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IRVIN ROSEN AND SUNNY ROSEN v. EMPIRE VALVE AND FITTING (02/06/89)

filed: February 6, 1989.

IRVIN ROSEN AND SUNNY ROSEN, H/W, APPELLANTS,
v.
EMPIRE VALVE AND FITTING, INC. AND PAUL SILVER, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4884 November 1987.

COUNSEL

Arthur S. Cavaliere, Philadelphia, for appellants.

Harold Rosenthal, Philadelphia, for Empire, appellee.

Paul Silver, Philadelphia, propria persona.

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

Author: Wieand

[ 381 Pa. Super. Page 349]

In this action to recover the down payment made by purchasers of real estate, the trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. The issue to be decided on appeal is whether the provisions of the contract permit a recovery of the down

[ 381 Pa. Super. Page 350]

    payment where a mortgage commitment, once issued, was later withdrawn.

On November 4, 1986, appellants, Irvin and Sunny Rosen, agreed to purchase from appellee, Empire Valve and Fitting, Inc., which agreed to sell, premises known as 1901 West Courtland Street, Philadelphia. The agreed price was $115,000. A down payment of $11,500 was made, and settlement was to be held on or before February 18, 1987. The agreement provided, in pertinent part, as follows:

4. This sale and settlement hereunder are NOT conditional or contingent in any manner upon the sale or settlement of any other real estate NOR subject to any mortgaging or financing except as hereinafter provided.

(a) Term and amount of mortgage required by Buyer: N/A years, $103,500.00

(b) Interest rate and type mortgage required by Buyer: Interest N/A %, ...


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