No. 91 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Delaware County, No. 13691 of 1969, dated August 16, 1977, Civil Action, Law.
C. Clark Hodgson, Jr., Philadelphia, for appellants.
Patricia H. Jenkins, Media, with her Matthew J. Ryan, Media, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort and Hester, JJ. Spaeth, J., did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 567]
Appellants bring this appeal from an order of summary judgment entered in favor of appellee. The only issue before us is whether the lower court erred in holding that appellee's oral promise to lend money to appellants in return for a mortgage on property to be purchased with the borrowed money is unenforceable by virtue of the statute of frauds.*fn1 We find no error and, accordingly, affirm.
In February, 1968, appellants learned that a six unit apartment building in Upper Darby, Pennsylvania, might be for sale. A mortgage on the property was held by appellee savings and loan association. After beginning negotiations to buy the property, appellants contacted appellee to ascertain whether they could borrow purchase money from appellee. On June 5, appellants filed a loan application with appellee and on June 15, they entered into a written agreement of sale with the property owners.*fn2 During June and
[ 255 Pa. Super. Page 568]
July, Appellant Nicholas Bozzi had several conversations, by telephone and in person, with Ralph Smoot, an officer of appellee lending institution. Although appellants sought a loan in the amount of $46,000 repayable over twenty years at seven per cent interest, the terms of the loan agreement provided for a $45,000 loan repayable over seventeen years at five per cent interest.*fn3 Consideration for the loan was to be a first mortgage on the property. On September 5, appellee notified appellants that it was no longer willing to lend the purchase money provided by the oral agreement, although it did propose that appellants assume the existing mortgage on the property. Appellants found appellee's offer unacceptable. Before appellants were able to secure other financing, the property owners brought their delinquent mortgage payments up to date and the property was withdrawn from the market.
Appellants brought this suit in assumpsit against appellee seeking $55,047.77 in damages allegedly caused by appellee's failure to abide by the oral loan agreement. After lengthy discovery and a pretrial conference, appellee moved for summary judgment on the basis that the oral agreement was unenforceable as a matter of law by virtue of the statute of frauds. The motion was granted and this appeal followed.
The statute of frauds provides that
[N]o leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, ...