Blumer v. Dorfman

• Decision Date: 20 March 1972
• Citation: 447 Pa. 131,289 A.2d 463
• Parties: Anna BLUMER, Appellant, v. Martin DORFMAN.
• Court: Pennsylvania Supreme Court

289 A.2d 463

447 Pa. 131

Anna BLUMER, Appellant, v. Martin DORFMAN.

Supreme Court of Pennsylvania.

March 20, 1972.

[Copyrighted Material Omitted]

Joyce Ullman, Philadelphia, for appellant.

Samuel Nissenbaum, Philadelphia, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

POMEROY Justice.

On May 8 1962 appellant Anna Blumer commenced an action in assumpsit against appellee Martin Dorfman. The complaint alleged facts which may be summarized as follows. In 1958 appellant was the owner of certain premises located at 1900 North 32nd Street in Philadelphia which she leased to a tenant. Appellee Dorfman was a real estate broker in the area. In Suptember, 1958, while the premises were under lease, appellant and appellee entered into an oral agreement whereby the latter promised that in return for appellant's terminating the tenancy of the then occupant of the premises and entering into a new lease with a tenant to be obtained by him, Dorfman, he would guarantee the performance of the new lease if the tenant obtained by him should default. Pursuant to this agreement, appellant released her old tenant and accepted one procured by appellee. The new tenant defaulted in December, 1958. In April of 1959, the default still continuing, appellant made demand on the appellee to pay the rent, which appellee refused to do. Instead, the parties entered into a new oral agreement whereby the appellant released the new tenant for the balance of the term and rented the premises to the appellee personally for 10 years at a rental of $250 per month, the appellee further agreeing to pay excess water bills and repair costs. Pursuant to this arrangement, Dorfman occupied the premises from April, 1959 to January, 1962; he paid the rent until March, 1961, but not thereafter; at the end of January, 1962 appellee abandoned the premises.

Appellant's complaint demanded damages totalling $5,925.04, comprised of the following items: (1) the rent due by the new tenant for the period December, 1958 to April, 1959; (2) the rent due by Dorfman himself for the period March, 1961 through January, 1962; and (3) the water and repair bills for the time Dorfman occupied the premises.

Appellee filed an answer to the complaint, admitting that as a real estate agent and for a commission he had obtained a tenant for the plaintiff in September, 1958, but denying having made any personal commitments by way of guaranteeing the rent. All other averments of the complaint were denied. Under the heading of new matter, appellee asserted the Statute of Frauds as a defense to both alleged oral agreements. The provisions relied upon were those relating to promises to answer exceed three years in duration. ^[2] The answer exceed three years in duration. ^[2] The answer was not endorsed with a notice to plead to the new matter, and appellant filed no reply.

Thereafter ^[3] appellee moved for judgment on the pleadings, alleging that the complaint on its face disclosed violations of the Statute of Frauds and that by failing to reply to the new matter, plaintiff had admitted the applicability of the relevant provisions of the statute. The trial court granted this motion and dismissed the complaint. This appeal followed.

Because of the inherent differences, hereafter considered, between statute of fraud provisions which are waivable and those which are not, we must consider separately the two types here involved. If the particular statute of frauds asserted as an affirmative defense is incapable of being waived by the defending party to a claim, judgment on the pleadings will be allowed (provided, of course, no factual issue is raised); if it is capable of being waived, the defense that the statute was violated will not support a judgment on the pleadings.

The case at bar involved, as noted above, two separate parts or provisions of that cluster of statutes which we collectively refer to as the Statute of Frauds: that which requires a lease which will exceed three years to be in writing in order to be enforceable, and that which requires a promise to answer for the debt of another to be in writing in order to be enforceable. The statute relating to leases being waivable, it improperly served as the basis for judgment below; that relating to suretyship agreements being non-waivable, judgment on the pleadings was permissible, but we conclude that sufficient facts were pleaded in appellant's complaint to take the promise to guarantee the tenant's rent outside the statute. It follows that with respect to both provisions the court below erred in granting the motion and that the judgment must be reversed.

