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CHANOFF v. FIALA (10/09/70)

decided: October 9, 1970.

CHANOFF, APPELLANT,
v.
FIALA



Appeal from decree of Court of Common Pleas of Cumberland County, March T., 1968, No. 2, in case of William Chanoff v. Fred Fiala et ux.

COUNSEL

Herbert M. Linsenberg, with him, Robert J. Klein and Meltzer & Schiffrin, for appellant.

James D. Flower, with him Myers, Myers, Flower & Johnson, for appellees.

Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Eagen.

Author: Roberts

[ 440 Pa. Page 425]

This is an action in equity seeking specific performance of an agreement for the sale of real estate, located

[ 440 Pa. Page 426]

    in Camp Hill, Pennsylvania, on which the buyer, Chanoff, wished to build a multi-unit apartment project. The portions of the agreement relevant to this dispute are: "8. . . . Buyer shall, within ninety days after execution hereof, make the necessary initial applications for zoning and subdivision approvals for the Apartment Project, and promptly notify Seller upon the grant or refusal of such permits." "9. Settlement shall . . . not be later than six months after the date of execution hereof, subject to the following provisions of this Paragraph 9. If, after application, Buyer shall not be granted all necessary approvals by the applicable authorities, Buyer shall make settlement within said six-month period or this agreement shall be null and void and the Ten Thousand Dollars ($10,000) [deposit] shall be returned to Buyer; provided, however, that Buyer shall have the right to extend the settlement date for an additional period of three months by making an additional deposit of Ten Thousand Dollars ($10,000) on account of the purchase price, and if such approvals are not obtained within said additional period, Buyer shall make settlement or this Agreement shall be null and void and the total deposit of Twenty Thousand Dollars ($20,000) shall be returned to Buyer." "12. If Seller is not in default hereunder and Buyer violates or fails to fulfill any of the terms of this Agreement, any money then held by the Realtor in escrow and paid by Buyer on account of the purchase price shall be retained by the Seller as liquidated damages, which shall be the Seller's sole remedy . . ."

The initial applications for zoning and subdivision approval were due, under paragraph eight, supra, by February 1, 1968, but the buyer did not file these applications until March 28. Nevertheless, as the chancellor found, the seller, Fiala, did not object when told of Chanoff's late filing, but merely said that Chanoff should file as soon as possible. In addition, on April

[ 440 Pa. Page 42720]

, Fiala contacted borough officials to urge them to expedite Chanoff's applications.

On April 30, buyer mailed from his office in Philadelphia an uncertified personal check in the amount of $10,000, dated May 1, payable to seller's broker. While May 1 was the last day of the six month period specified in paragraph nine of the agreement, the check was not received until May 2. Seller's broker did deposit the check upon receipt, however, and informed seller of its arrival; the check was honored by the drawee bank on May 3.

On May 4, the Board of Directors of the School District of Camp Hill passed a resolution condemning the land in question. On May 16, seller's attorney wrote buyer informing him that their agreement was null and void because the $10,000 check was not received by May 1. Buyer, however, called seller to settlement on July 17. After seller did not appear, buyer proceeded to sue for specific performance of their agreement; seller cross-claimed for the $10,000 escrow account as liquidated damages for buyer's failure to file the initial applications within ninety days. The chancellor, after finding of facts set out above, ...


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