Maxwell H. Cohen, Stroudsburg, for appellant.
John J. Pentz, Jr., Stroudsburg, submitted a brief for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Spaeth, J., concurs in the result.
[ 254 Pa. Super. Page 179]
This is an appeal from the order of the Court of Common Pleas of Monroe County, Civil Division, in equity, that decreed specific performance of an agreement of sale of real estate by the defendant-appellant, D. Katz and Sons, Inc.
The facts are as follows: The plaintiff-appellee, Bernard Turk, (hereinafter called Buyer) had undertaken to purchase certain real estate in Stroud Township, from the defendant-appellant, D. Katz and Sons, Inc. (hereinafter called Seller) for Thirty-five Thousand ($35,000.00) Dollars, of which Five Hundred ($500.00) Dollars was paid as a down payment on account of the purchase price in the form of a check held in escrow by the attorney who at the time of the agreement of sale, by mutual consent of the parties, represented both parties in drafting the agreement. The portion of the agreement relative to this appeal reads as follows:
"11. a. Seller shall be responsible in obtaining the necessary zoning change or variance from an R-2 zone to permit use of the premises in conjunction with the operation of Beaufab Mills, Inc. located on an adjacent property, either by way of variance or reclassification. The change of use will include storage facilities and the renovation or extension of existing buildings or the construction of additional structures for use with Beaufab Mills, Inc., as a dye house or manufacturing plant. Seller will prepare, execute and prosecute all petitions and documents required by the Municipality of Stroud Township in order to effectuate the intent of this provision.
"11. c. In the event said approvals are not obtained as set forth above, the deposit shall be returned to the Buyer and this Agreement shall be null and void and of no further force and effect."
[ 254 Pa. Super. Page 180]
So the Seller undertook not only to convey the property for the named consideration, but also agreed to obtain favorable zoning action by the grant of a variance by the zoning board or amendment of the zoning ordinance by the township supervisors, by permitting the Buyer to use the premises in conjunction with a business already being operated by the Buyer in a different location.
The Seller did apply to the Zoning Hearing Board for a special use or variance but the application was denied on July 13, 1971. The defendant engaged a surveyor who in May, 1972, prepared a plan of the locality with a mylar overlay demonstrating proposed changes in the relevant zoning district. The Seller never made an application to the Board of Supervisors of Stroud Township, who constituted the only agency empowered to amend the zoning plan to effectuate the change needed. He decided not to seek the change because of his belief that it would be unsuccessful.
During this period, the Buyer continually asked for a report of progress on the zoning matter and was assured that the matter was in progress. The Seller's contention of laches is without merit.
On April 13, 1973, at the Seller's request, the mutual counsel wrote a letter to the Buyer asserting the futility of further expenditures of time and money for the purpose of obtaining the zoning variance and returned the $500.00 deposit check and concluded ". . . this matter is unfortunately at an end."
The Buyer then secured counsel to represent him in the matter who sent a letter dated May 25, 1973 to Seller's counsel advising him that the Buyer was willing to comply with all the terms of the agreement calling for performance on his part and waive the requirements of performance by the Seller ...