Concorde Investments, Inc. v. Gallagher

• Decision Date: 16 August 1985
• Citation: 497 A.2d 637,345 Pa.Super. 49
• Parties: CONCORDE INVESTMENTS, INC. c/o Faust and Rabbach v. Arthur A. GALLAGHER and Aurea A. Gallagher, h/w, Appellants. Arthur A. GALLAGHER and Aurea A. Gallagher, h/w, Appellants, v. CONCORDE INVESTMENTS, INC. and David Ross. 02869 PHL 1984 02870 PHL 1984
• Court: Pennsylvania Superior Court

Page 637

497 A.2d 637

345 Pa.Super. 49

CONCORDE INVESTMENTS, INC. c/o Faust and Rabbach v. Arthur A. GALLAGHER and Aurea A. Gallagher, h/w, Appellants.

Arthur A. GALLAGHER and Aurea A. Gallagher, h/w, Appellants, v. CONCORDE INVESTMENTS, INC. and David Ross.

02869 PHL 1984

02870 PHL 1984

Superior Court of Pennsylvania.

Submitted April 2, 1985.

Filed Aug. 16, 1985.

Michael P. Rowan, West Chester, for appellants.

Stephen T. Martin, Asst. Public Defender, Media, for appellees.

Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from the September 28, 1984 order below (1) dismissing appellants' (the Gallaghers) exceptions to the August 23, 1984 verdict, (2) entering judgment in favor of appellee (Concorde Investments, Inc.) and against appellants in the amount of $33,750.00, (3) vacating a stay of writ of possession filed by appellee, and (4) ordering appellants to vacate the premises situated at 940 Mill Road, Radnor Township, Pennsylvania, and entitling appellee to possession thereof. For the reasons discussed herein, we affirm.

On June 30, 1983, appellants filed a complaint in equity against appellee seeking specific performance of an alleged oral agreement for the sale of the above-mentioned property and, alternatively, seeking to recover the sum of $29,000 for alleged improvements made to the subject premises. Appellee filed an answer and new matter on October 6, 1983, denying that any agreement was made for the sale of realty to appellants and that appellants' claim was barred by the Statute of Frauds. Appellee also filed a counterclaim for rent allegedly due for appellants' use and occupation of the property. In addition, appellee commenced a separate action in ejectment against appellants seeking to recover possession of the subject premises together with the rents allegedly due.

Appellants' action in equity and appellee's action in ejectment were consolidated for the purposes of trial. Following a May 21, 1984 non-jury trial, the lower court made the following findings of fact:

1. Arthur A. Gallagher and Aurea A. Gallagher, husband and wife, entered into a contract to purchase the property at 940 Mill Road, Radnor Township, Delaware County, Pennsylvania.

2. The Gallaghers were unable to come up with the funds to purchase the property, and, in lieu of default, approached Omar Tigrak to lend them the balance of the purchase price.

3. Omar Tigrak approached Concorde Investments, Inc., on behalf of Gallagher to arrange financing for the property.

4. Concorde Investments, Inc., agreed to accept an assignment of the contract from Gallagher, purchase the property themselves, and lease it back to Gallagher, with an option to purchase.

5. Gallagher executed a written assignment of the contract to Concorde Investments, Inc., on April 23, 1982.

6. On April 23, 1982, Concorde Investments, Inc., purchased the property at 940 Mill Road.

7. Gallagher took possession of the property a few days later that same month.

8. In June of 1982, Concorde prepared a written lease agreement with an option to purchase the property, as previously agreed upon, and delivered it to Gallagher's attorney in Media, Pennsylvania.

9. The lease called for annual rent of $15,000.00 a year, with Gallagher being responsible for maintenance and taxes.

10. Gallagher never executed the written lease despite repeated requests to do so.

11. Arthur Gallagher never procured any coal nor performed any work for Cedac Trading Limited.

12. Neither Omar Tigrak nor Cedak [sic] Trading Ltd. ever agreed to pay Arthur Gallagher any money if Cedac Trading Ltd. did business with United Coal.

13. United Coal never provided coal for Cedac Trading Limited.

14. Concorde made repeated demands on Gallagher to pay rent for the property at 940 Mill Road.

15. Gallagher has occupied the premises at 940 Mill Road, Radnor Township, Delaware County, Pennsylvania, continuously for more than 2 years, and will not vacate despite demands of Concorde.

16. The Gallaghers have never made a single payment to Concorde on account of rent, taxes, or the purchase of the mansion at 940 Mill Road.

