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JOHN E. ABEL v. JAMES L. MILLER (11/30/81)

filed: November 30, 1981.

JOHN E. ABEL, JR. AND PAULINE W. ABEL,
v.
JAMES L. MILLER, AND BEVERLY J. MILLER, APPELLANTS



COUNSEL

William E. Haggerty, Lancaster, for appellants.

Kenneth C. Notturno, Lancaster, for appellees.

Cercone, President Judge, and Hester and Johnson, JJ. Hester, J., concurs in the result.

Author: Cercone

[ 293 Pa. Super. Page 7]

This is an appeal from an order denying permission to amend an answer and new matter in order to assert a purported defense not previously pleaded. We affirm.

On June 8, 1979 the parties entered into an agreement for the sale of real estate in East Hempfield Township, Lancaster County. Pursuant to the written agreement the Millers,

[ 293 Pa. Super. Page 8]

    the buyers, gave the Abels, the sellers, a non-interest bearing, non-negotiable note in the amount of six thousand dollars. The note was payable as part of the purchase price at the time of settlement, or as liquidated damages in the event of the Millers' default. Settlement was originally scheduled for August 1 but was twice postponed, first to August 31 and then to September 4. The Millers defaulted on the agreement on the latter date. On September 6, 1979 the Abels filed the instant action in assumpsit. The case was heard by a board of arbitrators on January 9, 1980 which found in favor of the Abels in the amount of six thousand dollars plus interest. From this award the Millers appealed to the court of common pleas. The Abels moved for summary judgment on February 21, 1980. Rather than respond to the Abels' motion the Millers filed a petition for leave to amend their answer and new matter. The petition represented that the Millers had retained new counsel after the initial answer and new matter were filed. It further claimed that the proposed answer and new matter asserted a defense to the original complaint the facts of which had not been made known to the Millers' first attorney. After appellees' answer and argument the court denied the Millers' petition.*fn1 The Millers took a timely appeal from this order.*fn2 The Abels filed with this Court a motion to quash the appeal as from an interlocutory order. The motion to quash was denied per curiam on February 11, 1981.

The defense the Millers hoped to assert in the would-be amended answer and new matter alleged fraud or negligent misrepresentation in the inducement to the contract. The Millers' proposed amended pleading would have alleged that preliminary to the execution of the land sale contract the

[ 293 Pa. Super. Page 9]

Abels represented that the Millers would be able to assume a promissory note which the Abels had given to their predecessors in interest in the property. The amended pleadings would then have alleged that the Millers entered into the agreement of sale relying on this representation, and that subsequent to the contract's execution the Abels informed the Millers that the note was not assumable. Finally, the amended pleading would have alleged that this misrepresentation about the possibility of the note's assumption was either fraudulently or negligently made. In short, the Millers hoped to assert a defense to the complaint which would have required testimony concerning events prior to the written agreement's execution, thereby raising questions pertaining to the so-called parol evidence rule. The asserted defense, if the court had permitted the amendment as requested, would have run directly counter to a provision in the written agreement which reads:

This Agreement, and BUYER'S obligation to make settlement --

(a) are NOT CONTINGENT upon BUYER'S obtaining financing of any kind or receiving settlement ...


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