Portnoy v. Brown

• Citation: 430 Pa. 401,243 A.2d 444
• Parties: Samuel PORTNOY and Albert Freedman, Appellants, v. Charles A. BROWN and Mary J. Brown, his wife.
• Decision Date: 01 July 1968
• Court: United States State Supreme Court of Pennsylvania

243 A.2d 444

430 Pa. 401

Samuel PORTNOY and Albert Freedman, Appellants, v. Charles A. BROWN and Mary J. Brown, his wife.

Supreme Court of Pennsylvania.

July 1, 1968.

Freedman, Borowsky & Lorry, Marvin J. Levin Philadelphia, Harry M. Sablosky, Norristown, of counsel, for appellants.

Gerald F. Glackin, Brunner, Conver & Glackin, Norristown, for appellee.

Before BELL C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. OPINION OF THE COURT

COHEN Justice.

This is an appeal from the dismissal of appellants' complaint in equity seeking specific performance of an agreement for the sale of real estate.

The complaint alleged that on July 25, 1956, appellants and appellee Charles A. Brown, executed a lease for certain real estate owned by appellees which lease provided in pertinent part as follows:

'Charles A. Brown (hereinafter called the lessor), doth hereby Let unto Samuel Portnoy & Albert Freedman (hereinafter called the lessee); All That Certain General Store and Gasoline Service Station & Auto Accessories located at Welsh Rd. & Limekiln Pike (Route 63 & 152) Horsham Twshp. Montg. Co. having 125 frontage and 150 depth With privilege of using additional grounds for the general use of the business and the parking of customer's cars.'

'Lessor hereby grants to Lessee an option to purchase the Demised premises at the current market value at the end of the final term, if the above option is exercised.' (Emphasis supplied.)

Appellees filed preliminary objections to the complaint alleging that the agreement was not susceptible to specific performance for the following reasons: (1) the agreement is ambiguous in that it does not adequately identify or describe the extent of the real property to be conveyed; (2) it fails to specify the purchase price or any method by which such purchase price is to be determined, and (3) the agreement does not meet the requirements under the Statute of Frauds since the signature of appellee, Mary J. Brown, does not appear therein.

The court below sustained appellees' preliminary objections without discussing the defense of the Statute of Frauds, and certified the case to the law side of the court, giving appellants the opportunity to file an amended complaint seeking damages. Appellants refused to amend their complaint and the court below dismissed the complaint. This appeal followed.

It is well settled that a decree of specific performance will not be granted unless the plaintiff is clearly entitled thereto and no adequate remedy at law exists. Roth v. Hartl, 365 Pa. 428, 75 A.2d 583 (1950); Merritz v. Circelli, 361 Pa. 239, 64 A.2d 796 (1949). Furthermore, it is an essential requirement that the agreement for the sale of real estate must designate with sufficient certainty that which is intended to be conveyed in order to entitle a plaintiff to specific performance. Suchan v. Swope, 357 Pa. 16, 53 A.2d 116 (1947).

With these basic principles in mind, we turn our attention to a consideration of appellees' objections concerning the description of the 'demised premises' and the indefiniteness of the purchase price (current market value). Appellees argue that the agreement sued upon is unenforceable in equity due to an inadequate description of the extent of the real estate covered by the option to purchase. This argument is primarily predicated upon that section of the option agreement which refers to the 'privilege of using additional grounds for the general use of the business and the parking of customer's cars.' It is urged that since the agreement is ambiguous with respect to whether or not these additional grounds are part of the demised premises, the agreement is not capable of being specifically enforced in equity. The court below, recognizing this apparent ambiguity, concluded that if it were to determine that the 'demised premises' encompassed the 'additional grounds', there would be great difficulty in ascertaining the size, shape and location of these grounds and as such the agreement would not be susceptible to specific performance. Appellees and the court below rely principally upon the case of Mrahunec v. Fausti, 385 Pa. 64, 121 A.2d 878 (1956), to support the position that the lease agreement with the option to purchase the 'demised premises' failed to specify with any degree of certainty that part of the real estate which was to be conveyed. In Mrahunec, we held that the option to purchase under the lease agreement 'cannot be construed to refer to that which plaintiff prays should be specifically conveyed to him, namely, 'title to the aforesaid described lot No. 78 and the adjoining 11 feet of lot No. 77' * * *.' A reading of the agreement in Mrahunec indicates that the leased premises differed substantially from that which plaintiff sought by way of specific performance. Since in that case the words 'said property' could at best refer to and include only the demised premises described in the lease, plaintiff's complaint seeking additional real estate in his action for specific performance had to be dismissed. In contrast to Mrahunec, appellants here only seek specific performance of that part of the real estate which is defined with sufficient particularity, namely: 'All That Certain General Store and Gasoline Service Station & Auto Accessories located at Welsh Rd. & Limekiln Pike (Route 63 & 152) Horsham Twshp. Montg. Co. having 125 frontage and 150 depth. * * *' It is reasonable to conclude that the 'demised premises' referred to in the lease agreement includes that portion of the real estate which appellants seek to acquire. In this respect the instant case is clearly distinguishable from Mrahunec, which distinction in our view dictates the conclusion that the lease agreement is sufficiently definite to be subject to specific performance, at least with respect to the...