Simcoe v. Huszar

10 Pa. D. & C.3d 298, 1979 Pa. Dist. & Cnty. Dec. LEXIS 343
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedApril 25, 1979
Docketno. 10
StatusPublished

This text of 10 Pa. D. & C.3d 298 (Simcoe v. Huszar) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simcoe v. Huszar, 10 Pa. D. & C.3d 298, 1979 Pa. Dist. & Cnty. Dec. LEXIS 343 (Pa. Super. Ct. 1979).

Opinion

LAVELLE, J.,

— Before the court are defendants’ preliminary objections to plaintiffs amended complaint in equity. The facts giving rise to the present action, as stated in plaintiffs pleading and admitted as true for the purpose of the demurrer, may be briefly summarized as follows:

1. Defendant Huszar, prior to the institution of the within proceeding, held a malt and brewed beverages distributor’s license pursuant to the provisions of section 431(b) of the Pennsylvania Liquor Code of April 12,1951, P.L. 90, as amended, 47P.S. §4-431(b).

2. Pursuant to the aforesaid license, defendant Huszar held an appointment from C. Schmidt and Sons, Inc., a brewer of malt beverages, granting Huszar the exclusive right to sell at wholesale Schmidt’s beer products in designated portions of Carbon and Monroe Counties.

3. Plaintiff holds a similar license, franchise, or appointment to sell Schmidt’s beverages in a territory contiguous to that of Huszar’s.

4. Plaintiff alleges that during July of 1978, he [300]*300entered into an oral contract with Huszar whereby the latter agreed to “sell” to plaintiff Huszar’s appointment from Schmidts for a total consideration of $30,000; no sale of goodwill or of tangible business assets of Huszar was contemplated under the agreement; only the license or permit under section 431 of the Liquor Code was to be transferred.

5. According to plaintiff, the mechanics of the transfer were to have been that Huszar would notify Schmidts that it was relinquishing its appointment and that Huszar would cause Schmidt to appoint plaintiff in Huszar’s place.

6. During plaintiffs negotiations with defendant Huszar, plaintiff also met with defendant Robert Smida, another beverage distributor, and was allegedly told by Smida that he (Smida) was desirous of purchasing other assets of Huszar but was not interested in being appointed as a distributor, and allegedly Smida encouraged plaintiff to pursue the distributorship rights with Huszar.

7. Plaintiff prepared an agreement reducing to writing the terms of his alleged oral contract with Huszar and presented same to Huszar; said agreement, however, was never executed by Huszar.

8. On or about July 20, 1978, both plaintiff and defendant Huszar communicated with Schmidts for the purpose of advising Schmidts of the intended transfer of the distributing rights to plaintiff and were advised to send Schmidts a letter informing them of the transfer; a copy of said letter was attached to plaintiffs complaint as Exhibit C but it is not clear from the record whether such letter was ever signed by Huszar or ever mailed to Schmidts.

9. On the same date, defendant Huszar referred plaintiff to Huszar’s attorney and that day plaintiff went to see said attorney, who advised plaintiff that [301]*301he would prepare a more formal document setting forth the agreement and would have it ready within eight to ten days.

10. Plaintiff heard no further from Huszar’s attorney and following numerous attempts to reach him, plaintiff was finally advised by defendant Huszar, on or about August 23, 1978, that defendant would not sell the distributorship to plaintiff but instead was going to sell it to defendant Robert E. Smida.

11. The distributorship allegedly has been transferred to Smida’s wife, defendant Mary E. Smida.

In his complaint, plaintiff seeks specific performance of his alleged agreement with defendant Huszar as well as other relief.

All defendants have filed preliminary objections to plaintiffs complaint in equity, essentially alleging the following: 1. Plaintiffs claim is barred by the Statute of Frauds; 2. Plaintiff has an adequate remedy at law and hence no equity jurisdiction lies; 3. The complaint fails to state a cause of action upon which relief can be granted; and 4. The complaint is improperly verified. We will dispose of these objections seriatim.

