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ANTHONY A. DALE v. FLORENCE CRAWFORD (01/18/80)

filed: January 18, 1980.

ANTHONY A. DALE
v.
FLORENCE CRAWFORD, APPELLANT



No. 158 March Term 1978, Appeal from the Decree of the Court of Common Pleas of Fulton County at No. 6 May Term, 1975

COUNSEL

Richard W. Cleckner, Harrisburg, for appellant.

Roy S. F. Angle, Waynesboro, submitted a brief on behalf of appellee.

Spaeth, Hester and Montgomery, JJ. Spaeth, J., concurs in the result.

Author: Montgomery

[ 274 Pa. Super. Page 485]

This appeal arises from an action in equity which was commenced on February 21, 1975, wherein the Plaintiff sought specific performance on an agreement for the sale of land. The case was tried on June 6, 7 and 8, 1977, in the Court of Common Pleas of the 39th Judicial District, Fulton County Branch. On September 22, 1977, a Decree Nisi was entered granting the Plaintiff's prayer for specific performance. The Appellant, who was the Defendant at trial, filed exceptions to the Adjudication and Decree Nisi. After hearing argument on the exceptions the Court en Banc issued a Final Decree, again ordering specific performance.

[ 274 Pa. Super. Page 486]

The record shows that on February 22, 1972, Appellant granted an option to Appellee, giving him the right to purchase approximately 137 acres of land in Brush Creek Township, Fulton County, Pennsylvania, owned by Appellant, for a total purchase price of $18,000. The option was for a term of three years. On January 10, 1973, and again on January 8, 1975, Appellee gave notice of his intention to exercise the option. After Appellant refused to transfer title to the land, Appellee filed his Complaint.

On this appeal, Appellant advances several different arguments in support of her claim that specific performance should not have been decreed. We find no merit in any of the claims raised.

The Appellant first claims that the Chancellor abused his discretion in refusing to permit the Appellant to amend her Answer and New Matter. The record shows that prior to the actual trial in this case, the pleadings had been closed for some two years. Moreover, the trial court had engaged in extensive pretrial conferences with counsel to sharply define the issues and arguments to be considered. Shortly prior to trial, without permission of the Appellee and without the leave of or notice to the Court, the Appellant filed an amended Answer and amended New Matter raising a rule against perpetuities argument. At the commencement of the trial, the Appellee moved that such amended pleadings be stricken and the Chancellor granted that Motion. During the trial, at the conclusion of the Plaintiff's presentation of his case-in-chief, the Appellant sought permission to amend her Answer and New Matter, again attempting to raise the rule against perpetuities defense. The Chancellor denied that request, and it is now the Appellant's claim that this mid-trial denial of amendment by the Chancellor was an abuse of discretion.

We can discern no abuse of discretion by the Chancellor in refusing to permit the Appellant's second belated attempt to raise a defense, by amendment of pleadings, which had not been raised at any time during pretrial proceedings in the case or since the pleadings had been closed some two years previously. The Appellant had clearly

[ 274 Pa. Super. Page 487]

    failed to comply with Pennsylvania Rule of Civil Procedure 1033*fn1 in filing her proposed amendment shortly prior to trial. The lower court's refusal to permit Appellant to accomplish the same end by a further attempt at amendment during the course of the trial was obviously not an abuse of the broad discretion granted ...


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