No. 41 E.D. Appeal Docket 1983, Appeal from the Judgment entered January 7, 1983 by the Superior Court of Pennsylvania No. 613 Philadelphia, 1981, affirming the Order of the Court of Common Pleas of Lancaster County, Pennsylvania, No. 141, September Term, 1980
Sam Ferguson Musser, Lancaster, for appellant.
David E. Wagenseller, Lancaster, for appellees.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., dissents and would affirm, and in support thereof cites the Superior Court opinion in this case.
This is an appeal from the Superior Court's affirmance of the Lancaster County Common Pleas Court's grant to Appellees of a demurrer to Appellant's request for declaratory relief. We granted allocatur to consider a question which has heretofore not been addressed by this Court. Because we are in disagreement with both the Superior Court and the lower court's analysis of the case, we reverse and remand.
This action arises out of a land sale and purchase money mortgage between the two parties. Appellees sold to Appellant
certain lands which they owned in Lancaster County and personally financed the sale. The mortgage note contained the following repayment clause:
"Whereas, the Mortgagor [Appellant], by bond and/or note dated concurrently herewith, stands bound to pay the Mortgagee [Appellees] the just principal debt of THREE HUNDRED SIXTY THREE THOUSAND ONE HUNDRED TWENTY and 80/100 DOLLARS ($363,120.80), payable at the rate of Nineteen Thousand Dollars ($19,000.00) annually, commencing on April 1, 1979, and continuing each twelve (12) months thereafter until paid; the interest on the unpaid balance shall be payable at the rate of seven and one-half percent (7 1/2) per annum, payable annually, commencing April 1, 1979, and continuing each twelve (12) months, thereafter until the principal debt is paid in full as aforesaid. Interest shall begin accruing on the date of settlement."
The note was silent as to any right of prepayment of the debt.
Several months after closing on the property, Appellant entered into several sales agreements with various buyers to sell ...