J. A25032/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


RAYMOND M. DONADIO, JR. AS         :              IN THE SUPERIOR COURT OF
PERSONAL REPRESENTATIVE OF THE     :                   PENNSYLVANIA
ESTATE OF ELIZABETH C. PALMER,     :
                                   :
              v.                   :
                                   :
FONNER INSURANCE ASSOCIATES, INC., :
                                   :
                   Appellant       :
                                   :              No. 234 EDA 2015

                    Appeal from the Order December 9, 2014
              In the Court of Common Pleas of Montgomery County
                        Civil Division No(s).: 2014-05370

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED December 17, 2015

        Appellant, Fonner Insurance Associates, Inc. (“Fonner”), appeals from

the order denying its motion for judgment on the pleadings and granting the

cross-motion for judgment on the pleadings filed by Appellees, Raymond M.

Donadio, Jr., as personal representative of the Estate of Elizabeth C. Palmer

(“Estate”).     Fonner contends the underlying contract is illegal and,

alternatively, should have been construed in its favor.         Fonner also

challenges the award of attorneys’ fees and costs to the Estate. We affirm.

        We adopt the facts as set forth in the amended complaint.1 Britton W.

Palmer, Jr., also known as “Britt,” owned an insurance brokerage firm



*
    Former Justice specially assigned to the Superior Court.
J.A25032/15


named Britton W. Palmer & Sons, Inc., and was married to Elizabeth C.

Palmer.     On November 1, 2006, Britton and Elizabeth executed an

agreement to sell the brokerage firm to Fonner.

     The purpose of the agreement follows:

                                BACKGROUND

             Britt is an independent contractor engaged in the
          business of selling insurance (“Business”). Britt wishes to
          sell and Buyer [i.e., Fonner,] wishes to buy certain
          insurance assets, as more specifically hereinafter
          described. The parties agree to the foregoing under and
          subject to the following terms and conditions.

             NOW THEREFORE, the parties hereto, intending to be
          legally bound, agree as follows:

             1. On the Closing Date (as hereinafter            defined),
          Palmer[2] shall sell, convey, transfer and assign   to Buyer,
          and Buyer shall purchase from Palmer                 for the
          consideration set forth in Section 3 below the       following
          (the “Assets”):

                a. all of Palmer’s goodwill, customer lists, prospect
            lists, accounts and related files existing as of the
            Closing Date, including, without limitation, the items
            listed on Schedule 1a (the “Accounts”).[3]




1
  “On appeal, we accept as true all well-pleaded allegations in the
complaint.” Consolidation Coal Co. v. White, 875 A.2d 318, 325-26 (Pa.
Super. 2005) (citation omitted).
2
 The agreement defined “Palmer” as Britt, Elizabeth, and Britton W. Palmer
& Sons, Inc.
3
  Schedule 1a was not part of the record but is not necessary to our
disposition.




                                     -2-
J.A25032/15


                 b. all of Palmer’s right to and interest in telephone
              numbers and uniform resource locators used in
              connection with operating Palmer’s Business.

R.R. at 13a.4

        Section 3 governed the purchase price:

              3. In consideration of the transferred Assets, Buyer
           shall pay to Britt or Britt’s Successor-in-Interest (as
           defined below), as applicable, (i) forty-five percent (45%)
           of all Retained Commissions, (ii) ten percent (10%) of
           Broker Business Commissions and (iii) Britt’s Pro Rata
           Share of Volume Profit Sharing (each as defined below, the
           Retained Commissions, Broker Business Commissions and
           the Volume Profit Sharing, collectively, the “Earnout Base”
           and the amount to be paid to Britt or Britt’s Successor-in-
           Interest, the “Earnout Payments”) within fifteen (15) days
           of the end of the month during which such Earnout Base is
           actually received by Buyer. . . . Palmer shall use Palmer’s
           best efforts to obtain payment of the Earnout Base due on
           account of the Assets from any customer or any insurance
           underwriter providing coverage to Palmer’s customers.
           Under no circumstances shall Buyer be obligated to pay
           Britt or his Successor-in-interest any Earnout Payment on
           account of Earnout Base not actually collected by Buyer.
           In the event any commissions are refunded or returned by
           Buyer to Buyer’s customers or any insurance underwriter
           for any reason, Britt or Britt’s Successor-in-Interest shall
           return to Buyer the entire Earnout Payment paid to Britt or
           his Successor-in-Interest, as applicable, in respect of such
           refunded or returned commissions and this obligation shall
           survive termination of the Agreement. . . . “Retained
           Commissions” shall mean net commissions actually paid
           to, and received by Buyer directly arising from the
           Accounts;[5] “Broker Business Commissions” shall mean
           gross commissions, prior to payment of any broker

