Appeal From Order Entered August 6, 1986 Court of Common Pleas, Civil Division Lackawanna County, No. 84 of 48.
A. Richard Caputo, Wilkes-Barre, for appellants.
William J. Oliver, Scranton, for appellees.
Cavanaugh, Olszewski and Montemuro, JJ.
[ 363 Pa. Super. Page 586]
The issue in this case is whether the statute of frauds bars specific performance of a written agreement to grant a right of way over land deeded to the appellants pursuant to the agreement.
The appellees, Frank J. Valvano and Pamela B. Valvano, owned approximately 30 acres of land in Glenburn Township, Lackawanna County. They decided to sell approximately 10 acres fronting on Gravel Pond Road and the appellants, Joseph E. Galardi and Kaye L. Galardi, were interested in purchasing the land. The Galardi's retained a real estate broker who prepared an agreement of sale which referred to "Special Clauses," see attached Exhibit "A". The agreement of sale was signed by the Galardis. The agreement was rejected by the Valvanos whose attorney then prepared an "Amendment to Agreement of Sale" which was signed by Mr. and Mrs. Valvano and Mr. Galardi. It was not signed by Kaye L. Galardi. The amendment contained the following terms, inter alia:
3. Sellers hereby grant to Buyers the option to purchase adjoining lands of Sellers (approximately 20 acres) for the additional sum of $17,000.00. This option shall remain in force and effect for a period of two (2) years from the date of closing, providing that the mortgage hereinabove referred to is not in default. If at any time payments under the mortgage are in default for a period of sixty (60) days or if the mortgage is otherwise in
[ 363 Pa. Super. Page 587]
default in accordance with the provisions thereof, then the option herein granted shall terminate.
4. Buyers hereby grant unto Sellers a right of way for access from Gravel Pond Road to the optioned premises in the rear thereof which shall extend from Buyers' driveway to the said premises and shall be twenty (20) feet in width. The actual location of this right of way shall be as Buyers may designate providing the same provides reasonable access. No roadway shall be visibly opened as long as the above mentioned option remains in force and this grant shall terminate in the event that the option herein granted is exercised.
The amendment was part of the agreement of sale and set forth the purchase price, the manner of payment, provisions concerning a purchase money mortgage which the sellers were granting to the buyers, and the legal descriptions of the lands to be conveyed under the agreement of sale and the lands subject to the option referred to in paragraph 3 above. Although the amendment was not signed by Mrs. Galardi it provided a signature line for Mrs. Galardi with her name typewritten underneath the line.
The property described in the amendment to the agreement of sale referred to as "lands to be conveyed under agreement of sale" were conveyed to the buyers who executed a mortgage in favor of the appellees which was duly recorded in ...