act, which resulted in its decision that the parties' agreement was legal.
[ 340 Pa. Super. Page 439]
Under Pennsylvania Rule of Civil Procedure No. 1035(b), a party shall be entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Skowronski v. Bailey, 330 Pa. Super. 83, 478 A.2d 1362 (1984); Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 476 A.2d 928 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Richland Page 439} Mall Corp. v. Kasco Construction Co., Inc., 337 Pa. Super. 204, 486 A.2d 978 (1984); Skowronski v. Bailey, supra.
'In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party's pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.'
Curry v. Estate of Thompson, 332 Pa. Super. 364, 368, 481 A.2d 658, 659 (1984), quoting Rybas v. Wapner, 311 Pa. Super. 50, , 457 A.2d 108,  (1983).
The Real Estate Licensing and Registration Act, 63 P.S. § 455.101-.902.*fn1 (hereinafter "the 1980 Act") ...