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LOYAL CHRISTIAN BENEFIT ASSOCIATION v. HAROLD J. BENDER (05/24/85)

filed: May 24, 1985.

LOYAL CHRISTIAN BENEFIT ASSOCIATION
v.
HAROLD J. BENDER, DONALD W. GRIESHOBER, JESS S. JIULIANTE, R.A. ORLANDO, CHESTER J. VENDETTI AND RICHARD A. VENDETTI, T/D/B/A PEACH STREET INVESTORS (76), APPELLANTS, V. CARL A. CANNAVINO, CITY OF ERIE, COUNTY OF ERIE, AND ERIE SCHOOL DISTRICT



Appeal from the Order of August 12, 1983 in the Court of Common Pleas of Erie County, civil Division, at No. 4429-A-1982

COUNSEL

Vedder White, Erie, for appellants.

David E. Holland, Erie, for Loyal, appellee.

Olszewski, Hester and Shiomos, JJ.*fn*

Author: Hester

[ 342 Pa. Super. Page 616]

This appeal was taken from an order sustaining a motion for summary judgment. For the reasons that follow, we affirm.

On August 28, 1981, appellants, Peach Street Investors, and appellee, Loyal Christian Benefit Association, entered into a written agreement whereby appellants agreed to assign their leasehold interest in approximately 10,500 square feet of land situated at 700 Peach Street in Erie, Pennsylvania in exchange for appellee's payment of $1,350,000.00. Included among appellants' interests was the option to purchase the land at the termination of the lease.

[ 342 Pa. Super. Page 617]

The purchase price was payable by appellee's assumption of a note due appellants' lessor in the amount of $1,200,000.00 with the balance payable in cash at closing.

The warranty provision of the written assignment included a statement that a real estate tax exemption for the subject property had been granted to the lessor/owner by the treasurer of the City of Erie. This exemption purportedly covered all city, county and school district real estate taxes for the years 1982, 1983 and 1984.

When appellee received 1982 tax bills from the three taxing units, it notified appellants. Appellants disclaimed liability for the tax bill; therefore, appellee paid $9,915.00 for the 1982 taxes. As a result, appellee filed an action for declaratory judgment in Erie County seeking judgment in the amount of $9,915.00 and a decree holding appellants and others liable for 1983 and 1984 real estate taxes.

Appellee's motion for summary judgment was granted by order dated August 12, 1983. The court ruled as a matter of law that appellants breached the warranty of tax exemption for the years 1982, 1983 and 1984. A money judgment was entered against appellants for $9,915.00, and appellants were further declared liable for 1983 and 1984 real estate taxes. Appellants perfected this appeal from that order.

A motion for summary judgment is properly sustained where the pleadings, discovery and affidavits reflect no genuine issue of material fact. Just v. Son's of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976); Toth v. Philadelphia, 213 Pa. Super. 282, 247 A.2d 629 (1968); Pa.R.C.P. 1035(b). In entertaining a motion for summary judgment, the record is viewed most favorably for the nonmoving party. All reasonable inferences must be drawn for the benefit of the respondent so that summary judgment will be granted only in those cases that are free of any doubt. Mallesky v. Stevens, 427 Pa. ...


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