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ORLOWSKI v. MOORE. (06/13/62)

June 13, 1962

ORLOWSKI, APPELLANT,
v.
MOORE.



Appeal, No. 94, April T., 1962, from decree of Court of Common Pleas of Armstrong County, June T., 1960, No. 172, in case of Alex Orlowski v. Mary H. Moore et al. Decree affirmed.

COUNSEL

John C. Millard, with him James G. Callas, for appellant.

W. Davis Graham, with him C. Doyle Steele, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 198 Pa. Super. Page 361]

OPINION BY WOODSIDE, J.

This is an appeal from the final decree of the Court of Common Pleas of Armstrong County dismissing the appellant's complaint in equity.

Orlowski, the appellant here, filed the complaint against Mary H. Moore and W. Frank Moore, her husband, and the Appollo Trust Company for the specific performance of a contract for the sale of real estate.

During the year 1959, and prior thereto, the Moores were the owners of a property known as 212-214 First Avenue in Apollo. The Moores offered the property for sale at a price of $5500, and although there were several prospective purchasers, none was willing to pay that price. On September 1, 1959, the property was leased to Orlowski for a period of one year at a rental of $35 per month. The lease agreement was in writing and contained the following provision: "Lessee has the first chance to buy in case of sale of the property." Prior to the execution of the lease, Orlowski was notified that the Moores intended to sell the property upon securing a suitable buyer.

About the middle of January 1960, the Apollo Trust Company advised the Moores that it would purchase the property for $5000. Immediately thereafter, Orlowski was notified that the Moores had a purchaser for the price of $5000 to whom the property would be sold unless Orlowski exercised his right of first purchase.

[ 198 Pa. Super. Page 362]

The rent for December and January was not paid on time, and at the time of the payment of the rental in early February, Orlowski was again notified that the property would be sold to another person unless Orlowski arranged for the purchase. At this time, Orlowski notified the Moores that he had attempted to secure a loan from a bank and was unsuccessful, but that he would continue to try to secure the purchase money. On February 10, 1960, the Moores believing that Orlowski could not secure the purchase price, gave an option for the purchase of the property for $5000 to the Apollo Trust Company for a period of 60 days. The trust company exercised the option, and a deed for the property was executed by the Moores and delivered to the trust company on March 9, 1960. After the option was given to the trust company by the Moores, but before they conveyed title, Orlowski notified the Moores that he had secured the purchase money and asked for the conveyance of the property to him.

The facts set forth above are not exactly in accord with the appellant's testimony, but are substantially those found by the chancellor and approved by the court. We have examined the record and ...


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