DISCUSSION

I. The Statute of Frauds

Both defendants have invoked section 1-206 of the Uniform Commercial Code of April 6, 1953, P.L. 3, as amended, 12A P.S. §1-206, commonly known as the Statute of Frauds, which provides that:

“Except in the cases described in subsection (2) [relating to the sale of goods, securities and security [302]*302agreements] of this section a contract for the sale of personal property is not enforceable by way of action or defense beyond five thousand dollars ($5,000) in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by his authorized agent.”

Two related but distinct questions are raised by this objection: (1) Whether the alleged agreement between plaintiff and defendant Huszar is a “contract of sale” within the language of section 1-206; and (2) Whether the distributorship license involved herein is “personal property” within the language of the same section.

No definition of sale is contained in section 1-206 and we are therefore relegated to the sales article of the code for a definition of that term. See Baldassarre v. Rare Metals Derivatives, Inc., 444 Pa. 100, 282 A. 2d 262 (1971). According to section 2-106, a sale “consists in the passing of title from the seller to the buyer for a price.” Huszar’s appointment from Schmidts contained no language indicating an intention that it was to continue for any particular period of time. Hence, it was terminable at will by either party: Weilersbacher v. Pittsburgh Brewing Company, 421 Pa. 118, 218 A. 2d 806 (1966); Price v. Confair, 366 Pa. 538, 79 A. 2d 224 (1951). The contemplated transaction between plaintiff and Huszar, as outlined in plaintiffs brief, was that the parties would contact Schmidts and confirm that Schmidts was agreeable to appointing the plaintiff to Huszar’s territory. Huszar would then relinquish his existing appointment and Schmidts [303]*303would then appoint plaintiff to the distributorship which Huszar formerly held. Whatever the true nature of the transaction might have been, it is clear that it was not a sale within the language of the Uniform Commercial Code since nothing of value was being transferred directly from Huszar to plaintiff.

Rather, Huszar, for a consideration, was agreeing to use his influence with Schmidts to have plaintiff appointed to his (Huszar’s) territory. Nothing of value was to pass directly from Huszar to plaintiff, and the consideration which was to pass to Huszar was more in the nature of a finder’s fee than a price. A similar analysis was used by the United States District Court for the Eastern District of Pennsylvania in Stone v. Krylon, Inc., 141 F. Supp. 785 (E.D. Pa. 1956). There plaintiff averred that defendant had orally promised him that if we would aid defendant in developing a satisfactory special product for the coating of asbestos shingles, defendant would grant plaintiff the exclusive distributorship for the product throughout the United States for a minimum period of ten years. Plaintiff did develop such a product, but defendant defaulted in its oral promise to give plaintiff the distributorship, and plaintiff filed suit. Defendant filed amotion to dismiss the complaint contending that the alleged-oral contract was unenforceable because of the Statute of Frauds. In denying the defendant’s motion, the court observed:

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Related

Stone v. Krylon, Inc.
141 F. Supp. 785 (E.D. Pennsylvania, 1956)
Strank v. Mercy Hospital of Johnstown
117 A.2d 697 (Supreme Court of Pennsylvania, 1955)
Barco, Inc. v. Steel Crest Homes, Inc.
218 A.2d 221 (Supreme Court of Pennsylvania, 1966)
Baldassarre v. Rare Metals Derivatives, Inc.
282 A.2d 262 (Supreme Court of Pennsylvania, 1971)
Pichler v. Snavely
79 A.2d 227 (Supreme Court of Pennsylvania, 1951)
Price v. Confair
79 A.2d 224 (Supreme Court of Pennsylvania, 1951)
Carelli v. Lyter
244 A.2d 6 (Supreme Court of Pennsylvania, 1968)
GLENN v. Point Park College
272 A.2d 895 (Supreme Court of Pennsylvania, 1971)
Pennsylvania Railroad v. Bogert
59 A. 100 (Supreme Court of Pennsylvania, 1904)
Weilersbacher v. Pittsburgh Brewing Co.
218 A.2d 806 (Supreme Court of Pennsylvania, 1966)

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Bluebook (online)
10 Pa. D. & C.3d 298, 1979 Pa. Dist. & Cnty. Dec. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simcoe-v-huszar-pactcomplcarbon-1979.