Savitz v. Weinstein

• Decision Date: 20 March 1959
• Citation: 395 Pa. 173,149 A.2d 110
• Parties: Phil SAVITZ, Appellant, v. Morton B. WEINSTEIN.
• Court: Pennsylvania Supreme Court

149 A.2d 110

395 Pa. 173

Phil SAVITZ, Appellant, v. Morton B. WEINSTEIN.

Supreme Court of Pennsylvania.

March 20, 1959.

Harry Norman Ball, Joseph G. Feldman, Philadelphia, for appellant.

Laurence H. Eldredge, Morris Chernock, Philadelphia, for appellee.

Before BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, and McBRIDE JJ.

BELL, Justice.

Plaintiff is attempting to recover on an amended complaint in trespass--alleging deceit by defendant who is an attorney at law. The lower Court sustained defendant's preliminary objections in the nature of a demurrer, and plaintiff's amended complaint was dismissed.

In Gardner v. Allegheny County, 382 Pa. 88, at page 94 114 A.2d 491, at page 494, the Court said:

'Defendants by their 'preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleader's conclusions or averments of law' Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895, 896. Moreover, when the sustaining of defendants' preliminary objections will result in a denial of plaintiffs' claim, or a dismissal of plaintiffs' suit, preliminary objections should be sustained only in cases which are clear and free from doubt: London v. Kingsley, 368 Pa. 109, 81 A.2d 870; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776.'

It is necessary, therefore, to review and analyze plaintiff's averments of fact to determine whether they allege a valid cause of action.

Gallaccio and Reale were engaged in the construction business under the name of Western Construction Company. They were low bidders on a contract for the construction of a sewer at Castor Avenue. Plaintiff averred that he and Gallaccio and Reale entered into a written agreement, under the terms of which plaintiff was employed as General Superintendent of the construction of the Castor Avenue sewer, in consideration of which plaintiff became entitled, inter alia, to receive a bonus of $14,000. Plaintiff also averred that he had invested $14,000 with the Western Construction Company for the purpose of this sewer job. Defendant was attorney for Gallaccio and Reale, and the agreement between them and plaintiff was prepared by defendant.

Plaintiff further averred:

'In the * * * preparation of the contract * * * defendant acted as attorney for Fred Gallaccio and Frank Reale and upon being advised that plaintiff was not represented by any counsel, agreed to act as attorney for the plaintiff and in the preparation thereof to protect the plaintiff in connection with the matter. Thereafter, defendant advised plaintiff that he had prepared the agreement for the protection of the plaintiff, counseled him with regard to the terms and effect of the agreement, acted as his intermediary in connection with the transfer of the monies referred to in the agreement; prepared a certification to be signed by plaintiff, which was delivered to a bonding company which guaranteed performance of the work referred to and advised plaintiff to sign the same for delivery to the bonding company and assured him that he would protect his interests in the transaction in the same manner as he was protecting the interest of the partnership ^[1] of Fred Gallaccio and Frank Reale, individually and trading as Western Construction Company.

'* * * and further advised plaintiff not to secure a separate attorney to represent his interests since such representation would involve the payment of fees and would hold up the completion of the work of the job referred to in the contract and further represented that the agreement prepared by defendant between plaintiff on the one part and Fred Gallaccio and Frank Reale on the other, was a binding and legal contract between plaintiff and Fred Gallaccio and Frank Reale.

'* * * Thereafter, in reliance upon defendant's assurances and representations, plaintiff signed said contract. Without defendant's representations and assurances, plaintiff would neither have turned over his money [$14,000] to defendant nor have entered into said contract.

'Fred Gallaccio and Frank Reale wrongfully discharged plaintiff on November 5, 1952, at a time when 90% of the construction of the Castor Avenue Sewer was completed. The wrongfulness of the discharge was [successfully and] conclusively adjudicated in Savits v. Gallaccio, 1955, 179 Pa.Super. 589, 118 A.2d 282. In said litigation defendant represented Fred Gallaccio and Frank Reale.

'On September 2, 1953, plaintiff brought an action against Fred Gallaccio and Frank Reale captioned 'Phil Savits v. Fred Gallaccio and Frank Reale, individually and trading as Western Construction Co., C. P. No. 6, June Term, 1953, No. 9618' * * *.

'In this suit the basic defense, suggested, counseled and instigated by defendant, was made as follows:

"* * * the agreement herein to pay plaintiff a bonus of $14,000 over and above the plaintiff's loan of $14,000 was a subterfuge and device by use of the word 'bonus' in said written agreement to conceal an express oral understanding by the parties to pay to the plaintiff usurious interest on account of the said loan in violation of the Pennsylvania statute * * * which act limits the lawful rate of interest for any loan in Pennsylvania to 6% per annum.'

'On January 22, 1957, at the trial of [that ] suit * * * defendant testified to the effect that said contract which defendant drew was a subterfuge, and was usurious and illegal. [The trial resulted in a verdict for plaintiff in the amount of $14,000.]

'By reason of defendant's action in suggesting, counseling and instigating the defense [of usury], * * * plaintiff was obliged * * * to engage counsel to represent his interests therein and to pay to said counsel the sum of $6,000, being the fee charged by said counsel. The said fee included reimbursement of counsel for all costs and expenses of commencing and prosecuting pl...