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filed: February 22, 1988.


Appeal from the Order entered in the Court of Common Pleas of Monroe County, Civil Division, No. 1513 of 1981.


Steven E. Krawitz, E. Stroudsburg, for appellant.

Eugene J. Maginnis, Philadelphia, for appellee.

Cirillo, President Judge, and McEwen and Tamilia, JJ.

Author: Tamilia

[ 371 Pa. Super. Page 371]

Appellant, Margaret H. Storm, commenced this action against her former attorney, W. Brian Golden, appellee, by writ of summons on June 3, 1981 followed by a complaint in trespass and assumpsit filed March 31, 1982. In her complaint, appellant claims damages for professional negligence and breach of contract arising from appellee's representation in a real estate transaction. After procedural delays, the case came to trial before a jury on February 7, 1986. At the close of appellant's case-in-chief, appellee moved for a compulsory non-suit (N.T. 2/7/87, pp. 122-23), which was granted (N.T. 2/7/87, p. 143). Appellant filed a timely motion to remove the non-suit and for new trial, which was denied by Order of January 16, 1987. This timely appeal followed.

The trial court found that in June, 1979, appellant negotiated an oral agreement with Albert Cole to sell a residential home for $48,000. She then retained appellee to draft an installment sales agreement containing the terms of the oral agreement reached by appellant and Cole prior to contacting appellee. Appellee drafted the installment sales agreement which provided appellant was to receive $131 per month from July 1, 1979 until closing on November 1, 1979, and thereafter, $500 per month until the entire contract price of $48,500 plus interest had been paid over the course of a ten-year term, with a clause expressly prohibiting prepayment of any of the installments until July of 1982. The installment sales agreement was executed by appellant and Cole at appellee's office on June 29, 1979. Prior to closing, appellant delivered to appellee a handwritten affidavit, signed by her on July 5, 1979 before a notary public, attesting that Cole had prepaid "all monthly payments in the entire sum of $38,500" (Defendant's Exhibit No. 1, 2/7/86). In addition to the real estate transaction, appellant gave Cole between $3,500 and $5,500 as a personal loan.

[ 371 Pa. Super. Page 372]

Sometime in September, 1979, Cole executed a sales agreement prepared by a real estate corporation to sell the house to Wayne and Patricia Smith. Patricia Smith was appellee's legal secretary. Appellant also executed the sales agreement on October 4, 1979, and on October 18, 1979 appellant signed the deed at appellee's office in advance of closing because at that time she felt she would be unable to attend the closing. The closing took place on October 30, 1979 with the Smiths, Cole, appellant, appellee and various bank representatives in attendance. At the closing, appellant received a $5,500 payment on the personal loan from Cole. A proceeds check in the amount of $24,542.76 was made payable to appellant and Cole. Both appellant and Cole endorsed this check and appellant delivered it to Cole; he has not been seen nor heard from since. A second check in the amount of $10,107.12 was forwarded to a savings and loan to satisfy appellant's mortgage. Appellant now blames appellee for what she perceives as his failure to ensure that she received the proceeds of the sale. The trial court specifically found that appellant's "irrational trust in Albert Cole was founded in Christian faith and fueled by his representation of faith and Biblical interest to such a degree that under his influence 'she couldn't think for herself'" (Slip Op., Vicar, J., 1/16/87, p. 3).

Appellant claims it was error to consider and enter a compulsory non-suit in this case because appellee had already entered evidence before his motion for a non-suit. At trial, appellant testified on her own behalf concerning appellee's conduct and representation in the real estate transaction. On cross-examination, appellee admitted into evidence three defense exhibits and examined appellant as to matters concerning the exhibits. Defendant's Exhibit No. 1 is a handwritten affidavit written and signed by appellant which states she waived her rights in the installment sales agreement and states she was prepaid by Cole in the amount of $38,500 (N.T. 2/7/86, p. 42). Defendant's Exhibit No. 2 is a treasurer's check in the amount of $24,542.76 with the bank as payor and the appellant and Cole as payees, representing

[ 371 Pa. Super. Page 373]

    the proceeds of the house sale to the Smiths (N.T. 2/7/86, p. 50). Lastly, defendant's Exhibit No. 3 is a check in the amount of $10,107.12 made payable to a savings and loan in order to satisfy appellant's mortgage. All of these exhibits were intended to show that appellant received the proceeds due her from the transactions involved (N.T. 2/7/86, p. 52).

At the end of appellant's case, appellee moved for a compulsory non-suit; the parties argued the motion, which was granted at trial (N.T. 2/7/87, p. 143).

A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiff's evidence. Francioni v. Gibsonia Truck Corporation, 472 Pa. 362, 372 A.2d 736 (1977). A compulsory non-suit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in the evidence in favor of the plaintiff. Coatesville ...

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