Heymann, J. v. Miller, A. & I. & DeCristo, D. etal ( 2015 )


Menu:
  • J-A03012-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    JEANNE R. HEYMANN                                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ANDY L. MILLER AND IDA A. MILLER
    AND DAVID M. DECRISTO AND AMY
    DECRISTO; RANDY L. CASTLE AND
    DARLENE J. CASTLE
    APPEAL OF: DAVID M. DECRISTO AND
    AMY DECRISTO; RANDY L. CASTLE AND                      No. 95 MDA 2014
    DARLENE J. CASTLE
    Appeal from the Order entered December 17, 2013
    In the Court of Common Pleas of Bradford County
    Civil Division at No: 08 EQ 000659
    BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
    CONCURRING MEMORANDUM BY STABILE, J.: FILED NOVEMBER 18, 2015
    I concur with the result reached by the learned Majority, but I
    respectfully disagree as to the bases upon which the Majority reaches its
    decision.
    The Majority concludes the trial court erred in granting summary
    judgment to Heymann on the basis the statute of frauds did not apply and
    that material issue of fact exists as to whether there was an oral agreement
    between the parties.         Majority memorandum at 13-14.     I believe the
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-A03012-15
    Majority improperly applies the statute of frauds and improperly looks to see
    only if an oral agreement was reached to determine if specific performance
    may be granted to Heymann.
    Heymann moved for summary judgment for specific performance on
    the basis she reached an oral agreement with Miller for the purchase of the
    real estate, which the Millers memorialized in a signed writing. Motion for
    Summary Judgment, ¶5(a) and (b). In response, the Millers admitted there
    was an oral agreement, but averred there was an understanding that a
    formal agreement of sale would be prepared and agreed upon.            Millers’
    Answer to Plaintiff’s Motion for Summary Judgment, ¶5(a) and (d).         The
    Millers also admitted Heymann’s averments that the Millers subsequently put
    all the essential terms of the oral agreement into a writing signed by the
    Millers.   Id.   The Millers nonetheless alleged the oral agreement was
    incomplete and did not satisfy the statute of frauds. Id. The Millers likewise
    moved for summary judgment asserting there was no genuine issue of
    material fact that no binding enforceable sales agreement was entered into
    between the parties. The trial court granted summary judgment in favor of
    Heymann finding that the oral agreement between the parties was not
    barred by the statute of frauds, and that the additional terms Heymann
    sought to add to the written sales agreement did not invoke the statute of
    frauds.    In disposing of the parties competing motions for summary
    judgment, the trial court was required to resolve two questions: one,
    whether the oral agreement between the parties was barred by the statute
    -2-
    J-A03012-15
    of frauds, and two, if not, then whether there was a binding agreement of
    sale between the parties, and if so, what were the terms of that agreement.
    The statute of frauds, as it pertains to interests in lands, instructs that
    a transfer of an ownership interest in real property is not enforceable unless
    evidenced in writing and signed by the party creating the interest. 33 P.S.
    § 1, Hessenthaler v. Farzin, 
    564 A.2d 990
    , 992 (Pa. Super. 1989). While
    a formal memorandum or agreement of sale is not required under the
    statute of frauds, there must exist a writing that adequately describes the
    property, the consideration, and the writing must be signed by the party to
    be charged. American Leasing v. Morrison Co., 
    454 A.2d 555
    , 557 (Pa.
    Super. 1982).     While the statute of frauds requires a writing, an oral
    agreement is not barred by the statute of frauds so long as the oral
    agreement is embodied in a writing that satisfies the statute. See Beeruk
    Estate, 
    241 A.2d 755
    , 758 (Pa. 1968) (parol evidence that will was intended
    to embody the terms of a contract not barred by the statute of frauds). The
    statute of frauds, however, will bar enforcement of a writing if its terms are
    dependent upon another unsigned writing, or prior or subsequent oral
    admissions or conduct. See Target Sportswear, Inc. v. Clearfield
    Foundation, 
    474 A.2d 1142
    , 1148-50 (Pa. Super. 1984) (signed contract
    modified by letter and oral admissions and conduct for purchase of real
    estate barred by statute of frauds) (citing Brown v. Aiken, 
    198 A. 441
    , 447
    (Pa. 1938)).   “Where a written agreement is varied by oral testimony the
    whole contract in legal contemplation becomes parol.” Id. at 1149. When
    -3-
    J-A03012-15
    the writing is converted into an oral agreement, the statute declares it to ‘be
    void’. Id. In other words, if a contract is found to exist only by reference to
    other unsigned writings and/or oral testimony, the contract will be barred
    from enforcement by the statute of frauds.
    Instantly, the record on summary judgment reveals that Heymann and
    Mr. Miller orally agreed to Heymann’s purchase of the Millers’ property for
    the sum of $305,000.1         The parties agree that the essential terms of that
    oral agreement were put into the written sales agreement prepared by
    Millers’ counsel and signed by the Millers. I do not believe, as the Majority
    apparently does, that the trial court erred in finding the statute inapplicable
    in this case. Rather, I believe the issue requires additional fact-finding. The
    parties agree the written agreement contained the essential terms of the
    oral agreement, and thus, as required by the statute of frauds, the oral
    terms were reduced to a signed writing against the party to be charged. If
    the written sales agreement merely reduced the oral agreement to writing
    without any material modifications, the statute of frauds would not bar
    enforcement of the oral agreement. Nonetheless, it also is undisputed that
    the written agreement contained additional terms that were not a part of the
    ____________________________________________
    1
    While the oral agreement was reached between Heyman and Andy Miller,
    the sales agreement was signed by both Andy L. Miller and Ida A. Miller. No
    issue has been raised in this case as to Mr. Miller’s ability to negotiate on
    behalf of and to bind Ida. A. Miller to the oral agreement reached with
    Heyman.
    -4-
    J-A03012-15
    oral agreement.    As these additional written terms were contained in a
    signed writing, the statute of frauds likewise would not be a bar to their
    enforcement if agreed to by the parties.     The question remains however,
    whether the terms of the oral agreement were modified by the terms of the
    written agreement, and if so, whether an agreement still can be found to
    exist, and if so, what are the terms of the parties’ agreement.
    To form a contract, there must be an offer, acceptance, and
    consideration or mutual meeting of the minds between the contracting
    parties. Yarnell v. Almy, 
    703 A.2d 535
     (Pa. Super. 1997). An acceptance
    of an offer however, is not an acceptance if it materially alters the terms of
    the offer. Id.; see Thomas A. Armbruster, Inc. v. Barron, 
    491 A.2d 882
    (Pa. Super. 1985).     Not all conditions attendant to an acceptance are
    material, and conditions that are ministerial formalities would not defeat the
    finding of a valid offer and acceptance, and hence an enforceable contract.
    
