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RICHARD C. FUISZ v. MARGARET FUISZ (08/28/89)

decided: August 28, 1989.

RICHARD C. FUISZ
v.
MARGARET FUISZ, APPELLANT



Appeal from the Order entered in the Court of Common Pleas of Northampton County, Civil Division, No. 1987-CE-651.

COUNSEL

Thomas P. Stitt, Easton, for appellant.

April L. Cordts, Easton, for appellee.

Tamilia, Popovich and Melinson, JJ. Popovich and Melinson, JJ., concur.

Author: Tamilia

[ 386 Pa. Super. Page 593]

This is a timely appeal by defendant Margaret Fuisz of a final decree entered on November 17, 1988 following the trial court's denial of her exceptions to a decree nisi entered after a non-jury trial on this matter. We affirm.

This action for specific performance of an oral "agreement" to convey real property was commenced on February 5, 1987 by appellee, appellant's son. Appellant responded on March 5, 1987 by filing an answer and new matter denying the existence of an agreement and averring that damages were an adequate remedy and raising the affirmative defense of the statute of limitations. A bench trial was held on January 27, 1988, in which the trial judge reserved judgment pending the filing of briefs. On September 22, 1988, the trial judge entered an adjudication and decree nisi granting appellee's demand for specific performance. Appellant's exceptions to the decree nisi were denied and dismissed and the decree nisi was made final on November 17, 1988. This timely appeal followed.

In rendering its adjudication and decree nisi, the trial court found the following facts to be undisputed by the parties:

[Appellant] and her husband, Anton Fuisz, purchased fifty (50) acres of land in Lower Nazareth Township. When the land was acquired in the 1930's, it contained a house that became the family dwelling. Later, in the

[ 386 Pa. Super. Page 5941960]

's, appellant and her husband gave various parcels from the tract of fifty (50) acres to their two sons, Richard and Robert Fuisz. These earlier gifts included fully executed deeds of conveyance. In 1972, [appellee], Richard Fuisz, built a separate home on the Lower Nazareth tract. It was located on acreage not previously deeded to him. Instead, with the full knowledge and approval of his parents, [appellee] constructed his personal residence on a portion of the tract still owned by his mother and father. In addition to permitting their son to expend money for improvements, [appellant] assisted him in his dealings with various contractors and material-men. In 1982, a deed was prepared for the [appellee's] homesite, however, he refused to accept the instrument as tendered because it did not include a right-of-way to his parents' driveway or the use of their barn. Since 1982, no renewed offer to convey has been made; and, therefore, plaintiff still lacks legal title to the land on which he erected his personal residence.*fn1

(Slip Op., Franciosa, J., 9/22/88, p. 2.)

On appeal appellant has raised five issues: 1) the trial court acted improperly in granting appellee relief on grounds other than those pled by appellee's complaint; 2) the court erred in its application of the law of specific performance to this case; 3) the court erred in failing to grant appellant's motion for a non-suit at the conclusion of appellee's case; 4) the court erred in failing to find a violation of the statute ...


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