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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
Former Justice specially assigned to the Superior Court.
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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
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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
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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
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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.
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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
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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,
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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.
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