Lehrer v. McCloskey Homes, Inc., 12240.
| Decision Date | 04 June 1957 |
| Docket Number | No. 12240.,12240. |
| Citation | 245 F.2d 11 |
| Parties | Lewis LEHRER and Eleanor B. Lehrer, His Wife, Appellants, v. McCLOSKEY HOMES, Inc. and McCloskey & Co. of Florida. |
| Court | U.S. Court of Appeals — Third Circuit |
Donald Bowman, Bernard J. Korman, Philadelphia, Pa. (Gold & Bowman, Philadelphia, Pa., on the brief), for appellants.
J. Dress Pannell, Harrisburg, Pa., Lawrence D. Biele, Philadelphia, Pa., for appellee.
Before BIGGS, Chief Judge, MARIS, Circuit Judge, and KRAFT, District Judge.
This is the second time this case has come before us. On the first occasion we dismissed the appeal at our No. 11,954 because the court below had not seen fit to make the determination and the order required by Rule 54(b), F.R.Civ. Proc., 28 U.S.C., and hence we had no final decision before us within the purview of 28 U.S.C. § 1291, 3 Cir., 242 F. 2d 190. The court below has now entered an order within the terms of Rule 54(b), the plaintiffs have taken an appeal from that order and the case is now ripe for decision.
Two corporations are named as defendants in the case at bar. The first is McCloskey Homes, Inc. (McCloskey of Delaware), a Delaware corporation: the second is McCloskey & Company of Florida (McCloskey of Florida), a Florida corporation. The first named corporation sold homes in Whitemarsh Village, Pennsylvania; the second built them. The plaintiffs, the Lehrers, man and wife, made a contract of sale with McCloskey of Florida, under which the latter agreed to construct a dwelling house on and to sell certain premises in Whitemarsh Village to the plaintiffs. The plaintiffs agreed to buy the premises and to make settlement when the house and grounds were completed. The complaint avers, and the contract of sale which accompanies the complaint states, that McCloskey of Florida agreed to complete the building and grounds in a satisfactory manner and in a way "substantially similar in grade and type as that exhibited" by a sample home on display in Whitemarsh Village.
On November 9, 1951, the day proposed for settlement, the house and grounds had not been completed. The complaint alleges that nonetheless the plaintiffs settled for the property, paying the balance to the "defendants," McCloskey of Delaware and McCloskey of Florida, and that they were induced to do so by both defendants asserting that the house and grounds, insofar as they had been completed, were like the sample house and grounds, and would be finished in a satisfactory manner; that on December 7, 1951 the plaintiffs took possession and moved into the house and that substantial defects then became apparent to the plaintiffs in the house's plumbing system, its heating system, the construction and finishing of the house's roof and walls, and in the landscaping; that these defects were called to the attention of the defendants, who refused to cure them; and that it became necessary for the plaintiffs to expend substantial sums of money, in excess of the jurisdictional amount, in effecting the necessary repairs. The plaintiffs sued both McCloskey of Florida and McCloskey of Delaware to recover the amount so expended.
McCloskey of Delaware moved to dismiss the complaint as not stating a cause of action against it and the court below granted this motion. D.C.E.D.Pa.1956, 139 F.Supp. 324. The appeal followed.
The suit at bar is based upon diversity and jurisdictional amount and the law of Pennsylvania governs insofar as McCloskey of Delaware is concerned. The contract between the plaintiffs and McCloskey of Delaware, if one is proved, was made in Pennsylvania and was to be performed there. The court below was of the view that the rights of the plaintiffs against McCloskey of Delaware were limited by the agreement of sale to which McCloskey...
To continue reading
Request your trial
-
Gallon v. LLOYD-THOMAS COMPANY
...216 F.2d 206; Reed v. National Old Line Insurance Co., 5 Cir., 239 F.2d 594; Lehrer v. McCloskey Homes, Inc., 3 Cir., 242 F.2d 190; Id., 3 Cir., 245 F.2d 11. When the case is ripe for appeal, this court will entertain the second appeal on the record and briefs prepared for the first appeal,......
-
Turtle v. Institute for Resource Management, Inc.
...Aluminum, Inc., 427 F.2d 847, 848 (3d Cir. 1970) ; Lehrer v. McCloskey Homes, Inc., 242 F.2d 190 (3d Cir. 1957), judgment rev'd, 245 F.2d 11 (3d Cir. 1957), or because defendant Block's counterclaim is still pending before the District Court. Illinois Tool Works, Inc. v. Brunsing, 378 F.2d ......
-
Mayo v. McCloskey & Co.
...particularity. 1. Count 1 alleges a contract and a breach with resultant damages. Such allegations are traditional. Lehrer v. McCloskey Homes, Inc., 3 Cir., 245 F. 2d 11. Count 2 alleges defendants knowingly misrepresented facts to plaintiffs in an effort to induce them to act which plainti......