4
    We cite to the reproduced record for convenience.
5
  “Accounts” is defined as including, inter alia, the customer accounts of
Britton W. Palmer & Sons, Inc.




                                      -3-
J.A25032/15


          commission-sharing obligations, directly arising from
          business placed through Haas[6] by an independent third-
          party broker, “Volume Profit Sharing” shall mean additional
          bonuses received from insurance underwriters for success
          in achieving certain levels of business and “Britt’s Pro Rata
          Share” shall be equal to a fraction, the numerator of which
          is the amount of business sourced by Britt to such
          underwriter and the denominator of which is the total
          amount of business sourced to such underwriter by Britt
          and Buyer collectively, all calculated over such period of
          time as is used to calculate the Volume Profit Sharing. The
          Earnout Base shall only include amounts received from the
          date of closing until the tenth (10th) anniversary of
          closing. In the event of Britt’s death after the closing,
          Buyer shall continue to make Earnout Payments to Britt’s
          Successor-in-Interest as set forth in this Agreement. Upon
          Britt’s death, “Successor-in-Interest” shall mean (i) if Britt
          is survived by his current spouse Elizabeth C. Palmer, then
          Elizabeth C. Palmer or (ii) if Elizabeth C. Palmer has died,
          then Britt’s estate.

R.R. at 14a.    The Agreement included an integration clause.       Britt passed

away on December 20, 2011, and Elizabeth passed away on September 8,

2013.

        Appellees filed suit on March 12, 2014, raising claims for declaratory

judgment and breach of contract. Eventually, each party filed a motion for

judgment on the pleadings.        On December 10, 2014, the court denied

Fonner’s motion for judgment on the pleadings and granted Appellees’ cross-




6
  “Haas” is a third party that Palmer gave a right of first refusal to purchase
the Accounts.




                                      -4-
J.A25032/15


motion for judgment on the pleadings. Fonner timely appealed and timely

filed a court-ordered Pa.R.A.P. 1925(b) statement.7

     Fonner raises the following issues:

        1. Whether the Trial Court erred by determining Fonner is
        obligated to make payments to the Estate as contemplated
        in an agreement pursuant to which Fonner was to pay a
        certain percentage of commissions related to the
        acquisition of clients of Britton W. Palmer & Sons, Inc.
        dated November 1, 2006 (“Agreement”) for the balance of
        the 10 year term, since that determination would require
        both Fonner (payor) and the Estate (payee) to violate the
        law.

        2. Whether the Trial Court erred by failing to determine,
        consider or properly apply the fact that Fonner is not
        contractually obligated to make monthly payments to the
        Estate arising out of the Agreement in light of the
        unambiguous expression of the parties’ intention that the
        death of Elizabeth C. Palmer, with her husband Britton W.
        Palmer, Jr. having predeceased her, terminates the
        payment obligations.

        3. Whether the Trial Court erred by failing to determine,
        consider or properly apply the fact that the language of the
        Agreement itself and the law of this Commonwealth
        regarding contract interpretation expressly provides that
        the right to the Earnout Payments (as defined in the
        Agreement) did not pass to the Estate of Elizabeth C.
        Palmer following her death, with her husband Britton W.
        Palmer, Jr. having predeceased her.

