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MARTIN D. COHEN AND MARILYN A. COHEN v. RICHARD E. PARKER AND CONSTANCE L. PARKER (10/20/78)

decided: October 20, 1978.

MARTIN D. COHEN AND MARILYN A. COHEN, HIS WIFE, APPELLEES,
v.
RICHARD E. PARKER AND CONSTANCE L. PARKER, HIS WIFE, APPELLANTS



No. 1946 October Term, 1977, APPEAL FROM ORDER OF THE COURT OF COMMON PLEAS, NORTHAMPTON COUNTY, CIVIL DIVISION, LAW, ENTERED June 1, 1977, at No. 427, August Term, 1975.

COUNSEL

David Freeman, Philadelphia, for appellants.

Gus Milides, Easton, submitted brief for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 258 Pa. Super. Page 322]

This is an appeal from an order of the Court of Common Pleas of Northampton County, awarding plaintiff $5,000 in a real estate transaction case. The court en banc dismissed defendant's exceptions to the trial court's decision and sustained its findings. We affirm the decision of the court en banc.

The parties, plaintiff sellers and defendant buyers, entered into an agreement of sale on August 11, 1975, for the purchase of plaintiff's home. Attached to the agreement of sale was an addendum, prepared at the direction of the buyers, wherein the parties agreed the sale would be contingent on the buyers being able to sublet their apartment.*fn1 Buyer then deposited $5,000 in escrow with the real estate agency involved in the sale. In an attempt to sublet their apartment, buyers advertised the apartment for a price $20 under their rental fee. They advertised the property 15 times over a one-month period, but no offers were generated.

[ 258 Pa. Super. Page 323]

On September 3, 1975, sellers prepared and executed an "Agreement" wherein they agreed to assume all responsibility for the buyers' lease as of November 1, 1975.*fn2 This "Agreement" was read to buyers over the telephone by the real estate agent that same day. Buyers indicated they wanted to reserve decision on it until they could examine the "Agreement," which they received on September 5, 1975.

During this period, sellers were negotiating with buyers' landlord in order to purchase a release of buyers' lease for a sum of $1,000. By letter of September 11, 1975, the buyers notified the real estate agent that they would not go through with the sale because they had not sublet their apartment as of September 10, 1975 as per the terms of the addendum. On September 12, 1975 the landlord agreed to the sellers' offer to purchase the release of buyers' lease obligations but did not accept the money when he discovered the buyers had cancelled the deal.

There was no evidence that buyers communicated to the sellers or the real estate agent their objections to the sellers' offer to buy the release of the lease. However, at trial, the buyer, Mr. Parker, testified that the offer was insufficient because it did not take effect until after the date of settlement, September 30, 1975, and he did not feel he could force the sellers to comply with the "Agreement" after settlement.

Plaintiff seller sued in assumpsit for the $5,000 deposit money as liquidated damages for buyers default in the sale. The lower court, in a non-jury proceeding, decided that the buyers acted in bad faith in an attempt to frustrate the sale by rejecting seller's offer to assume the lease and therefore plaintiffs were entitled to retain the $5,000 down payment as ...


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