J-A07020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALLEGHENY WOOD PRODUCTS, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MARY ANN MORGAN
Appellee No. 1333 WDA 2014
Appeal from the Judgment Entered September 18, 2014
In the Court of Common Pleas of Crawford County
Civil Division at No(s): A.D. No. 2011-1430
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 8, 2015
Appellant, Allegheny Wood Products, Inc. (AWP), appeals from the
September 18, 2014 judgment entered in favor of Appellee, Mary Ann
Morgan, on AWP’s action for specific performance for the sale of real estate.
After careful review, we affirm.
The trial court set forth the facts of this case as follows.
By letter dated June 14, 2011, AWP, through
its landman, Kevin R. Stout, submitted to Ms.
Morgan “an offer of $495,000 ($3,000.00/acre) for
165 acres of land, timber and [oil, gas, and mineral
(OGM)] rights located in Rockdale Township,
Crawford County, PA.” He further indicated that
“[t]he 165 acres is located on Tax Map 4022,
parcels, 15, 29 and 30.” Additional terms were
specified, most notably that “Seller shall provide
clear and marketable title to the property.” Enclosed
was a cashier’s check in the amount of $51,000.00,
which Ms. Morgan endorsed and gave to her
attorney, William M. Hill, Jr., for deposit into his
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escrow account. AWP’s instructions were that “[t]his
deposit shall be credited upon the final purchase
price at closing or returned to AWP in the event the
sale is not finalized between AWP and seller.”
On June 29, 2011, Attorney Hill wrote to Bryan
D. Huwar, Esq., counsel for AWP, that “[b]ased upon
the letter from Kevin Stout I will prepare a sales
agreement after you have reviewed copies of the
[enclosed deeds, surveys, chain of title, oil and gas
lease, easement, and current tax bills].” He noted
that he did not believe that the oil and gas lease was
still valid, that the resolution of the easement was
unknown, and that “I talked with Norman
Sunderland who opined that an [a]ction to [q]uiet
[t]itle may solve the problem.” While otherwise
“agree[ing] with the contents of Kevin R. Stout’s
letter of June 14, 2011,” Attorney Hill added sundry
terms, such as prohibiting oil and gas exploration or
timbering until the time of closing, and again
referred to resolution of the title problem. Attorney
Huwar was asked to advise Attorney Hill of any
required information that had been omitted. He
never did.
The next, and final written communication
between the parties was Attorney Hill’s letter of
August 9, 2011 to Attorney Huwar, “reject[ing]” the
offer from two months earlier and returning the
deposit. He expressed Ms. Morgan’s willingness to
reimburse AWP its reasonable costs, and to consider
an offer to instead purchase portions of the timber.
Trial Court Opinion, 9/10/14, at 2-3 (citations and footnotes omitted).
On September 28, 2011, AWP filed a complaint for specific
performance of a purported written “agreement of sale” formed during the
course of the aforementioned negotiations on June 14, 2011. On May 29,
2014, at the conclusion of a bench trial, the trial court announced its verdict
finding in favor of Morgan and against AWP “in all respects.” On June 12,
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2014, AWP filed a motion for post-trial relief.1 Thereafter, on July 18, 2014,
the trial court entered an order denying said motion. On August 13, 2014,
AWP filed a notice of appeal.2
On appeal, AWP raises the following issues for our review.
A. The trial court erred, entering a non-jury trial
verdict against [AWP]’s complaint for specific
performance of real estate conveyance against
Morgan where the evidence at trial showed that a
contract was formed when Morgan accepted
[AWP]’s offer to buy by endorsement of the down
payment check.
1. The trial court erred in the application of the
law by failing to hold that [AWP]’s offer
letter and Morgan’s signature endorsement
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1
The motion for post-trial relief was timely, as AWP filed it ten days after
the trial court filed its decision with the prothonotary on June 2, 2014 and
mailed notice thereof to both parties. See Pa.R.C.P. 227.1(c)(2) (providing
that “[p]ost-trial motions shall be filed within ten days after … the filing of
the decision in the case of a trial without jury[]”).
2
Both the trial court and AWP have complied with Pennsylvania Rule of
Appellate Procedure 1925. Additionally, we note that AWP’s notice of appeal
was premature, as it purported to appeal from the July 18, 2014 order
denying post-trial relief, but its appeal properly lies from the entry of
judgment. Hart v. Arnold, 884 A.2d 316, 325 n.2 (Pa. Super. 2005)
(citation omitted), appeal denied, 897 A.2d 458 (Pa. 2006). On September
18, 2014, the trial court entered judgment pursuant to AWP’s praecipe for
entry of judgment. See Pa.R.C.P. 227.4(2). Therefore, this Court’s
jurisdiction was perfected at that time. See Pa.R.A.P. 905(a)(5) (providing
that “a notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof[]”); see also Am. & Foreign Ins. Co. v.