        4. Alternatively, whether the Trial Court erred by failing to
        determine the Agreement is ambiguous as to whether
        Fonner is contractually obligated to make monthly


7
  Appellees timely cross-appealed and timely filed a court-ordered Rule
1925(b) statement. Appellees discontinued the cross-appeal on May 18,
2015.




                                    -5-
J.A25032/15


         payments to the Estate following her death, with her
         husband Britton W. Palmer, Jr. having predeceased her.

         5. Whether the Trial Court erred when it determined the
         Estate is a prevailing party entitled to an award of the
         payment of its attorneys’ fees and costs by Fonner.

Fonner’s Brief at 4-5.

      In support of its first issue, Fonner contends the Agreement violates

40 Pa.C.S. §§ 310.72 and 310.73, which govern the payment and receipt of

insurance commissions. Fonner thus claims the contract is illegal and void.

Alternatively, Fonner argues it is a licensee and the law bars payments of

insurance commissions to a non-licensee, such as the Estate.              Appellees

counter that Fonner waived the issue of whether the Agreement was illegal

by not raising it as an affirmative defense in its answer and new matter.

Fonner, however, replies that it raised the illegality defense for the first time

in its response to Appellees’ cross-motion for judgment on the pleadings.

We hold Fonner is not entitled to relief.

      As a prefatory matter, we address whether Fonner waived its defense

of illegality.   Pennsylvania Rule of Civil Procedure 1030(a) governs

mandatory invocation of affirmative defenses:

         (a) Except as provided by subdivision (b), all affirmative
         defenses including but not limited to . . . illegality . . . shall
         be pleaded in a responsive pleading under the heading
         “New Matter”. A party may set forth as new matter any
         other material facts which are not merely denials of the
         averments of the preceding pleading.




                                       -6-
J.A25032/15


Pa.R.C.P. 1030(a).8 Rule 1032(a) provides that a party waives all defenses

not raised in an answer: “A party waives all defenses and objections which

are not presented either by preliminary objection, answer or reply . . . .”

Pa.R.C.P. 1032(a).

        Notwithstanding Rule 1032(a), however, it has been long settled that

the defense of illegality is not waived if a party failed to invoke it.          In

Howarth v. Gilman, 65 A.2d 691 (Pa. Super. 1949), this Court addressed

the issue as follows:

           Appellants’ basic contention is that the contracts were
           illegal because appellees were engaged in the practice of
           the profession of engineering without a license contrary to
           the Act of May 23, 1945, P.L. 913, 63 P.S. § 148 et seq.,
           and appellees were thereby barred from recovery.
           Preliminarily, we shall dispose of appellees’ contention that
           the defense of illegality was not raised by appellants’
           pleadings and was not interposed in time. That appellees
           were not licensed pursuant to the Act of 1945, supra, and
           that John A. Howarth represented himself as being
           engaged in the ‘business of industrial designing and
           engineering,’ appeared in appellees’ case, not only by
           admitted pleadings, which were read into the record, but
           also on cross-examination of the appellee. On such state
           of the record it has been held that such illegality was
           properly cognizable by the court although such defense
           had not been previously raised. Brenner v. Pecarsky, 86
           Pa. Super. 414, 416. Cf. F. F. Bollinger Co. v. Widmann
           Brewing Corp., 339 Pa. 289, 14 A.2d 81; Hazle Drug
           Co., Inc., v. Wilner, 284 Pa. 361, 368, 131 A. 286.




8
    The rule is substantially identical to the version originally enacted in 1946.




                                        -7-
J.A25032/15


Id. at 692; accord Norristown Ford Co. v. Metro. Auto Dealer, Inc.,

132 A.2d 725, 726 (Pa. Super. 1957);9 see also Am. Ass’n of Meat

Processors v. Cas. Reciprocal Exch., 588 A.2d 491, 496 (Pa. 1991)

(holding, “The illegality of a contract is therefore a question not entirely

controlled by the rules of pleading; whenever it appears that the

enforcement of a contract would violate public policy, the court should

dismiss the proceedings of its own motion.”).

