Ciavarro v. Cost Control Marketing & Management, Inc.

603 A.2d 214, 412 Pa. Super. 273, 1992 Pa. Super. LEXIS 253
CourtSuperior Court of Pennsylvania
DecidedFebruary 5, 1992
DocketNo. 50
StatusPublished
Cited by2 cases

This text of 603 A.2d 214 (Ciavarro v. Cost Control Marketing & Management, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ciavarro v. Cost Control Marketing & Management, Inc., 603 A.2d 214, 412 Pa. Super. 273, 1992 Pa. Super. LEXIS 253 (Pa. Ct. App. 1992).

Opinion

WIEAND, Judge:

This is an appeal from a decree in equity which permitted rescission of a real estate transaction by the buyers. After careful review, we affirm.

Our standard of review in equity matters is narrow. We will reverse only when the chancellor has committed an error of law or has abused his or her discretion. See: Sack v. Feinman, 489 Pa. 152, 165-166, 413 A.2d 1059, 1066 (1980); Roberson v. Davis, 397 Pa.Super. 292, 295, 580 A.2d 39, 40 (1990); Hostetter v. Hoover, 378 Pa.Super. 1, 6, 547 A.2d 1247, 1249-1250 (1988), allocatur denied, 523 Pa. 642, 565 A.2d 1167 (1989). The chancellor is the ultimate fact finder. Roberson v. Davis, supra 397 Pa.Super. at 295, 580 A.2d at 40. His or her findings “will not be disturbed unless they are unsupported by competent evidence or are demonstrably capricious.” Id. at 295, 580 A.2d at 40. See also: Felmlee v. Lockett, 466 Pa. 1, 7, 351 A.2d 273, 276 (1976).

On or about October 12, 1987, Richard and Beverly Ciavarro, husband and wife, visited “Pocono Model Village World” in Coolbaugh Township, Monroe County. Pocono [276]*276Model Village World was being developed by Cost Control Marketing and Management, Inc. (Cost Control). It shared office space with Preferred Builders, Inc. (Preferred), which was building homes on lots sold by Cost Control. At this joint office, the Ciavarros met Martha Decker and told her they wished to purchase a home in the Poconos. They explained that they did not wish to purchase a lot separately but wanted a single transaction involving a lot improved by the construction of a home. Decker showed the Ciavarros several model homes and introduced them to a representative of Preferred Builders to discuss the construction of a home.1

On the same day, the Ciavarros executed a standard written agreement to purchase a tract of land from Cost Control for a price of thirty-five thousand ($35,000.00) dollars. Of this total amount, they were to make a down payment of $8,750.00.2 The balance was to be financed by a purchase money mortgage, which the Ciavarros signed the same day in favor of Cost Control. They also signed a collateral note and accepted notice of an assignment of the loan to Northeastern Bank of Pennsylvania.

On October 26, 1987, in response to repeated calls by Richard Ciavarro, Martha Decker prepared and the buyers and seller executed a supplemental document which they entitled “Letter of Memorandum.” It provided as follows:

Letter of Memorandum between Richard D. Ciavarro and Beverly L. Ciavarro (buyers), and Pocono Model Village World (sellers).
The Seller agrees that if buyers are unable to secure a construction loan based on their prevailing income and credit status that all monies made as a deposit on home-site K-039 A Pocono Country Place will be refunded. [277]*277The Buyer agrees to make a minimum down payment of 35% plus closing costs on the total house and land package, provide all necessary information required by the lender and that the amount of the mortgage applied for will not exceed the prevailing income to debt standards of the lenders.

A deed for Lot # 39, Section K, as shown on the plan of a Pocono Country Place, was subsequently executed. The deed contains a date of November 13, 1987, but the same was not recorded until June 24, 1988.3

On November 14, 1987, the Ciavarros contracted with Preferred Builders for the construction of a home on their lot. The contract price was sixty thousand, seven hundred ($60,700.00) dollars. On the same day, they signed a worksheet evidencing that an application would be made on their behalf for a mortgage in the amount of sixty-six thousand, nine hundred ninety ($66,990.00) dollars, repayable in thirty (30) years at a fixed rate of interest. A mortgage application was submitted to Citicorp Mortgage, Inc., which rejected it on March 9, 1988.

On May 27, 1988, the Ciavarros notified Martha Decker that they wanted their money returned because of the rejection of their mortgage application. Cost Control refused. The Ciavarros then employed counsel, who made a formal demand for rescission on July 12, 1988. On July 26, 1988, First Lenders Mortgage Services notified the Ciavarros that they had been approved for mortgage financing in the amount of sixty thousand ($60,000.00) dollars, payable in thirty (30) years, at a variable rate of interest. This mortgage commitment represented less than sixty-three (63%) percent of the total cost of the land and building.

The Ciavarros then commenced an action in equity against Cost Control and Preferred Builders to rescind all transactions involving the Pocono real estate. Prior to trial, their claim against Preferred Builders was settled, and the [278]*278action against it was discontinued. A trial ensued against Cost Control in which the court heard evidence from which the Ciavarros contended that they had been defrauded. The trial court made no findings regarding the claim of fraud and held that the Ciavarros had a right to rescind under the terms of their agreement because of their inability to obtain the required mortgage financing within a reasonable time. Therefore, the court directed Cost Control to repay the sum of $14,321.43, plus interest, and directed the Ciavarros to execute and deliver a deed for Lot 39, Section K, on Plan of a Pocono Country Place.

On appeal, Cost Control argues that (1) the supplemental agreement lacked consideration and (2) all agreements merged in the deed for the tract purchased by the Ciavarros. We reject these arguments for the following reasons.

The trial court found that the supplemental agreement between the parties was “in furtherance of the parties’ original agreement that the land purchase and home construction would be financed as one transaction.” When the original documents were prepared, Martha Decker used a standard form of agreement. This was ill-equipped to reflect the parties’ agreement, and she failed to modify it to state correctly that agreement. When Ciavarro repeatedly called Decker about this, she prepared a supplemental agreement which attempted to state the parties’ actual agreement.

Under these circumstances, the supplemental agreement was supported by sufficient consideration. “While it is true that the performance of an act which one party is legally bound to render to the other party is not legal consideration ... this rule is subject to an exception where the very existence of the duty is the subject of honest and reasonable dispute.” Blaisdell Filtration Co. v. Bayard & Co., Inc., 311 Pa. 6, 9, 166 A. 234, 235 (1933). See also: Restatement (Second) of Contracts § 74. Compare: Crown v. Cole, 211 Pa.Super. 388, 236 A.2d 532 (1967). In the instant case, where there was a good faith dispute about the terms of the parties’ agreement, that dispute was sufficient considera[279]*279tion for a supplemental agreement which modified the parties’ initial draft by adding a condition which was necessary to conform the agreement to the parties’ initial intent.

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Cite This Page — Counsel Stack

Bluebook (online)
603 A.2d 214, 412 Pa. Super. 273, 1992 Pa. Super. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ciavarro-v-cost-control-marketing-management-inc-pasuperct-1992.