Appeal from the Order of the Superior Court Dated November 17, 1987 at No. 1548, Pittsburgh, 1984, Denying Reargument of the Order of the Superior Court Dated September 22, 1987, which Vacated the Order of the Court of Common Pleas of Fayette County Dated November 9, 1984 and Remanded the Case to that Court for a New Trial on the Issue of Damages at No. 3139 of 1979 GD, Civil Division. 372 Pa. Super. 645, 534 A.2d 1123 (1987).
Robert L. Potter and E.J. Strassburger, Strassburger, McKenna, Gutnick & Potter, Pittsburgh, for appellants.
Richard DiSalle, Rose, Schmidt, Hasley & DiSalle, Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, former J., did not participate in the decision of this matter.
In this appeal, we are requested to review the order and memorandum opinion of the Superior Court which reversed and vacated the Appellants' damage award and remanded the matter to the trial court for a new trial on damages. We granted the Appellants' petition for allowance of appeal to consider whether the Appellee waived the issue of the
proper assessment of damages. The Appellants have steadfastly argued that they could recover the purchase price as damages under a sales agreement which permitted an election of the following remedies by Appellants upon Appellee's default: retaining the earnest money as liquidated damages; retaining the earnest money and proceeding with an action for specific performance; or applying the earnest money towards the appellants' loss on resale of the property and proceed with an action at law for damages.
Although many facts, both relevant and irrelevant to the disposition of this appeal, appear to be in dispute, the specific facts necessary for our consideration of this appeal are not. The parties entered into a sales agreement for the sale and purchase of a funeral home by agreement dated August 20, 1979. For reasons not germane to this appeal, the Appellee (Buyer) refused to complete the sales transaction resulting in the Appellants' (Sellers) initiating a law suit in equity for specific performance. By order dated April 16, 1980, the trial court granted the Appellee's preliminary objections, dismissed the Appellants' complaint in equity and, certified the case to the law side of the court and granted the Appellants leave to amend their complaint to an action at law. In their action at law, the Appellants requested from the Appellee payment of the purchase price ($400,000) after giving the Appellee credit for the initial deposit ($50,000). At the conclusion of the trial, the jury awarded the Appellants $350,000. In her post-trial motions, the Appellee alleged the trial court erred in refusing to instruct the jury as follows:
If you determined that Anthony and Angela M. Mendicino and Kathryn M. Rendina had a binding contract, then you may award damages to the plaintiffs as being the difference between the full contract price and the market value of the property on the date of the breach of the contract, less any payments received. Trachtenburg v. Sibarco Stations, Inc., 477 Pa. 517 [384 A.2d 1209] (1978).
Record 59a. Instead, the trial judge refused the Appellee's requested point for charge and ...