        The instant facts are akin to the facts in Howarth. Although Fonner—

like the appellants in Howarth—failed to invoke the affirmative defense of

illegality properly, it has not waived the defense given its underlying

contention that the Agreement violates two Pennsylvania statutes.           See



9
    One treatise stated the following:

           Also, although the illegality of a contract is an affirmative
           defense that must be pleaded, the defense is not waived
           by the defendant's failure to plead it. The illegality of a
           contract is a question not entirely controlled by the rules of
           pleadings because the courts will not be used to enforce
           contracts that violate public policy. A plaintiff cannot be
           permitted recovery on an illegal cause of action, even if
           the defendant failed to properly plead illegality; thus, the
           defense of illegality is properly cognizable by the court
           where the illegality appears from the plaintiff's pleadings
           or on cross-examination of the plaintiff.          Moreover,
           whenever it appears that the enforcement of a contract
           would violate public policy, the court should dismiss the
           proceedings on its own motion, even if the issue is raised
           clearly for first time in post-trial motions.

5 Standard Pennsylvania Practice 2d § 27:30 (footnotes omitted).




                                         -8-
J.A25032/15


Howarth, 65 A.2d at 692; see also Meat Processors, 588 A.2d at 496.

Accordingly, we proceed to examine the merits.

     Our standard of review follows:

        Entry of judgment on the pleadings is permitted under
        Pennsylvania Rule of Civil Procedure 1034, which provides
        that after the pleadings are closed, but within such time as
        not to unreasonably delay trial, any party may move for
        judgment on the pleadings. A motion for judgment on the
        pleadings is similar to a demurrer. It may be entered
        when there are no disputed issues of fact and the moving
        party is entitled to judgment as a matter of law. In
        determining if there is a dispute as to facts, the court must
        confine its consideration to the pleadings and relevant
        documents. On appeal, we accept as true all well-pleaded
        allegations in the complaint.

           On appeal, our task is to determine whether the trial
        court’s ruling was based on a clear error of law or whether
        there were facts disclosed by the pleadings which should
        properly be tried before a jury or by a judge sitting without
        a jury.

              Neither party can be deemed to have admitted
              either conclusions of law or unjustified
              inferences. Moreover, in conducting its inquiry,
              the court should confine itself to the pleadings
              themselves and any documents or exhibits
              properly attached to them. It may not consider
              inadmissible evidence in determining a motion
              for judgment on the pleadings. Only when the
              moving party’s case is clear and free from doubt
              such that a trial would prove fruitless will an
              appellate court affirm a motion for judgment on
              the pleadings.

White, 875 A.2d at 325 (internal quotation marks and citations omitted).

           The fundamental rule in interpreting the meaning of a
        contract is to ascertain and give effect to the intent of the
        contracting parties. The intent of the parties to a written
        agreement is to be regarded as being embodied in the


                                    -9-
J.A25032/15


         writing itself.   The whole instrument must be taken
         together in arriving at contractual intent. Courts do not
         assume that a contract’s language was chosen carelessly,
         nor do they assume that the parties were ignorant of the
         meaning of the language they employed. When a writing
         is clear and unequivocal, its meaning must be determined
         by its contents alone.

            Only where a contract’s language is ambiguous may
         extrinsic or parol evidence be considered to determine the
         intent of the parties. A contract contains an ambiguity if it
         is reasonably susceptible of different constructions and
         capable of being understood in more than one sense. This
         question, however, is not resolved in a vacuum. Instead,
         contractual terms are ambiguous if they are subject to
         more than one reasonable interpretation when applied to a
         particular set of facts. In the absence of an ambiguity, the
         plain meaning of the agreement will be enforced. The
         meaning of an unambiguous written instrument presents a
         question of law for resolution by the court.

