## Facts

- The Moores owned real property at 212–214 First Avenue in Apollo, Pennsylvania, and had previously offered it for sale.
- On September 1, 1959, the Moores leased the property to Orlowski for one year at $35 per month.
- The written lease stated: “Lessee has the first chance to buy in case of sale of the property.”
- In mid-January 1960, Apollo Trust Company offered to buy the property for $5,000.
- The Moores promptly notified Orlowski that they would sell to the $5,000 buyer unless Orlowski exercised his first opportunity to purchase.
- Orlowski was late paying rent for December and January; when he paid in early February, the Moores again told him the property would be sold unless he arranged to buy it.
- Orlowski informed the Moores he had tried unsuccessfully to obtain a bank loan and would continue trying to raise the purchase money.
- On February 10, 1960, the Moores granted Apollo Trust Company a 60-day option to purchase the property for $5,000.
- After the option was granted but before conveyance, Orlowski told the Moores he had secured funds and requested conveyance to him.
- Apollo exercised its option; the Moores conveyed the property to Apollo by deed delivered March 9, 1960.

## Issues

1. Whether the lease clause giving the lessee the “first chance to buy in case of sale” created an enforceable right (option or right of first refusal) supporting specific performance.
2. Whether Orlowski timely and definitively exercised any such right upon notice of the $5,000 third-party offer.
3. Whether Orlowski’s delayed ability to tender performance, after the Moores granted a binding option to a third party, entitled him to specific performance against the sellers and the purchaser.

## Decision

- The Superior Court of Pennsylvania affirmed the decree dismissing Orlowski’s complaint in equity.
- The court held that the “first chance to buy” language did not, on these facts, support specific performance against the Moores and Apollo.
- The court concluded that Orlowski did not accept the $5,000 terms within a reasonable time after notice and therefore could not prevent the Moores from contracting to sell to Apollo.
- The court accepted the chancellor’s findings of fact and credibility determinations.

## Legal Principles

- A lease provision granting a tenant a “first chance to buy” is generally treated as a right of first refusal rather than a completed contract of sale.
- A right of first refusal requires timely, definite acceptance after the holder receives notice of a bona fide third-party offer on stated terms.
- When the holder, after notice, is unable or unwilling to accept within a reasonable time, the owner may proceed to sell to the third party on those terms.
- Specific performance requires the plaintiff to show timely readiness, willingness, and ability to perform; inability to obtain financing when performance is required defeats equitable relief.
- A later tender after the owner has entered a binding agreement with a third party does not revive the holder’s unexercised right.

## Conclusion

Because Orlowski did not timely accept the $5,000 purchase opportunity after notice and was not then able to perform, the Moores could grant and honor Apollo Trust Company’s option, and equity would not compel conveyance to Orlowski.


Orlowski v. Moore, 181 A.2d 692 (Pa. Super. Ct. 1962)