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PETER MESSINA AND MARY T. MESSINA v. EDWARD C. SILBERSTEIN AND KAREN M. SILBERSTEIN (05/18/87)

filed: May 18, 1987.

PETER MESSINA AND MARY T. MESSINA, H/W, APPELLANTS
v.
EDWARD C. SILBERSTEIN AND KAREN M. SILBERSTEIN, H/W, AND DAVID FRAMPTON AND JOAN E. FRAMPTON, H/W



APPEAL FROM THE ORDER ENTERED APRIL 30, 1986 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CIVIL NO. 83-13011.

COUNSEL

Max W. Gibbs, Broomall, for appellants.

Joseph B. Vanwyk, Media, for appellees.

Cirillo, President Judge, and Rowley and Hoffman, JJ. Rowley, J., noted dissent.

Author: Cirillo

[ 364 Pa. Super. Page 589]

This is an appeal from a final decree of the Court of Common Pleas of Delaware County denying a prospective buyer's request for specific performance of a contract for the sale of land. We reverse.

On April 26, 1983, appellant Peter Messina agreed to purchase a portion of a tract of property owned by appellees Edward Silberstein and David Frampton. Messina gave the owners a $500.00 deposit. The balance of the purchase price was to be paid "at such time as the parties determine the square feet involved, but no later than May 2, 1983." The agreement also contained a clause specifying that "time is of the essence". The trial court found that neither party determined the square footage by May 2, 1983. Silberstein informed Messina that he and Frampton were having trouble getting good title and the buyer did not tender the balance of the consideration on May 2nd. Messina then calculated the square footage and tendered the balance on May 27, 1983 to attorney Edward Harkin, the drafter of the original sales agreement. Silberstein did not take possession of the funds nor did he indicate to Mr. Harkin that he considered the agreement void. The parties continued to discuss the proposed sale for several months until the sellers refused to perform. Messina brought an action in equity, seeking specific performance. The trial court refused the requested relief. The court noted that Colywyn Borough Code ยง 133-2 forbids a land-owner from subdividing his land without the borough's prior approval. The court stated that because no such approval was ever given, performance of the contract would be illegal and a court in equity may not order performance of an illegal bargain.

Appellant presents four issues for our review: (1) whether the attorney who drafted the agreement was the sellers' agent; (2) whether the trial court should have ruled extrinsic

[ 364 Pa. Super. Page 590]

    evidence of the sellers' intent inadmissible because of the parol evidence rule; (3) whether the "time is of the essence" clause was waived; and (4) whether the court should have ordered specific performance even though the borough had not approved the subdivision. For the reasons identified in the following discussion, we need only consider the last two of these issues.

A court may order specific performance of a contract to sell land when the agreement is complete and certain, where no adequate remedy at law exists and the vendor violates the terms of the sales agreement. Rusiski v. Pribonic, 326 Pa. Super. 545, 554, 474 A.2d 624, 629 (1984) rev'd. on other grounds, 511 Pa. 383, 515 A.2d 507 (1986). The trial court found that the agreement was complete and certain and susceptible to the remedy of specific performance.

However, the court ruled that the bargain violated the Colwyn Borough Code making it illegal and unenforceable. See Contractor Industries v. Zerr, 241 Pa. ...


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