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429-30

(Pa. 2001) (internal quotation marks and citations omitted). “[I]t is not the

function of this Court to re-write it, or to give it a construction in conflict

with that which accords with the accepted and plain meaning of the

language used.” Hagarty v. William Akers, Jr. Co., 20 A.2d 317, 319 (Pa.

1941); accord Synthes USA Sales, LLC v. Harrison, 83 A.3d 242, 250-51

(Pa. Super. 2013).

      Because two statutes are involved, we set forth the following

guidelines:

         Because statutory interpretation is a question of law, our
         standard of review is de novo, and our scope of review is
         plenary.




                                    - 10 -
J.A25032/15


                The object of interpretation and construction of
                all statutes is to ascertain and effectuate the
                intention of the General Assembly.         See 1
                Pa.C.S. § 1921(a). When the words of a statute
                are clear and free from all ambiguity, their plain
                language is generally the best indication of
                legislative intent.    A reviewing court should
                resort to other considerations to determine
                legislative intent only when the words of the
                statute are not explicit. 1 Pa.C.S. § 1921(b).
                In ascertaining legislative intent, this Court is
                guided by, among other things, the primary
                purpose of the statute, see 1 Pa.C.S. §
                1921(c)(4), and the consequences of a
                particular interpretation. Id. § 1921(c)(6).

           Moreover, it is axiomatic that in determining legislative
           intent, all sections of a statute must be read together and
           in conjunction with each other, and construed with
           reference to the entire statute.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 953 (Pa. Super. 2011) (per

curiam) (internal quotation marks, brackets, and some citations omitted).

        Section 310.72 of Title 40 sets forth limitations on the payment of

commissions:

           (a) Limitation.—An insurance entity may pay a
           commission, brokerage fee, service fee or other
           compensation to a licensee for selling, soliciting or
           negotiating a contract of insurance. A licensee may pay a
           commission, brokerage fee, service fee or other
           compensation to a licensee for selling, soliciting or
           negotiating a contract of insurance. Except as provided in
           subsection (b),[10] an insurance entity or licensee may not
           pay a commission, brokerage fee, service fee or other
           compensation to a person that is not a licensee for
           activities related to the sale, solicitation or
           negotiation of a contract of insurance.
10
     None of the exceptions set forth at subsection (b) apply.



                                      - 11 -
J.A25032/15



40 P.S. § 310.72 (emphases added). Simply, an insurance agency cannot

compensate a non-licensee for anything related to the sale of an insurance

contract. See id.

     Section 310.73 governs limitations on the receipt of commissions:

        (a) Limitation.—A licensee may accept a commission,
        brokerage fee, service fee or other compensation from an
        insurance entity or licensee for selling, soliciting or
        negotiating a contract of insurance. Except as provided in
        subsection (b), a person may not accept a commission,
        brokerage fee, service fee or other compensation from an
        insurance entity or licensee if the person is not a licensee
        and the compensation is for activities related to the
        sale, solicitation or negotiation of a contract of
        insurance.

40 P.S. § 310.73 (emphases added).            Similar to Section 310.72, a non-

licensee is not allowed to be compensated for anything related to the sale of

an insurance contract. See id.

     Section 310.1 defines “sell” and “negotiate” as follows:

        The following words and phrases when used in this
        article[11] shall have the meanings given to them in this
        section unless the context clearly indicates otherwise:

                                 *     *       *

        “Negotiate.” To confer directly with or to offer advice
        directly to a purchaser or prospective purchaser of a
        particular contract of insurance concerning the substantive
        benefits, terms or conditions of the contract, provided that


11
   This is a reference to Article VI-a, which encompasses 42 P.S. §§ 310.72
to .73.




                                     - 12 -
J.A25032/15


           the person engaged in that act either sells insurance or
           obtains insurance from insurers for purchasers.

                                  *     *      *

           “Sell.” To exchange a contract of insurance by any means
           for money or its equivalent on behalf of an insurance
           entity.