    Id.
     If facts are in dispute, the question of contract formation is for a jury.
    
    Id.
    Here, the record on summary judgment reflects the parties reached an
    oral agreement for the purchase by Heymann of the Millers’ property. The
    Millers had their counsel reduce this agreement to a formal sales agreement.
    Heymann responded, but proposed a number of additional terms that a)
    Heymann’s counsel considered missing and deficient in the agreement, b)
    were standard to a sales agreement that Miller testified were discussed and
    agreed upon, and c) other paragraphs that had not been discussed and
    -5-
    J-A03012-15
    agreed to (i.e. prohibition against assignment of agreement). The trial court
    noted the memo by Heymann’s counsel to the sales agreement did not state
    the original terms agreed to were rejected or that Heymann did not intend to
    proceed with the agreement reached between her and Miller, or whether her
    additional terms and conditions were a counter offer.        Trial Court Opinion,
    12/17/13, at 1-4.
    It is apparent a number of scenarios, including the following, are
    possible to a finding of whether an enforceable agreement existed between
    the parties.   It is possible the oral agreement memorialized in the sales
    agreement is enforceable, if the sales agreement did not materially alter the
    terms of the oral agreement. In these circumstances, the statute of frauds
    would not bar enforcement of the agreement.           See Beeruk, supra.      If,
    however, the sales agreement materially altered the oral agreement, then
    the oral agreement would be barred by the statute of frauds, because no
    written   agreement   exists   to   confirm   the   oral   agreement.    Target
    Sportswear, 474 A.2d at 1148-50. In this latter case, the sales agreement
    could be considered a new offer.        If so, the parties entered a binding
    contract only if Heymann accepted the offer. To answer that question, the
    fact finder would have to determine whether Heymann’s subsequent memo
    constituted an acceptance of the offer or if Heymann’s additional terms
    materially altered the Millers’ proposal.     If Heymann’s response materially
    altered the terms of the Millers’ proposed sales agreement, the fact finder
    could consider Heymann’s response a rejection and counter offer.         Finally,
    -6-
    J-A03012-15
    there is the question raised by the Millers: was a mutually agreeable written
    sales agreement an express condition precedent of the oral agreement
    reached between the parties? On this latter point, we note the general rule
    that where an act mentioned in a contract is not expressly made a “condition
    precedent,” it will not be so construed, unless that clearly appears to be the
    intention of the parties. American Leasing, 
    454 A.2d at 559
    . Accordingly,
    I concur with the Majority that the trial court erred by concluding there was
    an enforceable agreement between the parties and in granting summary
    judgment, as there are material issues of fact that preclude summary relief.
    In conclusion, I agree with the Majority that the trial court erred in
    granting summary judgment on Heymann’s motion.              I also agree with the
    Majority that the trial court correctly denied summary judgment on the
    Millers’ motion, but disagree that the only relevant inquiry is whether there
    was a meeting of the minds on the oral discussion between the parties. As
    outlined above, I believe there are numerous other possibilities to the
    outcome of this case that raise genuine issue of material fact.
    For all of the foregoing reasons, I respectfully concur in the result
    reached by the Majority.
    Justice   Fitzgerald   concurs   in    the   result   of   this   concurring
    memorandum.
    -7-
    

Document Info

Docket Number: 95 MDA 2014

Filed Date: 11/18/2015

Precedential Status: Precedential

Modified Date: 11/18/2015