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LEO COLAROSSI AND SHIRLEY COLAROSSI v. ERNEST N. FABER AND FRANCIS J. FABER (12/03/86)

filed: December 3, 1986.

LEO COLAROSSI AND SHIRLEY COLAROSSI, HIS WIFE, APPELLANTS,
v.
ERNEST N. FABER AND FRANCIS J. FABER, CO-EXECUTORS OF THE ESTATE OF CECILIA T. FABER AND EMERYVILLE TRUCKING, INC., A CORPORATION, APPELLEES



Appeal from the Decree entered July 16, 1985 in the Court of Common Pleas of Allegheny County, Civil No. GD 78-14396

COUNSEL

Joseph J. Bonistalli, Pittsburgh, for appellants.

Michael R. Ford, Pittsburgh, for Faber, appellees.

Emilio P. Fastuca, Pittsburgh, for Emeryville, appellee.

Brosky, Kelly and Roberts, JJ.

Author: Kelly

[ 359 Pa. Super. Page 260]

This is an appeal from the trial court's determination as to which of two leases presents a superior right to possession of the leasehold property. Appellants claim right of

[ 359 Pa. Super. Page 261]

    possession by way of a lease entered into in 1968 by the owner/lessor and appellant's assignors-in-interest. Appellees claim not merely the superior right of possession, but also right of first refusal, by way of a 1958 lease agreement between the owner's attorney-in-fact and appellee's assignors-in-interest. This appeal arises from a July 16, 1985 Order dismissing appellants' exceptions, and entering as final, on August 3, 1983, the Decree Nisi awarding appellees the right of first refusal to buy the leasehold.

The action commenced when Leo and Shirley Colarossi, appellants herein, filed a complaint in equity claiming superior right to possess certain real property situated in Marshall Township, Allegheny County. Appellees, Ernest and Francis Faber, are the sons of Cecilia T. Faber, the deceased owner of the disputed property. Appellee Emeryville Trucking, Inc., was the assignee of a leasehold interest in the property. Appellees denied appellants' claims of superior interest in the property. After a bench trial, the Honorable Ralph H. Smith, sitting as chancellor, entered an adjudication and Decree Nisi, which were embodied in the court's Order of August 3, 1983, dismissing appellants' complaint. Appellants' exceptions were denied on July 5, 1985 and the final decree entered on July 16, 1985. Appeal to this court timely followed.

The chancellor found the following to be the dispositive facts in this matter. Cecilia T. Faber was the owner of record of the previously mentioned plot of real estate in Allegheny County. On April 9, 1958 Farber signed a written power of attorney, appointing Clarence G. Barth, hereinafter Barth, as her attorney-in-fact. The pertinent portions of this agreement read as follows:

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that I, Cecilia T. Faber, have made, constituted, and appointed, and by these presents do make, constitute and appoint Clarence G. Barth of Ross Township, Pennsylvania, Attorney-at-law, my true and lawful attorney, for me, and in my

[ 359 Pa. Super. Page 262]

    name, place and stead, to let and demise my real estate in Marshall Township, Allegheny County, Pennsylvania, for the rental of $200.00 per month; Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do, if personally present; hereby ratifying and confirming all that my said attorney shall lawfully do or cause to be done by virtue hereof.

(Emphasis added).

On May 12, 1958 Faber, by Barth, entered into a lease with West Penn Forwarding Company, hereinafter West Penn, to lease for a period of 25 years the property in question. Attached to the lease was a piece of paper entitled "Exhibit B" which provided that the lease agreement could be sublet or assigned. It further provided that:

In consideration of the execution of this lease and rentals to be paid hereunder lessor agrees that at all times during the term of this lease or extension thereof, lessee shall have the right to buy the leased property in the event lessor wishes to sell it. Before selling the property to anyone else, lessor will first offer to sell it to the lessee at the price lessor is willing to accept, such offer to be made in writing and mailed to lessee's last known address.

(Emphasis added). Both documents were signed by Barth, "attorney-in-fact for Cecilia T. Faber."

Thereafter, in 1965, West Penn, by written document, assigned its lease to Wexford Motor Sales, Inc., hereinafter Wexford. The assignment agreement further stated:

5. It is a condition of THIS AGREEMENT:

     c. That both the written Power of Attorney, and the Lease and Exhibit "B", being Schedule "A" hereof, will be accepted by the Recorder's Office of Allegheny County, Pennsylvania, for recording, prior to the consummation

[ 359 Pa. Super. Page 263]

    of this agreement on or before August 1, 1965.

The lease, Exhibit "B" and assignment were never recorded. (Trial ...


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