40 P.S. § 310.1.

        Instantly, the Agreement governs the sale of a business, specifically,

Palmer’s Assets, including goodwill and accounts. See R.R. at 13a. Nothing

in the Agreement suggests it was for the sale, solicitation, or negotiation of

an insurance contract, and we will not strain the language of the Agreement

beyond its well-settled meaning. See id.; Hagarty, 20 A.2d at 319. Fonner

identified no language in the Agreement suggesting its purpose was

anything other than an asset purchase. See Murphy, 777 A.2d at 429-30.

        The plain language of Sections 310.72 and 310.73 limit the payment

and receipt of compensation associated with the “sale, solicitation, or

negotiation of a contract of insurance.” See 40 P.S. §§ 310.72, 310.73; see

also 40 P.S. § 310.1 (defining “negotiate” and “sell” in reference to

contracts of insurance).12    We discern no ambiguity in this phrase.     See

Braun, 24 A.3d at 953.       We perceive no construction of this phrase that

would encompass the purchase or sale of a business.        See id.    Because

Sections 310.72 and 310.73 limit payments related to the sale, solicitation,

12
     We acknowledge the redundant nature of the definitions.




                                      - 13 -
J.A25032/15


or negotiation of an insurance contract only, and because the instant

Agreement does not involve the sale, solicitation, or negotiation of an

insurance contract, Sections 310.72 and 310.73 do not apply.              See id.;

Murphy, 777 A.2d at 429-30. Because Sections 310.72 and 310.73 do not

apply, we reject Fonner’s contention that the Agreement violates the law.

      We summarize Fonner’s arguments in support of its second, third, and

fourth issues. As noted above, the relevant Agreement provision follows:

             In the event of Britt’s death after the closing, Buyer
         shall continue to make Earnout Payments to Britt’s
         Successor-in-Interest as set forth in this Agreement. Upon
         Britt’s death, “Successor-in-Interest” shall mean (i) if Britt
         is survived by his current spouse Elizabeth C. Palmer, then
         Elizabeth C. Palmer or (ii) if Elizabeth C. Palmer has died,
         then Britt’s estate.

R.R. at 14a. Fonner contends that the Agreement allowed for payments to

Britton’s estate, but was silent regarding payments to Elizabeth’s estate.

When an Agreement is silent, Fonner argues, the court cannot impute

Elizabeth’s estate into the contract term “Elizabeth.”    By engaging in such

imputation, Fonner argues, the court rendered the phrase “Britt’s estate”

superfluous. In Fonner’s view, the Agreement unambiguously provides that

when Elizabeth died, it could stop paying.     Alternatively, Fonner counters

that the Agreement is ambiguous given the parties’ differing interpretations

of this clause.   Fonner opines the court should have denied both parties’

motions for judgment on the pleadings and let the case proceed to trial. In




                                     - 14 -
J.A25032/15


essence, Fonner is arguing that because the sellers are now deceased, it can

stop paying for the Assets it bought. Fonner, we hold, is due no relief.

      By way of background,

         The death or disability of a party to a contract of a
         continuing character or to be performed at a future time
         may terminate the contract or excuse nonperformance
         only if the contract depends on the personal qualities or
         abilities of such party.

                                  *     *      *

         On the other hand, an agreement not necessarily required
         to be performed in person or not involving peculiar skills
         authorizes the inference that a mere personal relation was
         not contemplated, and such a contract is not discharged by
         death, although the rule is subject in the first instance to a
         construction of the contract itself and the determination
         from its terms as to what was the intention of the parties.

                                  *     *      *

            Of course, the parties to a contract may, by express
         terms, agree that the right of performance shall be
         discharged upon the death of one of the parties, and thus
         exclude substituted performance. It is also true that a
         contract may involve matters of such a nature as to render
         the performance of them so incompatible with the
         settlement of a decedent’s estate, and so inconsistent with
         the general duties of an administrator or executor that, in
         the absence of any express provision to the contrary, the
         parties may be presumed to have intended its dissolution
         at death.

