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PHAFF v. GERNER (03/16/73)

decided: March 16, 1973.

PHAFF, APPELLANT,
v.
GERNER



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1971, No. 981, in case of Samuel Phaff v. George Gerner and Dorothy Gerner.

COUNSEL

Edward Unterberger, with him Gold, Bowman & Korman, for appellant.

Arsen Kashkashian, Jr., with him Simons, Kashkashian, Nissenbaum & Kellis, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.

Author: Manderino

[ 451 Pa. Page 147]

The appellant, Samuel Phaff, appeals from a decree granting summary judgment to the appellees, George Gerner and Dorothy Gerner. The appellant was the

[ 451 Pa. Page 148]

    proposed purchaser and the appellees were the proposed sellers of real estate located at 9218 Ashton Road in Philadelphia, Pennsylvania. The agreement between the parties provided for payments totaling $5,000 prior to the settlement date, and for payment of the balance of the $53,000 at the time of settlement. The $5,000 was paid by the appellant to the appellees. Settlement, originally scheduled for December 4, 1970, was rescheduled by mutual agreement and was to take place on or before January 18, 1971. Time was of the essence of the agreement.

January 15, 1971 at 1:00 p.m., was eventually set as the settlement time and date at the office of the Commonwealth Land Title Insurance Company in Philadelphia, Pennsylvania. Settlement, however, did not occur.

Appellant's complaint in equity alleged the above facts and further alleged that appellant presented to the title officer at settlement funds sufficient to meet the balance due. Appellees' answer denied that the appellant presented the balance due at the time of settlement. The answer further alleged that the appellant was not present at settlement and did not deposit the balance due with the title officer.

Thus, the pleadings raised a genuine issue of fact as to whether the appellant timely met his obligation to tender the balance due at the time of settlement. Appellees then moved for summary judgment and filed the supporting affidavit of the title officer present at the settlement. The appellant did not present any supporting affidavits in response to appellees' motion for summary judgment.

The title officer's affidavit stated that "At no time did Samuel Phaff appear, deposit any monies as required by Arsen Kashkashian's letter of instructions, or complete settlement in any way." Arsen Kashkashian was ...


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