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filed: December 29, 1988.


Appeal from the Order Entered April 19, 1988 in the Court of Common Pleas of Bucks County, Civil No. 86-004147-13-1.


William J. Brennan, King of Prussia, for appellants.

William J. Bolla, Doylestown, for appellee.

Cirillo, President Judge, and Wieand and McEwen, JJ.

Author: Cirillo

[ 380 Pa. Super. Page 432]

This is an appeal from an order of the Court of Common Pleas of Bucks County entering judgment in favor of the plaintiff and against the defendants in the amount of $64,125.00. We affirm.

[ 380 Pa. Super. Page 433]

On December 28, 1982, appellee Earl Jamison executed an agreement of sale with appellant Concepts Plus, Inc. ("Concepts") for the purchase of a 1.1 acre tract of land in Solebury Township, Bucks County. The contract price was $67,500.00. Jamison paid the entire purchase price as a downpayment pursuant to the agreement of sale. Defendant Michael G. Lamelza guaranteed the obligation of Concepts to return the deposit money if Jamison was unable to secure the necessary permit from township authorities.

Pursuant to Paragraph (b) of the agreement of sale, Jamison was responsible for obtaining from the Solebury Township Board of Supervisors all necessary approvals and permits for the subdivision of the land. In addition, Paragraph (b) provided that defendant Concepts "will cooperate with Buyer in all ways reasonable for Buyer to obtain subdivision approval(s)." Paragraph 5(f) of the agreement provided that "In the event final settlement cannot be made by December 31, 1984 because of Buyer's inability to obtain final subdivision approval, as aforesaid, then all monies paid by Buyer to Seller shall be refunded to him with simple interest at the rate of ten (10%) percent per annum." The asterisk referenced at the end of Paragraph 5(f) provided that defendant Michael G. Lamelza, a principal of Concepts, personally guaranteed the return of monies to Jamison pursuant to the terms of Paragraph 5(f).

Prior to execution of the agreement, engineers of Concepts prepared the subdivision plan. Jamison made application to the Solebury Township Board of Supervisors for approval of the preliminary plan, and he hired John A. VanLuvanee, Esq., to represent his interests during the application process.

On September 20, 1983, the Solebury Township Board of Supervisors met and denied the subdivision application. Neither Jamison nor his attorney were at this meeting. The decision denying the plan was issued on September 29, 1983, and a copy was mailed to Jamison's counsel on October 5, 1983. Had Jamison wished to appeal this decision, the Pennsylvania Municipalities Planning Code would have

[ 380 Pa. Super. Page 434]

    required that such an appeal be filed within thirty days of the decision.

In September and October of 1983, Jamison and his attorney became aware that Concepts was in default of the mortgage, and that the mortgagee, Gertrude Bouchayer, had either threatened to institute, or had instituted, foreclosure proceedings against Jamison. Jamison's counsel recommended against appealing the Board's decision. Thus, final subdivision approval was never obtained, and Jamison demanded of both Concepts and Mr. Lamelza the return of his deposit plus ten percent interest from December 28, 1982. The appellants denied this request.

Jamison filed suit to recover the downpayment pursuant to the terms of the agreement. The appellants contend that they are not liable for the return of the down money because Jamison failed to exercise "due diligence" in obtaining approval of the subdivision plan. The trial court found that there was no express requirement in the contract obligating Jamison to exercise due diligence, nor could that requirement be implied. The trial court relied upon the case of Hanna v. Tremarco Corp., 31 D. & C. 2d 161 (1963), to support its finding.

Preliminarily, we note that appellate courts are not bound by decisions of the courts of common pleas. City of Philadelphia v. Price, 419 Pa. 564, 215 A.2d 661 (1966). In Hanna, the plaintiffs executed and delivered to defendant Tremarco Corporation an option to purchase land for use as an automotive service station at a price of $30,000.00. Gulf, acting as agent and attorney in fact for Tremarco, applied for a building permit from the building inspector. Four months passed and Tremarco was unable to secure a building permit. Tremarco advised the Hannas that it was extending the time for settlement pursuant to the terms in the option. Two months later, the building inspector denied the building permit, and the application was considered further by the Forest Hills Borough Council. The borough council also denied the permit. Thereafter, Tremarco, through Gulf, surrendered its rights under the option and

[ 380 Pa. Super. Page 435]

    refused to go through with the purchase, and the borough council rezoned the property from "commercial" to ...

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