17. The Gallaghers never informed Concorde that they were making or intending to make any improvements to the Property.

18. The Gallaghers did not produce any receipts for any alleged improvements made to the property, for which they claim $30,000.00, despite repeated requests to do so.

19. There has never been a contract for the sale of the property between the parties.

(Lower Court Opinion, entitled "TRIAL BEFORE JUDGE SITTING WITHOUT JURY," at 2-4). From these findings of fact, the court concluded as a matter of law that (1) appellants failed to prove the existence of an oral or written agreement of sale with appellee for the Mill Road premises, (2) appellants failed to prove with reasonable certainty the value of any alleged improvements made to the subject premises, (3) appellee is entitled to possession of the Mill Road property, and (4) appellants owed appellee $33,750 in overdue rent stemming from their use and occupation of the premises. A verdict was entered accordingly. Appellants' exceptions to the verdict were dismissed, and judgment was then entered on the verdict. This appeal followed.

Appellants contend first that the substantial part performance exception to the Statute of Frauds applies so as to warrant enforcement of the oral contract. The Statute of Frauds provides that:

§ 1. Parol leases, etc.; estates in lands not to be assigned, etc., except by writing

From and after April 10, 1772, all leases, estates, interests of freehold or term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary notwithstanding; except, nevertheless, all leases not exceeding the term of three years from the making thereof; and moreover, that no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law. 1772, March 21, 1 Sm.L. 389, § 1.

33 P.S. § 1. Thus, oral contracts to convey real estate violate the Statute of Frauds and are unenforceable. Fannin v. Cratty, 331 Pa.Superior Ct. 326, 329-331, 480 A.2d 1056, 1058 (1984); Briggs v. Sackett, 275 Pa.Superior Ct. 13, 16, 418 A.2d 586, 588 (1980); Eastgate Enterprises, Inc. v. Bank and Trust Co. of Old York Road, 236 Pa.Superior Ct. 503, 506, 345 A.2d 279, 280-281 (1975). See also Target Sportswear, Inc. v. Clearfield Foundation, 327 Pa.Superior Ct. 1, 9-11, 474 A.2d 1142, 1147 (1984); Haines v. Minnock Construction Co., 289 Pa.Superior Ct. 209, 216, 433 A.2d 30, 33 (1981). However, "[s]pecific evidence that would make recission of an oral contract inequitable and unjust will take such contract outside of the Statute of Frauds; partial performance, which has benefited the party invoking the Statute, will in appropriate circumstances, bar the invocation of the rule." In re Estate of Brojak, 321 Pa.Superior Ct. 154, 167, 467 A.2d 1175, 1182 (1983); Eastgate Enterprises, Inc. v. Bank and Trust Co. of Old York Road, supra 236 Pa.Superior Ct. at 506, 345 A.2d at 280. For example, specific performance may be ordered where it appears that continuous and exclusive possession of the subject property was taken under the oral contract and improvements were made by the buyer not readily compensable in money. Klingensmith v. Klingensmith, 375 Pa. 178, 184, 100 A.2d 76, 79 (1953); Briggs v. Sackett, supra 275 Pa.Superior Ct. at 16-17, 418 A.2d at 588-589.

Here, appellants allege that they have been in possession of the Mill Road premises since the last week of April, 1982, paid a $10,000 down payment on the property, and effected $29,000 worth of improvements between April, 1982, and May, 1984. Although it is undisputed that appellants have been in continuous and exclusive possession of the property, appellants failed to present any documented evidence (e.g., receipts) at trial in support of their testimony regarding the alleged expenditures. Moreover, according to the evidence accepted by the trial court, the $10,000 deposit was paid to a third party and would have been forfeited because of appellants' inability to come up with the $90,000 balance of the purchase price. Therefore, we agree with the lower court that appellants have not proved their claim of substantial part performance.

Appellants contend next that the trial court erred in refusing to allow them to present documented evidence of their expenditures for the improvements. "It is axiomatic that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear abuse of that discretion." Gallegor by Gallegor v. Felder, 329 Pa.Superior Ct. 204, 211, 478 A.2d 34, 38 (1984); In re Kirkander, 326 Pa.Superior Ct. 380, 383-385, 474 A.2d 290, 292 (1984); Burch v. Sears, Roebuck and Co., 320 Pa.Superior Ct. 444, 455, 467 A.2d 615, 621 (1983). The court may exclude evidence that is irrelevant, confusing, misleading, cumulative or prejudicial. See Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983); Gallegor by...