No. 411 January Term, 1979, Appeal from the Order of the Superior Court of Pennsylvania filed April 12, 1978 at Nos. 175 and 184, October Term, 1979. Civil Action, Equity.
James C. Hogan, Easton, for appellants.
Joseph M. Reibman, Easton, H. Donald Busch, Bala Cynwyd, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., files a dissenting opinion, in which McDermott, J., joins.
This is an appeal from an order of the Superior Court affirming a decree of the Court of Common Pleas of Northampton County which directed appellants Wells Fargo Land and Mortgage Co. and Northeastern National Land Co. (Wells Fargo) to construct a theatre building pursuant to a lease agreement with appellee Easton Theatres, Inc. Because Wells Fargo has complied with the decree, we dismiss the appeal as moot.*fn1
The parties' agreement permitted appellee to seek financing for the construction project, provided that a mortgage be obtained "with the leased premises as the only security." Appellee obtained an offer of a loan from the Continental Bank, "evidenced by the bond or note of your companies secured by a first mortgage." Wells Fargo rejected the offer without first seeking to determine whether the requirement of a bond or note had been intended to impose personal liability or merely to afford procedural advantages to the lender in the event of default.*fn2
Appellee instituted the present proceedings upon Wells Fargo's refusal to accept the proposed financing. On October 17, 1978, the court of common pleas directed Wells Fargo to commence construction of a theatre building within thirty days or post a supersedeas bond in the amount of $200,000. Wells Fargo then appealed to the Superior Court, but did
not file a bond or seek an alternate stay. See Pa.R.A.P. 1732. While the appeal was pending, appellee sought to have Wells Fargo held in contempt for its noncompliance with the decree. On December 11, 1978, the court of common pleas denied appellee's request, concluding "that it is not in the best interest of either side for construction to commence pending appeal . . . [and] that a supersedeas bond is the least burdensome remedy." Nonetheless, Wells Fargo continued to refuse to file a bond or begin construction.
On May 7, 1979, after the Superior Court had affirmed the decree of specific performance, the court of common pleas found Wells Fargo in contempt. The Superior Court denied Wells Fargo's petition to stay the order of contempt, and at some time thereafter construction was commenced. The theatre building has been open for business since December 21, 1979.
Despite its compliance with the decree, Wells Fargo seeks a reversal of the decree on the theory that it acted properly in summarily rejecting the Continental offer. Wells Fargo also seeks a remand of the record for the fashioning of additional "appropriate relief." Presumably the latter request for relief reflects Wells Fargo's belief that it has been harmed by its having to construct the theatre at 1979 prices, instead of prices in effect in 1973, when the building was to have been built.*fn3
We are not persuaded that either request for relief can survive in the face of Wells Fargo's compliance with the court's decree. ...