No. 152 Pittsburgh 1982, Appeal from the Order of February 4, 1982, Court of Common Pleas, Allegheny County, Civil Division at No. GD 79-9621.
Raymond Radakovich, Pittsburgh, for appellants.
Robert A. Seewald, Pittsburgh, for appellees.
Cavanaugh, Johnson and Montgomery, JJ.
[ 326 Pa. Super. Page 548]
This appeal arises from an equity action requesting specific performance of an agreement of sale for the purchase of improved real property.
Appellants Edward M. and Andrea E. Pribonic (Pribonics/appellants) are the owners of a tract of real property, an
[ 326 Pa. Super. Page 549]
improved portion of which they desired to sell. Appellees Robert J. and Margaret M. Rusiski (Rusiskis/appellees), plaintiffs below, entered into a sales agreement with the Pribonics on December 2, 1978 for the purchase of the improved property for the sum of $63,900.00. The Rusiskis also tendered $1,500.00 to the Pribonics in hand money at that time. Because the improved property was nearly landlocked by the remainder of the Pribonic's property, a rider was attached to the sales agreement to provide the Rusiskis with a right of way over a portion of the property retained by the Pribonics. The rider, drafted by counsel for the Pribonics, set forth:
Sellers agree at the time of the conveyance to grant buyers a right of way which includes roughly the last sixty feet of the driveway, leading from the acreage to McKee Road. This right of way is to be granted in the deed and is to be used solely by the buyers for the purposes of ingress and egress and it is clearly understood that the owners may, from time to time, use this portion of the land for water lines, sewer lines, electrical lines, gas and other utility functions.
The Rusiskis' mortgage application, in the amount of $57,500.00 was approved on January 9, 1979. Closing on the sale was then scheduled for March 9, 1979. Lawyer's Title Insurance Company prepared a deed, which included a right of way provision stating:
ALSO, together with a right in the grantees, their heirs and assigns, to use a driveway as presently located on property of grantors immediately abutting the premises herein described on the North for egress and ingress to McKee Road provided that grantors, their heirs and assigns, hereby reserve the right to use the property over which the driveway runs for water lines, sewer lines, electrical lines, gas and other utility functions so long as said reservation does not interfere with grantees' right of ingress and egress.
[ 326 Pa. Super. Page 550]
At the closing,*fn1 counsel for the Pribonics indicated to the Rusiskis that this language in the deed regarding the right of way was unsatisfactory, alleging that the right reserved for utility lines, etc. was intended to apply to the Rusiskis, not the Pribonics (grantors). Counsel for the Pribonics therefore scratched out the proviso and tendered the deed to the Rusiskis. The Rusiskis refused to accept the altered deed, but indicated they would accept any deed consistent with the terms of the agreement of sale.
A new deed was subsequently prepared by the Pribonic's counsel and a new closing date scheduled, however the Pribonics refused to sign the new deed, claiming the prior misunderstanding was a breach of the agreement. The Rusiskis were prepared to close at this second scheduled closing and willing to accept whatever language the Pribonics required in the right of way provision, but neither the ...