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HomeMy WebLinkAbout98-835 civilHELP-U-SELL REAL ESTATE PROFESSIONALS, Plaintiff VS. ROBERT HAYNES and KATHLEEN HAYNES, Defendants · IN THE COURT OF COMMON PLEAS · OF CUMBERLAND COUNTY, · PENNSYLVANIA o · CIVIL ACTION- LAW · 98-835 CIVIL · IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this /o* day of June, 1998, the preliminary objections of the defendants to the plaintiff' s complaint are OVERRULED. BY THE COURT, Linus E. Fenicle, Esquire Thomas O. Williams, Esquire For the Plaintiff Robert P. Haynes, Esquire For the Defendants · Hess, J. :rlm HELP-U-SELL REAL ESTATE PROFESSIONALS, Plaintiff VS. ROBERT HAYNES and KATHLEEN HAYNES, Defendants · IN THE COURT OF COMMON PLEAS · OF CUMBERLAND COUNTY, · PENNSYLVANIA · CIVIL ACTION- LAW · o · 98-835 CIVIL IN RE' DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER This matter is before the court on the preliminary objections of the defendants to the plaintiff' s complaint. The facts alleged in the complaint are as follows' The defendants in this case, Robert and Kathleen Haynes, entered into a contractual relationship with the plaintiff, Help-U-Sell-Real Estate Professionals on or about March 28, 1998. This agreement called for the defendants to pay the plaintiff, a licensed real estate broker, a four-percent commission (later reduced to three-percent) for providing a buyer ready, willing, and able to buy the defendants' home. This listing agreement expired on September 30, 1998, and contained a sixty-day agent's fee protection period. The parties agreed to extend the expiration date of the listing agreement until October 30, 1998, and also agreed to reduce the agent's fee protection period to thirty days. On November 22, 1998, after the expiration of the extended agreement, the plaintiff introduced Jeffrey Hubbard to the defendants. In December 1998, Hubbard bought the defendants property. According to the complaint, Mr. Hubbard contacted the plaintiff as a result of advertising done by the plaintiff. The plaintiff showed Mr. Hubbard the defendants' home on November 24, 1998, answered Hubbard's questions, and arranged for a second showing. On December 2, 98-0835 CIVIL 1998, the plaintiff prepared Mr. Hubbard's purchase offer of $180,000 and conveyed it to the defendants. A series of counteroffers ensued, and according to the complaint, Hubbard and the defendants reached agreement on a final purchase price of $185,000. The Plaintiff now claims that it is entitled to a real estate broker commission of $5,550, or three-percent of $185,000. The plaintiff's amended complaint contained three separate counts, breach of contract (Count I), breach of implied contract (Count III), or in the alternative unjust enrichment (Count II). The defendants' preliminary objections are in the nature of demurrers to all three counts of the plaintiff' s complaint. For the following reasons we deny the defendants' preliminary objections. The test for preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kef)hart, 466 Pa. 560, 563,353 A.2d 833,835 (1976). In determining whether to sustain preliminary objections, this court must accept as tree all well pleaded material facts as well as any reasonable inferences that may be drawn from those facts. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (Pa. 1992). First, we are satisfied that the plaintiff has stated a cause of action with regard to the first count of the complaint, breach of contract. The Pennsylvania Supreme Court has stated that a broker cannot recover a commission unless the broker can show that a contract, either express or implied, existed between the broker and the seller, or that the seller accepted or ratified the acts of the broker. Axilbund v. McAllister., 407 Pa. 46, 54, 180 A.2d 244, 249 (Pa. 1962). Additionally, the court stated that if the broker "constitutes the efficient cause of the production of a seller, he is generally entitled to his commission even though the sale was completed by the seller himself, or another broker." Axilbund, 407 Pa. at 54,. 180 A.2d at 249. 98-083 5 CIVIL The actual sale of the real estate took place after the expiration of the listing agreement between the plaintiff and the defendants, as well as past the thirty-day agent protection period. However, the complaint does allege facts sufficient to support a claim that the defendants ratified the unauthorized acts of the plaintiff in procuring Hubbard, a buyer ready, willing, and able to purchase the defendants' property. Ratification is defined as "the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his count, whereby the act, as to some or all persons, is given effect as if originally authorized by him." Lapio v. Robbins, No. 97-09447, 1999 WL 270070, at * 5 (Pa. Super.) (citing the Restatement (Second) of Agency § 94). The court went on to cite the Restatement in stating that an acceptance of the unauthorized act can be evidenced by a failure to repudiate it. Id.. In the complaint, the plaintiff alleges facts, which show that the plaintiff was acting for the benefit of the defendants. These include that the plaintiff introduced Hubbard to the defendants, that the plaintiff arranged for two showings of the defendants' home for Hubbard, and that the plaintiff transmitted the initial offer by Hubbard, as well as counteroffers between Hubbard and the defendants. These factual allegations also support a claim that the defendants failed to repudiate the actions of the plaintiff that were made on the defendants' behalf after the expiration of the listing agreement, and that the defendants' thus ratified the plaintiff' s acts. As to the demurrer to the implied contract count of the complaint (Count III), the plaintiff's brief states that pursuant to Cumberland County Court of Common Pleas Local Rule 210-7, that the defendants' demurrer as to Count III of the Amended Complaint should be