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BRADFORD MERICLE v. JOHN G. WOLF AND MARIANNE WOLF (05/04/89)

submitted: May 4, 1989.

BRADFORD MERICLE, APPELLANT,
v.
JOHN G. WOLF AND MARIANNE WOLF, HIS WIFE AND SACRED HEART HOSPITAL



Appeal from the Order entered in the Court of Common Pleas of Delaware County, Civil Division, NO. 87-16733.

COUNSEL

John J. Robinson, Upper Darby, for appellant.

Gary C. Bender, Media, for Wolf, appellee.

Murray S. Eckell, Media, for Sacred Heart, appellee.

Cavanaugh, Tamilia and Kelly, JJ. Kelly, J., dissents.

Author: Tamilia

[ 386 Pa. Super. Page 83]

Appellant Bradford Mercile appeals partial summary judgment granted to appellees John G. Wolf and his wife Marianne Wolf and Sacred Heart Hospital (Sacred Heart) by an Order entered September 12, 1988 which declared the transfer of certain real estate by gift from the Wolfs to Sacred Heart did not trigger appellant's right of first refusal.

Appellant leased space for his store from the Wolfs on the first floor of a building which they owned. On December 3, 1987, appellant brought a complaint alleging that his lease with the Wolfs contained a provision that they would give him first refusal to purchase the property if the property was to be sold, and that on October 26, 1987 Wolfs had transferred the real estate to Sacred Heart without affording him first refusal, despite his request to exercise that right. His complaint sought to set aside the transfer, money damages, and other relief. The Wolfs filed an

[ 386 Pa. Super. Page 84]

    answer alleging the transfer was by way of gift and not by sale, so that the right of first refusal was not triggered. The appellees' motion for partial summary judgment was granted and appellant appealed on October 11, 1988.

On appeal appellant contends the pleadings and an affidavit filed by him show there are numerous unanswered questions, particularly attempts by the Wolfs to sell the real estate to other parties prior to the gift to Sacred Heart. Also, he argues that even if the transfer to Sacred Heart was a gift, his right of first refusal was still violated by the transfer because the clause in the lease as to first refusal was vague and ambiguous and the surrounding circumstances must be considered. He urges the purpose of the right of first refusal clause was the protection and continuation of his business, and the transfer of the property, whether by sale or gift, defeated that purpose.

Our standard of review of cases involving the grant of summary judgment was recently outlined in Ackler v. Raymark Industries, Inc., 380 Pa. Super. 183, 551 A.2d 291 (1988).

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admission on file, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Summary judgment may be entered only in cases that are clear and free from doubt. In addition, we must examine the record in the light most favorable to the non-moving party and accept as true all well pleaded facts in the non-moving party's pleadings, and give the non-mover the benefit of all reasonable inferences to be drawn therefrom.

A trial court's grant of summary judgment will be overturned only if there has been an error of law or ...


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