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ROBERT E.J. CURRAN v. HERMAN P. EBERHARTER (02/06/87)

filed: February 6, 1987.

ROBERT E.J. CURRAN, ESQUIRE, EXECUTOR OF THE ESTATE OF VICTOR S. PANACCION, APPELLANT,
v.
HERMAN P. EBERHARTER, APPELLEE. ROBERT E.J. CURRAN, ESQUIRE, EXECUTOR OF THE ESTATE OF VICTOR S. PANACCION, APPELLEE, V. HERMAN P. EBERHARTER, APPELLANT



Appeal from the Order entered March 17, 1986 in the Court of Common Pleas of Delaware County, Civil No. 80-13724.

COUNSEL

Garland D. Cherry, Sr., Media, for appellant in No. 1086 and for appellee in No. 1112.

Edward C. Mengel, Jr., Philadelphia, for appellant in No. 1112 and for appellee in No. 1086.

Wieand, Olszewski and Cercone, JJ.

Author: Olszewski

[ 364 Pa. Super. Page 67]

This is a cross appeal from the grant of defendant Herman P. Eberharter's ("Eberharter") motion for judgment n.o.v. Finding no error in the trial court's ruling, we affirm the judgment.

Background

Upon review of the grant of a motion for judgment n.o.v., all of the evidence, and all reasonable inferences therefrom, must be viewed in a light most favorable to the verdict winner. Northwest Savings Assoc. v. Distler, 354 Pa. Super. 187, 511 A.2d 824 (1986). Using this standard, the evidence adduced at trial can be summarized as follows.

The cause of action against Eberharter for breach of an escrow agreement dates from January of 1974, when Panaccion entered into an agreement for the sale of his lumber business with Herman F. Yerger ("Yerger"), a nonparty in the present suit.*fn1 A new corporation, Clifco Millwork and Lumber Co. ("Clifco"), was formed and designated in the sales agreement as the actual buyer. After Panaccion signed the agreement of sale, he met with an attorney from the law firm of Stradley, Ronon, Stevens & Young ("Stradley").*fn2 The attorney advised Panaccion that the terms of the agreement of sale were not in Panaccion's best interests. In an effort to improve Panaccion's lot, another attorney from Stradley, defendant Eberharter, was brought

[ 364 Pa. Super. Page 68]

    in to renegotiate an agreement that was more favorable to Panaccion.*fn3

The closing took place on February 18, 1974, at which time Panaccion received a down payment of $100,000.00. The balance of the total sale price of $661,886.40 was to be paid during the course of eleven years. At the time of the closing the parties discussed the terms of an escrow agreement that was required pursuant to the terms of the agreement of sale. It was agreed that Eberharter would prepare the escrow agreement and act as escrow agent. Eberharter subsequently drafted an escrow agreement and forwarded it to the attorney for Clifco and Yerger. That agreement provided, in part, as follows:

ESCROW AGREEMENT

Escrow Agreement dated as of February 18, 1974, by and among Victor S. Panaccion ("Seller"), Clifco Millwork and Lumber, Inc. ("Buyer"), Herman F. Yerger and Edward D. Sullivan, shareholders of Buyer ("Shareholders") and Herman P. Eberharter of Stradley, Ronon, Stevens & Young ("Escrow Agent").

WITNESSETH:

1. Pursuant to an Agreement dated December 27, 1973, as amended, between Buyer and Seller (the "Agreement"), shareholders have delivered to Escrow Agent certificate No. 1 for 800 shares and certificate No. 2 for 200 shares representing all of the 1,000 outstanding common shares of Buyer, for the purpose of securing payment of the purchase price of certain assets purchased by Buyer from Seller pursuant to the Agreement.

2. Escrow Agent shall retain said shares until such time as the obligations of Buyer under the agreement have been satisfied in full and, specifically, shall release said shares only upon written direction to do so signed by Buyer and Seller, or Seller's personal representative if Seller be then deceased.

3. In the event of any dispute as to whether Buyer's obligations under the Agreement have been satisfied, Escrow Agent shall be authorized in his discretion to apply to any court of competent jurisdiction for instructions, and to abide by the decision of such court. The costs of any such action shall be the responsiblity of Buyer, Seller and Shareholders or such of them as the court may direct.

[ 364 Pa. Super. Page 694]

. The Shareholders shall be entitled to vote the escrowed shares registered in their respective names during the ...


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