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LONG JOHN SILVER'S v. WILLIAM FIORE (04/28/78)

decided: April 28, 1978.

LONG JOHN SILVER'S, INC., A CORPORATION
v.
WILLIAM FIORE, HAROLD ALETTO AND PAUL LESKO (TWO CASES). APPEAL OF HAROLD ALETTO. APPEAL OF PAUL LESKO



Appeals from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 75-2364 - In equity, Entered on April 18, 1977.

COUNSEL

Frank E. Coho, Pittsburgh, for appellants.

Michael D. Fox, Pittsburgh, with him Robert Engel, Pittsburgh, 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., files a concurring and dissenting opinion in which Cercone, J., joins.

Author: Hoffman

[ 255 Pa. Super. Page 185]

Appellants contend that the lower court erred in (1) granting appellee's motion for summary judgment, and (2) dismissing appellants' equitable claims and transferring them to the law side of the court as claims for damages only. We disagree and, therefore, affirm the lower court.

This case arises from conflicting claims to a twenty feet wide strip of land in Pleasant Hills Borough, Allegheny County. The pleadings, affidavits, and deposition reveal the following facts. William Fiore is the owner of several parcels of land in Pleasant Hills Borough in Allegheny County, Pennsylvania. On March 19, 1973, Fiore entered into an agreement of sale with appellant Harold Aletto (d/b/a BKM Services, Inc.) for a parcel of land with 150 feet of frontage along Route 51 in Fiore's lot plan. Aletto sought to purchase the land as a location for a Burger King restaurant. Although Aletto and the real estate agent signed the agreement, Fiore never signed it. The agreement was never recorded.

Subsequently, on June 12, 1974, Fiore entered into a sales agreement with Long John Silver's, Inc., a fast-food restaurant chain, under which Fiore was to convey to Long John Silver's a parcel of land with a frontage of 110 feet along Route 51 in Fiore's plan (the "LJS Parcel"). The agreement, signed by Fiore and Long John Silver's, provided for a sales price of $100,000.00; Long John Silver's paid $10,000.00 and agreed to pay the balance at closing. This agreement was never recorded.

[ 255 Pa. Super. Page 186]

On November 18, 1974, unbeknownst to Long John Silver's, Fiore and Aletto (d/b/a BKM Services, Inc.) signed a Release From Agreement which terminated the March 19, 1973 agreement between them. On the same day, Fiore entered into a ground lease agreement with Paul Lesko, a non-United States citizen residing outside of the United States. The ground lease contemplated rental of a parcel of land in Fiore's lot plan that had 160 feet of frontage along Route 51, 140 feet of which was adjacent to the LJS Parcel and 20 feet of which allegedly was part of the LJS Parcel. Aletto represented Lesko in this transaction as his attorney.

On October 25, 1974, Fiore and Long John Silver's obtained the last of the permits, authorizations, and approvals which were conditions precedent to closing on the June 12, 1974 contract. A closing was scheduled in the offices of Commonwealth Land Title Insurance Company on November 14, 1974. Present at the closing were Long John Silver's real estate representative, Paul R. Burkhardt, the closing officer, Cyril C. Gunst, Jr., and the escrow agent representing Commonwealth, Joseph L. Luciana, Jr. When Fiore arrived, accompanied by his attorney Ronald McKay, he announced that he was not yet ready to close because he needed more property in order to meet the need of a Burger King franchisee, Harold Aletto. Fiore further indicated that he would attempt to obtain from Chrysler Realty Corp. the additional property needed for both transactions. Luciana, the escrow agent, stated that he had not yet received the balance of the purchase price from Long John Silver's. Long John Silver's counsel in Kentucky, Curtis L. Wilson, advised Luciana that final closing figures were required in order to send the funds and that the funds would be wired to Commonwealth the next day. The balance of the purchase price, $91,486.25, was, in fact, credited to Commonwealth's escrow account on November 15, 1974.

On November 15, 1974, Long John Silver's notified Fiore that it was prepared to close on the agreement on November 18, 1974, in Commonwealth's offices. Neither Fiore nor his attorney appeared at that time. Subsequent closings were

[ 255 Pa. Super. Page 187]

    rescheduled for November 19, and November 22, 1974. Long John Silver's representatives were present at the designated times and places, but Fiore once again did not appear. On November 25, 1974, Long John Silver's sent Fiore a certified letter advising Fiore that he was in default for failing to appear at the closings scheduled for November 18, 19, and 22. Fiore responded in a letter on December 5, 1974, in which he alleged that Long John Silver's was in default of the agreement for failing to close on or before November 4, 1974, and for failing to pay the balance of the purchase price at the November 14, 1974 attempted closing.*fn1 Fiore also claimed that his appearance at the November 14, 1974 attempted closing did not waive his claim of breach for failure to close before November 4, 1974. This was the first indication that Fiore considered Long John Silver's to be in breach or default of the agreement.

On December 13, 1974, and again on December 18, 1974, Long John Silver's arranged another closing for December 18, 1974. Long John Silver's representatives were present at the designated times and places but Fiore failed to appear.

On January 31, 1975, Long John Silver's served a writ of summons in equity on Fiore. Subsequently, pursuant to an order of the court, Long John Silver's amended its writ of summons to add Harold Aletto as a defendant and filed a complaint in equity in the Court of Common Pleas of Allegheny County. In the complaint, Long John Silver's sought, inter alia, specific performance of the June 12, 1974 agreement of sale. Upon discovering Lesko's alleged leasehold interest in the property, Long John Silver's amended its complaint again on September 8, 1975 to name Lesko as an additional defendant.

[ 255 Pa. Super. Page 188]

After discovery, Long John Silver's petitioned the court for partial summary judgment against Fiore, Aletto, and Lesko on the issue of Long John Silver's right to the LJS Parcel, the subject of the June 12, 1974 agreement of sale. On November 8, 1976, the lower court issued an adjudication and decree nisi awarding Long John Silver's specific performance of the agreement with Fiore for conveyance of the LJS Parcel and extinguishing any rights of appellants in the parcel. The lower court based its decision on a finding that at the time of the November 18, 1974 release between Fiore and Aletto, the agreement of sale between Long John Silver's and Fiore assumed priority to the ground lease between Fiore and Lesko regarding the disputed twenty feet wide strip of land.*fn2

Appellant Fiore filed neither exceptions to the adjudication and decree nisi nor an appeal. Consequently, the court's findings regarding Fiore are final.*fn3 Appellants Aletto and Lesko briefed and argued their exceptions to the adjudication to the lower court, en banc, which dismissed the exceptions and made the decree nisi final on April 20, 1977. The court found that the decree nisi extinguished all of appellants' rights to the LJS Parcel but preserved whatever rights appellants may have had against Fiore for leasing them property to which equitable title had already been transferred. Accordingly, the lower court ...


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