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ZISKIND ET AL. v. BRUCE LEE CORPORATION (06/14/73)

decided: June 14, 1973.

ZISKIND ET AL., APPELLANTS,
v.
BRUCE LEE CORPORATION



Appeals from orders of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1972, No. 1400, in case of Gerald N. Ziskind and Louis C. Glasso, Inc., a corporation v. Bruce Lee Corporation and J. M. Evans.

COUNSEL

Zeno Fritz, for appellants.

Lee A. Donaldson, Jr., with him C. C. Gunst, Jr., and Donaldson, Donaldson & Gunst, for appellee.

John L. Doherty, for additional defendant, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 224 Pa. Super. Page 520]

We must decide two distinct questions with regard to the instant appeal: (1) did the trial court properly enter judgment on defendant's counterclaim for the recovery of a down payment on a land sale contract, and (2) should plaintiff-appellants have been permitted to join as an additional defendant a party to whom a portion of the down payment had been paid in reliance on the validity of the sale agreement?

In October, 1971, appellants, Gerald N. Ziskind and Louis C. Glasso, Inc., and the appellee, Bruce Lee Corporation (hereinafter, "Lee"), executed a written agreement wherein, for the sum of $239,500, payable $75,000 at closing on or before October 31, 1971, and $164,500 with interest by a mortgage to be amortized over a period of ten years, appellants covenanted to convey by a general warranty deed: ". . . a fee simple title, clear of all encumbrances -- all that real estate in the Township of McCandless, Allegheny County, Pennsylvania, of record in the Recorder's Office of Allegheny County in Deed Book Vol. 4604, page 313."

When Lee failed to appear for the closing on November 1, 1971, appellants sued Lee in assumpsit to collect the balance owing under the agreement. Lee counterclaimed for the return of the $25,000 hand money which it had paid to appellants, averring that appellants had breached the agreement because of the existence of eleven right-of-way easements, a creek and roads, on the property in violation of the agreement to convey the land "clear of all encumbrances". Under Rule 1035, Lee moved for summary judgment. Approximately 150 days after the counterclaim was served upon the plaintiffs-appellants, appellants sought to join as an additional defendant, the appellee, J. M. Evans, to recover $15,000, which he was retaining and which had been paid to him by appellants. Evans preliminarily objected on the ground of untimely joinder.

[ 224 Pa. Super. Page 521]

On December 18, 1972, a court en banc entered judgment in the sum of $25,000 plus interest against the appellants and in favor of Lee, with the proviso that the judgment was "not to prejudice the right of the plaintiffs to proceed in the within action against the additional defendant, J. M. Evans." After hearing argument, Judge Frederic H. Weir, on February 6, 1973, sustained Evans' preliminary objections, and dismissed Evans as a party to the original action. This appeal followed.

I. The Right of Appellants To Enforce the Land Sale Contract

We affirm the lower court's action in this case. The sellers, the appellants herein, expressly covenanted to convey title "clear of all encumbrances". The use of that legal phrase cannot be taken lightly. When a seller so covenants, the buyer is entitled to all of the benefits of such a warranty even if he knows of the existence of an encumbrance at the time of agreement. ...


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