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CARL CIMINA AND ELIZABETH CIMINA v. TONY BRONICH. TONY BRONICH V. CARL CIMINA AND ELIZABETH CIMINA (12/06/85)

filed: December 6, 1985.

CARL CIMINA AND ELIZABETH CIMINA, HIS WIFE, APPELLANTS,
v.
TONY BRONICH. TONY BRONICH V. CARL CIMINA AND ELIZABETH CIMINA, HIS WIFE, APPELLANTS



No. 496 Pittsburgh, 1983, No. 533 Pittsburgh, 1983, Appeals from the Order entered March 17, 1983, Court of Common Pleas, Fayette County, Civil Division at Nos. 1615 & 1693 of 1981.

COUNSEL

Richard DiSalle, Pittsburgh, for appellants.

Donald J. McCue, Connellsville, for appellee.

Brosky, Rowley and Johnson, JJ.

Author: Johnson

[ 349 Pa. Super. Page 401]

Carl and Elizabeth Cimina [hereinafter "the lessors"], appeal from the order of the trial court which: 1) dismissed the lessors' action in ejectment against their tenant, Tony Bronich [hereinafter "the tenant"], and 2) granted the tenant's prayer for specific performance of an option to purchase, contained in the lease. For the reasons set forth below, we affirm dismissal of the ejectment action, but reverse the granting of specific performance.

On September 15, 1970, a two-year lease agreement, with right of renewal for additional yearly terms, was entered into between the lessors and the tenant. The lease provided that the tenant was to pay the real estate taxes on the land leased to him. The relevant provision of the lease read:

7. During the term of this lease, Lessee will pay all real estate taxes levied and assessed against the subject premises, whether statements therefor are sent to Lessors or Lessee. If the real estate taxes on the leased premises

[ 349 Pa. Super. Page 402]

    are combined with real estate taxes on other property now owned by Lessors, then Lessee will pay only those taxes attributable to the leased premises and any improvements which may hereafter be erected thereon.

The lease also included an option to purchase, which could be exercised by the tenant at any time during either the original or the renewal terms.

For eleven years, from 1970 to June of 1981, the real estate taxes were paid by Elizabeth Cimina. Although she was a signatory to the lease, Mrs. Cimina testified that she was unaware of the tenant's responsibility to pay his share of the taxes. The tenant, on the other hand, contended that he asked the lessors at least once a year if he owed anything for taxes, but that the lessors always said "no". The trial court found that the ...


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