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ROBERT J. RUSISKI AND MARGARET M. RUSISKI v. EDWARD M. PRIBONIC AND ANDREA E. PRIBONIC (09/25/86)

decided: September 25, 1986.

ROBERT J. RUSISKI AND MARGARET M. RUSISKI, HIS WIFE, APPELLEES,
v.
EDWARD M. PRIBONIC AND ANDREA E. PRIBONIC, HIS WIFE, APPELLANTS



Appeal from the Order of the Superior Court at No. 152 Pittsburgh, 1982, Dated March 30, 1984, Affirming the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 79-9621, dated FEbruary 4, 1982. 326 Pa. Superior Ct. 545, Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos,*fn* JJ. Flaherty, J., did not participate in the consideration or decision of this case. Nix, C.j., concurs in the result. McDermott, J., files a concurring and dissenting opinion.

Author: Papadakos

[ 511 Pa. Page 386]

Opinion OF THE COURT

The Appellants are the fee-simple owners of a fifty-acre tract in White Oak Borough, Allegheny County. They entered into an Agreement of Sale with the Appellees in which they agreed to sell the house in which they lived with its attendant outbuilding on a two-acre plot carved from their fifty-acre tract. The house and outbuildings in their intended geography were landlocked. To sell, therefore,

[ 511 Pa. Page 387]

    they offered access across their remaining land to the public roadway.

In the Agreement of Sale, that intention was embodied as follows:

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 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.

Both parties agreed and signed. A deed, prepared by the Lawyers Title Insurance Corporation for and signed by Appellants, was presented at settlement and contained, as agreed, a deeded provision establishing the access road. It reads, in pertinent part:

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.

At settlement, which the Appellants did not attend, a dispute arose over whether, in the original agreement, the term "owners" referred then to the "buyers" or "sellers." The gravamen of the dispute was whether the ground in which the easement inhered belonged to the "sellers" or the "buyers," that is, whether the buyers owned the ground and granted an easement to the sellers, or the sellers owned the ground and granted an easement to the buyers. Appellants' counsel, to obviate the problem, struck from the deed provision the following:

[ 511 Pa. Page 388]

. . . 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.

Hence, leaving the part that reserved ownership in the sellers and an easement in the Appellee-buyers.

It was the 11th hour and the buyers, faced with different wording, asked time to consider and evaluate the deletion. Three days thereafter, they agreed to the deletion, accepting the easement and not the ownership as was so plainly stated in the original Agreement of Sale. We say plainly stated because, when the Agreement of Sale was executed, the buyers were not then the owners, and no reading of that agreement could fail to distinguish that Appellants were then owners-sellers granting an easement over their land to the Appellees as buyers.

The problem here, however, does not turn upon that issue, because whatever the Appellant-sellers intended was agreed to by the Appellee-buyers. After the Appellee-buyers notified their acceptance to Appellants, they set a new closing date exactly one month after the original closing. The Appellants failed to appear, contending that the buyers breached the Agreement of Sale by refusing to close on the original settlement date. Three days later, the Appellees filed the instant suit seeking specific performance.

The Chancellor not only granted specific performance, but he also awarded damages of $48,852.00 reduced to present value of $31,441.64. He reduced the purchase price from $63,900.00 to $32,458.36 and added thereto $14,300.00, which the parties agreed was the value of improvements made to the property by Appellants after the signing of the agreement. Thus, the buyers were granted specific performance and were obligated to pay $46,758.36 instead of $78,200.00.

The Chancellor accomplished this arithmetic feat by presuming that the Appellees would have to overpay their

[ 511 Pa. Page 389]

    mortgage interest by 5% for a period of twenty years. At the original closing date, the buyers had obtained a twenty-year mortgage for $57,500.00 at 10.25% interest. Four years later, when the Chancellor issued his decree, the interest rate available was 15.25%. On appeal, the Superior Court affirmed.

Upon petition, we granted allocatur to consider both aspects of the lower court's decision. The precise issues on appeal are: 1) whether a seller who drafts an agreement of sale containing an ambiguity should be estopped from refusing conveyance when the buyer agrees within a reasonable amount of time to accept seller's interpretation; and 2) whether an equity court can award ...


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