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VINTAGE HOMES v. GLORIA B. LEVIN AND DANIEL PROMISLO AND ALAN WEINSTEIN (02/22/89)

decided: February 22, 1989.

VINTAGE HOMES, INC., APPELLANT
v.
GLORIA B. LEVIN AND DANIEL PROMISLO AND ALAN WEINSTEIN, EXECUTORS OF THE ESTATE OF LEONARD GORDON, AND AS CO-PARTNERS, T/A TROUT LAKE ASSOCIATES. VINTAGE HOMES, INC. V. GLORIA B. LEVIN AND DANIEL PROMISLO AND ALAN WEINSTEIN, EXECUTORS OF THE ESTATE OF LEONARD GORDON, AND AS CO-PARTNERS, T/A TROUT LAKE ASSOCIATES. APPEAL OF GLORIA B. LEVIN. VINTAGE HOMES, INC. V. GLORIA B. LEVIN AND DANIEL PROMISLO AND ALAN WEINSTEIN, EXECUTORS OF THE ESTATE OF LEONARD GORDON, AND AS CO-PARTNERS, T/A TROUT LAKE ASSOCIATES. APPEAL OF DANIEL PROMISLO AND ALAN WEINSTEIN, EXECUTORS OF THE ESTATE OF LEONARD GORDON, AND AS CO-PARTNERS T/A TROUT LAKE ASSOCIATES



Appeal from the Order entered April 20, 1988, Court of Common Pleas, Monroe County, Civil Division at No. 1784 of 1987.

COUNSEL

John B. Dunn, Stroudsburg, for appellant (at 1666) and for Vintage, appellee (at 1682 and 2366).

Joan R. Sheak, Allentown, for appellant (at 1682) and for Levin, appellee (at 1666 and 2366).

Martha Johnston, Philadelphia, for appellant (at 2366) and for Promislo, appellees (at 1666 and 1682).

Beck, Johnson and Melinson, JJ.

Author: Johnson

[ 382 Pa. Super. Page 149]

Appellant Vintage Homes, Inc., (Vintage) and appellees Gloria B. Levin, Daniel Promislo and Alan Weinstein trading as a partnership, Trout Lake Associates (Trout Lake), cross-appeal from the order that grants Trout Lake's motion for summary judgment and that sustains Vintage's demurrer to Trout Lake's counterclaim. We affirm the grant of summary judgment but reverse the sustainment of the demurrer.

Vintage and Trout Lake entered into negotiations for the sale of a parcel of land in Jackson Township, Monroe County, Pennsylvania owned by Trout Lake. An agreement

[ 382 Pa. Super. Page 150]

    of sale was prepared, which was signed by Vintage and by a Coldwell-Banker agent, Phyllis Rubin, but it was not signed by any of the sellers. Phyllis Rubin was never authorized to sign an agreement on the sellers' behalf.

Vintage began this action on September 10, 1987 by filing a Writ of Summons against Trout Lake and a lis pendens against the property in question. Trout Lake petitioned the court to strike the lis pendens on September 29, 1987, which, after hearing, the court did on November 30, 1987. In the meantime, on October 30, 1987, Vintage filed a complaint demanding specific performance of the alleged agreement of sale between themselves and Trout Lake, attached to which was the alleged agreement. The Trout Lake partners responded to the complaint individually. Promislo and Weinstein filed an Answer, New Matter and Counterclaim on November 24, 1987 and Levin filed a similar pleading on December 4, 1987. Both pleadings alleged as new matter the non-existence of an agreement of sale and the lack of authorization to any individual to act as agent for the Trout Lake partners in a transaction for the sale of the property. The Trout Lake partners also counter-claimed, alleging that the lis pendens listing caused them to lose a sale of the property to a third party.

Vintage failed to reply, and on January 5, 1988 Levin entered Rule 237.1 notice of her intention to take a default judgment. On January 14, 1988 Vintage filed preliminary objections to the counterclaims, alleging that they stated no cause of action. Vintage, however, took no action on their preliminary objections, and therefore Levin filed a motion for summary judgment on February 12, 1988. Following Vintage's petition to defer consideration of the motion for summary judgment and Levin's answer to this petition, both the preliminary objections and the motion for summary judgment were argued.

On April 20, 1988 The Honorable Peter J. O'Brien granted Levin's motion for summary judgment. The trial court stated that there was no writing signed by the sellers and thus ...


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