1. The claim based on suretyship.

The cloud of confusion which for many years had enveloped the subject of when the defense of the Statute of Frauds was waivable and when not was lifted in Brown v. Hahn, 419 Pa. 42, 49, 213 A.2d 342, 345 (1965) wherein Mr. Justice (now Chief Justice) Jones, speaking for the Court, concisely summarized the distinction between the two: 'Bearing in mind that the provisions of the several Statutes of Frauds differ in their language and that provisions of some Statutes of Frauds make unenforceable or void oral agreements in violation thereof while provisions of other Statutes of Frauds constitute declarations of public policy, the appropriate rule is that, if the particular statute operates to bar or destroy the plaintiff's right of action, i.e., is a limitation on the power of the judiciary to afford a remedy, such statute constitutes a ground for demurrer and may be raised by preliminary objections: on the other hand, if the statute merely gives the defendant a waivable defense, such defense must be raised under Rule 1030 (New Matter) and not under Rule 1017(b) (Preliminary Objections).' ^[4]

When previously confronted with the statute convering promises to answer for the debt or default of another, this Court held that the language in the Act of 1855 (see footnote 1) that 'no action shall be brought' indicated a non-waivable provision of the Statute of Frauds. Leonard v. Martling, 378 Pa. 339, 106 A.2d 585 (1954). Failure by the defendant in the Leonard case to raise this defense either by preliminary objection or by answer did not prevent his requesting and obtaining judgment on the pleadings. If, as decided in Leonard, a non-waivable Statute of Frauds defense can support a judgment on the pleadings where the defense is not raised until after the close of the pleadings (in the motion for judgment), it would be anomolous indeed not to allow the defense to prevail where the defendant raises it in his answer by way of new matter.

Despite the apropriateness of the procedure followed by appellee as to the suretyship claim, the trial court improperly granted his requested relief. Judgment on the pleadings should be allowed only where a case is free from doubt and trial would be a fruitless exercise. As with a demurrer, all the opposing party's well-pleaded facts must be accepted as true. Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1968); Bata v. Central Penna. Nat. Bank of Phila., 423 Pa. 373, 378, 224 A.2d 174, 178 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 443 (1967). The facts pleaded in the complaint are that in consideration of appellant's paying a commission to appellee, a realtor, and releasing appellant's then tenant, appellee procured a new tenant and promised to pay the rent should the new occupant default. It seems apparent to us that this arrangement, involving as it did a distinct benefit to the promisee (appellee) and detriment to the promisee (appellant) is at least consistent with an original and primary undertaking between those parties rather than merely a collateral suretyship promise within the statute. The situation presented by this pleading comes, we think, directly within the holding of the Superior Court in Goodling v. Simon, 54 Pa.Super. 125, 127 (1913), which this court adopted in Eastern Wood Products Co. v. Metz, 370 Pa. 636, 641, 89 A.2d 327, 330 (1952): 'Whenever the main purpose and object of the promisor, is, not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damages to the other contracting party, his promise is not within the statute, although it may be in form a provision to pay the debt of another, although the result of it may incidentally have the effect of extinguishing that liability, is the rule laid down in many cases, and has been consistently follwed by this court.' It is possible, of course, that evidence adduced at trial might show the actual state of affairs to be quite different, and one to which the Statute of Frauds defense would be applicable; all we now hold is that the defense should not have been made the basis for a judgment on the pleadings.

2. The claim based on lease.

Defendant's judgment on the pleadings in the second count is based upon the Statute of Frauds relating to leases in excess of three years (68 P.S. 250.202), Supra, note 2. In Brown v. Hahn, 419 Pa. 42, 213 A.2d 342, Supra, we held that the statute requiring a writing for land contracts (Act of March, 21, 1772, 33 P.S. § 1) was waivable, hence raisable only in new matter, and not by preliminary objection. See also Royal Oil & Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 282 A.2d 384 (1971); Goldman v. McShain, 432 Pa. 61, 247 A.2d 455, Supra; Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444 (1968). The provisions relative to leases being a direct derivative of the above statute, it too is waivable and may be introduced only as an affirmative defense.

In Goldman v McShain, Supra, we held that a defendant may not rely on the affirmative defense of the...