dismissed because the defendants failed to brief their demurrer to Count III. We note, however, that the defendants referred in his brief to Count III, albeit fleetingly. Nonetheless, the demurrer shall be denied because the plaintiff has alleged sufficient facts to support his claim under Count 98-0835 CIVIL III. The complaint alleges facts that, in the absence of ratification by the defendants of the plaintiff' s acts, that there was a contract implied in fact between the plaintiff and the defendants regarding the plaintiff' s acts after the expiration of the listing agreement. A contract implied in fact is "an actual contract which arises where the parties agree upon the obligations to be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding circumstances and 'the ordinary course of dealing and the common understanding of men.'" Martin v. Little, Brown and Co., 304 Pa. Super 424, 429, 450 A.2d 984, 987 (Pa. Super. 1981). Additionally, a promise to pay the reasonable value of the service is implied "where one performs for another, with the others knowledge, a useful service that is usually charged for, and the latter expresses no dissent or avails himself of the service." Martin, 304 Pa. at 430, 450 A.2d at 987. Finally, the party performing the service must have a reasonable expectation of payment by the party benefited. Id. In the complaint, the plaintiff alleges that after the expiration of the listing agreement in October 1998, that the plaintiff provided brokerage services that are usually charged for, and the defendants expressed no dissent to these services. The complaint also alleges facts that the defendants availed themselves of the plaintiff' s services, such as allowing the plaintiff to convey the defendants' counteroffer to Hubbard. Therefore, as offer and acceptance need not be need not be identifiable for a contract implied in fact, Ingrassia Construction Co., Inc., v. Wals..h., 337 Pa. Super. 58, 66, 486 A.2d 478, 483 (Pa. Super. 1984), the trier of fact could determine that the plaintiff had a reasonable expectation of compensation and that there was an implied contract between the plaintiff and the defendants based on the facts alleged in the complaint. Additionally, in order for the plaintiff to collect his commission he must not only show that there was an actual or implied contract, but that the plaintiff was also the "efficient cause of the production of a buyer," that ultimately purchased the defendants' property. Axilbund, 407 98-0835 CIVIL Pa. at 54, 180 A.2d at 249. The complaint alleges that Hubbard, the ultimate purchaser of the defendants' property, enlisted the services of the plaintiff as a result of the plaintiff' s advertising. The complaint alleges that the plaintiff arranged for Hubbard to view the property, and that the plaintiff acted as an intermediary for the parties during the course of the negotiations. Therefore, the plaintiff has alleged sufficient facts to support a claim that the plaintiff's acts were the efficient cause of producing the buyer of the defendants' property. The defendants' demurrer as to the unjust enrichment count of the complaint (Count II) is also denied. The second count of the complaint states that in the absence of an actual or implied contract, that the plaintiff is entitled to the reasonable value of its brokerage services under the doctrine of quasi-contract / unjust enrichment. "Unlike tree contracts, quasi-contracts are not based on the apparent intentions of the parties to undertake the performance in question...they are obligations created by law for reasons of justice." Martin, 304 Pa. Super at 432, 450 A.2d at 988. To sustain a claim for unjust enrichment a plaintiff must show: "(1) benefits conferred by the plaintiff to the defendant, (2) appreciation of such benefits by the defendant, and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for the defendant to retain the benefit without payment of reasonable value." Schenck v. K.E. David, LTD., 446 Pa. Super. 94, ~7, 666 A.2d 327, 328 (Pa. Super. 1995.)' From the facts alleged, the defendants would have appreciated the services provided by the plaintiff that led up to the ultimate sale to Hubbard. And under the facts alleged, the defendants accepted and retained those benefits by continuing to allow the plaintiff to act on their behalf after the expiration of the listing agreement. The trier of fact could therefore determine that said acceptance and retention on the part of the defendants would be unequitable unless the defendants compensated the plaintiff. 98-0835 CIVIL The defendants' brief states that the plaintiff has failed to state a cause of action for unjust enrichment because the plaintiff seeks a measure of damages for breach of contract as the "reasonable value of its services" under the unjust enrichment count. However, the reasonable value of the services alleged is for the trier of fact to determine, and therefore the unjust enrichment count cannot be dismissed simply because the remedy sought for breach of contract and unjust enrichment are the same. Furthermore, as long as the plaintiff has plead unjust enrichment as a separate count apart from his claims for breach of contract, thereby putting the defendants on notice of such a claim, the plaintiff can seek to recover as the reasonable value of its services an amount identical to that fixed as the compensation under the alleged contract. Zawada v. Pennsylvania System Board of Adiustment.., 392 Pa. 207, 213,140 A.2d 335,338 (Pa. 1958). Therefore, for the reasons stated above, the defendant's preliminary objections as to the three counts of the complaint are denied. ORDER AND NOW, this /o day of June, 1999, the preliminary objections of the defendants to the plaintiff' s complaint are OVERRULED. B Y THE COURT, Linus E. Fenicle, Esquire Thomas O. Williams, Esquire For the Plaintiff Robert P. Haynes, Esquire For the Defendants