12 Pa. Law Encyclopedia 2d § 457 (2010) (footnotes omitted).

      In Young v. Gongaware, 119 A. 271 (Pa. 1922), the decedent sold

goods to the defendant for $2,300, specifically $300 in cash and the

remainder in stock of a third party. Id. The defendant retained the right to



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J.A25032/15


rescind the stock transfer within two years, and “after this period,

[decedent] at any time could elect to take cash by demanding its

redemption.” Id. The decedent did not demand sale within his lifetime. Id.

        Within one month of the decedent’s death, which was almost four

years    after   the   two-year   period   expired,       the    decedent’s    widow—as

administratrix—requested      the   defendant        to   sell   the   stock   for   cash,

specifically $2,000 and interest.       Id. The defendant refused, arguing “the

right to demand fulfillment of the contract did not pass to plaintiff as

administratrix of her husband’s estate, that what was bargained for was the

personal judgment of decedent as to what should be done with the stock.”

Id. at 272.

        The Young Court rejected the defendant’s argument:

           Where the contract may be performed by the personal
           representatives, or where it embodies a property right, the
           performance of such duty and the succession of such right
           to the personal representatives is generally held to be the
           rule of law; death does not terminate such contracts. The
           parties may, however, by express terms, agree that the
           right shall not pass, and so exclude substituted
           performances.

                                    *      *     *

           [I]t is clear, from a careful consideration of the contract
           before us, what is given is the right to select one of two
           alternative methods for the payment of a debt;[13] it was
           not a personal right in Young, but is a property right
           passing as an asset to his estate in which creditors and

13
     It is not entirely clear what the second method of payment was.




                                        - 16 -
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          others have an interest. The duty enjoined, demanding
          payment in cash, was not incompatible with the general
          duties of an administrator, but was in harmony with them,
          aiding a prompt settlement of the estate. Performance
          required nothing more than the exercise of sound
          judgment, a thing constantly required of these officers
          when they sell or otherwise deal with the estate of a
          decedent. Here we have a contract of sale, not fully
          performed as to payment of the purchase price.
          Plaintiff could not require a return of the goods sold
          defendant; what she demands is complicance [sic]
          with the terms of the agreement. . . .

                                 *     *      *

          [The contract] fixed a property right of value which could
          and did pass as part of his estate to the administratrix,
          who had all decedent’s power under the agreement to
          enforce fulfillment of the obligation.

Id. (citations omitted).

       Instantly, similar to the Young contract for goods, the instant

Agreement to sell the brokerage firm did not require Britt or Elizabeth to

perform purely personal services.    See id.; 12 Pa. Law Encyclopedia 2d §

457.   Given the contracts in the instant case and Young govern an asset

sale, the instant right is a property right that can pass as an asset to an

estate in which creditors may have an interest. See Young, 119 A. at 272.

Akin to the Young contract, which was “not fully performed as to payment

of the purchase price,” the instant Agreement also has not yet been fully

performed by Fonner.       See id.   Fonner, in other words, similar to the

defendant in Young, has not yet finished paying for the brokerage firm.

See id.



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      As with the widow in Young, the administrator of Elizabeth’s estate

has also demanded compliance with the Agreement.              See id.     The

administrator, identical to the administratrix in Young, has Elizabeth’s

“power under the agreement to enforce fulfilment of the obligation.” See id.

Identical to the widow in Young, we hold Appellees are “merely collecting a

debt arising under the contract’s peculiar terms of payment.” See id. We

also discern nothing within the contract that expressly discharged Fonner’s

obligation to pay if Elizabeth died. See 12 Pa. Law Encyclopedia 2d § 457.

Accordingly, we discern no error of law by the trial court. See Murphy, 777

A.2d at 429-30.

      For its last issue, Fonner contends the trial court erred by holding the

Estate was entitled under the Agreement to attorneys’ fees and costs as a

prevailing party. For the reasons set forth above, a right to counsel fees and

costs under the Agreement is a property right that can pass as an asset to

the Estate. See Young, 119 A. at 272. Accordingly, having discerned no

error of law, we affirm. See White, 875 A.2d at 325.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/17/2015




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