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EDWARD N. KURLAND v. LEONARD STOLKER (12/02/87)

decided: December 2, 1987.

EDWARD N. KURLAND, ESQ., EXECUTOR OF THE ESTATE OF ALLAN COHEN, DECEASED, AND BERNADINE COHEN, APPELLEES,
v.
LEONARD STOLKER, INDIVIDUALLY AND TRADING AS LOMBARD MEWS CO., A PARTNERSHIP, AND PHILICENT CORPORATION, APPELLANTS



Appeal from the Order of the Superior Court Entered on March 29, 1985, at No. 1457 Philadelphia, 1984, Affirming the Order of the Court of Common Pleas of Philadelphia County, Civil Action Law, Entered on May 9, 1984, at No. 4822, August 1978. 344 Pa. Superior Ct. 632, 495 A.2d 619 (1985).

COUNSEL

Dennis H. Eisman, Philadelphia, for appellants.

F. Emmett Fitzpatrick, Philadelphia, for appellees.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos,*fn* JJ. Hutchinson, Former Justice, did not participate in the decision of this case. Larsen and Zappala, JJ., concur in the result.

Author: Papadakos

[ 516 Pa. Page 589]

Opinion OF THE COURT

This is the appeal of Leonard Stolker, individually and trading as Lombard Mews Co., a Partnership, and Philicent Corporation (Appellants) from the Per Curiam Order and Memorandum Opinion of the Superior Court, 344 Pa. Super. 632, 495 A.2d 619, affirming a final decree entered by the Court of Common Pleas of Philadelphia County, directing Appellants to convey real estate to Edward N. Kurland, Esq., Executor of the Estate of Allen Cohen, Deceased, and Bernadine Cohen (Appellees), and awarding Appellees damages in the amount of $33,350.00. For the following reasons, we reverse the order of the Superior Court and dismiss Appellees' complaint.

[ 516 Pa. Page 590]

The interesting factual background to this matter can be briefly summarized as follows:

Sometime prior to 1970, Allen Cohen, professing to be the right-hand man of Jimmy Hoffa, met Leonard Stolker, a building contractor, through a mutual acquaintance. Cohen understood that Stolker wanted to meet someone who could help smooth out the feathers of union officials which Stolker had ruffled because he was hiring non-union workers on his construction jobs. Stolker, on the other hand, claims that he wanted to hire a security guard/night watchman and/or occasional bill collector, and in return for performing these services, this person would be furnished a unit in the rental properties he was building as his residence. The mutual acquaintance suggested Cohen to Stolker and arranged a meeting between the two, after which some sort of understanding was reached which is the basis of the instant action.

The record "clearly"*fn1 shows that from 1970 to 1973 Cohen resided in Unit 21 of the Lombard Mews, owned by Stolker; that from 1973 to 1976 Cohen lived in Unit 26; and from 1976 onwards that he resided in Unit 1 of the same development until sometime in July of 1978, when Cohen was notified by Stolker that he was being evicted.

Pursuant to that notification, this equity action was instituted by Cohen seeking specific performance of an alleged oral contract for the purchase of realty. Cohen died prior to trial, and his deposition, together with the live testimony of Mrs. Cohen and Mr. and Mrs. Stolker, was received by the Chancellor, along with a few others, in an attempt to establish whether an enforceable oral contract for the sale of land existed between Cohen and Stolker. The Chancellor, the former Judge of the Court of Common Pleas of Philadelphia, Bernard Snyder, ruled in favor of Mrs. Cohen and directed that Stolker convey Unit 1 to her and pay her an additional $33,350.00 in damages and entered a final decree to that effect on May 9, 1984. Stolker took an appeal from that decree to the Superior Court which, as

[ 516 Pa. Page 591]

    previously noted, affirmed the Chancellor by per curiam order.

Stolker then filed a petition for allowance of appeal to us arguing: 1) that the Chancellor's adjudication flies directly in the face of the statute of frauds and perjuries;*fn2 and 2) that Mrs. Stolker's testimony at trial, being in opposition to that of Mr. Stolker's, was prohibited by virtue of our spousal immunity statute, which makes a wife incompetent to testify against her husband in any civil matter.*fn3

Since the maintenance of the statute of frauds, as a rule of property, is a matter of great public concern (see, Rader v. Keiper, 285 Pa. 579, 132 A. 824 (1926); McKowen v. McDonald, 43 Pa. 441 at ...


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