Appeal from the order entered docketed March 30, 1989 in the Court of Common Pleas of Chester County, Civil No. 87-0826.
Richard C. Biedrzycki, Philadelphia, for appellant.
Anthony T. Vetrano, Paoli, for appellee.
Tamilia, Kelly and Cercone, JJ.
[ 388 Pa. Super. Page 515]
In this case we are called upon to determine whether a trial court abused its discretion in denying a motion to amend pursuant to Pa.R.C.P. 1033 in order to cure answers
[ 388 Pa. Super. Page 516]
deemed to have the effect of admissions due to their inadequacy under Pa.R.C.P. 1029(b), and in granting judgment on the pleadings where the request to amend was promptly made and the amendment would have presented a viable defense sufficient to withstand judgment on the pleadings.
The relevant facts and procedural history are as follows. Appellee, Samuel J. Pilotti, discovered that appellant, Mobil Oil Corporation, had decided to sell the real estate upon which Charles D. Fretz was operating a gasoline station under a franchise-lease agreement that was about to expire.
Mobil Oil and Pilotti entered into a brokerage agreement whereby Pilotti was to receive a six percent commission if he could find a buyer for the premises. The agreement was specifically conditioned upon Pilotti closing the sale. The agreement also specifically acknowledged Mobil Oil's rights were subject to lessee Fretz' right of first refusal under the Petroleum Marketing Practices Act, 15 U.S.C.A. §§ 2801 et seq., and that if Fretz chose to exercise this right, Pilotti would not receive a commission.
Pilotti found that Henry Katra and Mark Szilagyi, the owners of the property adjacent to the gasoline station, were interested in purchasing the station when Fretz's lease expired, and Pilotti pursued that interest in hopes of a commission. On December 24, 1985, an agreement of sale was drawn up between Mobil Oil and Katra and Szilagyi. The price for the property was to be two hundred thousand dollars, and the agreement was to become effective when Fretz's lease expired.
However, in accordance with the Petroleum Marketing Act, the agreement was subject to Fretz's right of first refusal. On April 3, 1986, Mobil Oil informed Fretz of the offer by Katra and Szilagyi to purchase the property for two hundred thousand dollars. On July 21, 1986, Mobil Oil notified Pilotti by letter that Fretz had chosen to exercise his option to purchase the property, and the names of Katra and Szilagyi would not appear as grantees on the deed. In ...