Jerry’s Sport Ctr., Inc., 948 A.2d 834, 842 n.1 (Pa. Super. 2008),
affirmed, 2 A.2d 526 (Pa. 2010) (concluding entry of judgment on praecipe
perfects jurisdiction even after appeal has been filed). We have corrected
the caption accordingly.
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and deposit of [AWP]’s check, read
together, formed a binding contract for the
purchase and sale of the identified real
estate.
2. The trial court erred, applying the law to the
facts by construing Morgan’s endorsement
of [AWP]’s check and deposit into Hill’s
client trust as evidence of “safekeeping,”
rather than as objective evidence of
Morgan’s acceptance of [AWP]’s offer to buy
the subject real estate.
3. The trial court erred as a matter of law
when, contrary to Pennsylvania law, it
construed any perceived ambiguity in
Attorney Hill’s confirmation letter as a
counteroffer, rather than as evidence of
Morgan’s acceptance of Allegheny’s offer to
buy her real estate.
4. The trial court erred in the application of law
when it held that the seller could void her
agreement or refuse to close the sale due to
perceived defects in her title, because the
buyer has the option of taking such title as
the seller may convey.
5. The trial court erred, failing to follow the
law, which provides that [a] [s]eller,
seeking specific performance, waives any
alleged title defects referenced by Morgan
as the basis for her counsel’s letter revoking
her offer to sell her property.
6. The trial court erred when it held that
[AWP] was not entitled to recover its costs
and expenses incurred after relying on
Morgan’s apparent acceptance of the
payment and confirmation letter.
[AWP]’s Brief at 3-4 (some capitalization removed).
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A request for specific performance is an appeal to the court’s equitable
powers. Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006).
Accordingly, our standard of review “is narrow and limited to determining
whether the findings of fact are supported by competent evidence, whether
an error of law has been committed or whether there has been a manifest
abuse of discretion.” Possessky v. Diem, 655 A.2d 1004, 1008 (Pa. Super.
1995) (citation omitted). Moreover, “in all equity matters … we must accept
the trial court’s factual findings and give them the weight of a jury verdict
where they are supported by competent evidence.” Liberty Place Retail
Assocs., L.P. v. Israelite Sch. of Universal Practical Knowledge, 102
A.3d 501, 506 (Pa. Super. 2014) (citation omitted).
In this case, all of AWP’s issues on appeal turn on whether there was a
written contract for the sale of real estate between Morgan and AWP.
Specifically, AWP contends, in its first three sub-issues, that Morgan, or her
attorney, accepted AWP’s June 14, 2011 offer, forming a contract. AWP
presupposes the existence of a contract between the parties in its next three
sub-issues. The trial court found there was no contract because Morgan did
not accept AWP’s offer to purchase the land. Trial Court Opinion, 9/10/14,
at 5-7. After careful review, we conclude the record supports the trial
court’s findings of fact, and the court did not err as a matter of law.
To obtain specific performance of a contract to transfer ownership
interest in real property, the Statute of Frauds requires the party seeking
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enforcement to present a written contract signed by the party granting the
interest. See 33 P.S. § 1; Trowbridge v. McCaigue, 992 A.2d 199, 201
(Pa. Super. 2010). “The [S]tatute [of Frauds] is not a mere rule of
evidence, but a limitation on judicial power to order specific performance of
a contract in the absence of a writing.” Target Sportswear, Inc. v.
Clearfield Found., 474 A.2d 1142, 1147 (Pa. Super. 1984) (citation
omitted). “A writing required by the Statute of Frauds need only include an
adequate description of the property, a recital of the consideration and the
signature of the party to be charged [with performing].” Trowbridge,
supra (citation omitted). “Whether the memorandum relied upon is a single
document or consists of several related or connected writings, the complete
terms of a valid agreement must be ascertainable therefrom with certainty
and must also disclose an intention to be bound. A mere indication of the
existence of an incomplete agreement is not sufficient.” Target, supra at
1148 (citations and quotation marks omitted).
Here, there is no written contract, signed by Morgan, to satisfy the
Statute of Frauds. Instead, the actions and correspondence of the parties
and their legal counsel evince ongoing negotiations. To form a contract,
there must be a meeting of the minds in the form of “an offer on one side
and an unconditional acceptance on the other. So long as any condition is
not acceded to by both parties to the contract, the dealings are mere
negotiations and may be terminated at any time by either party while they
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are pending.” Quiles v. Fin. Exch. Co., 879 A.2d 281, 285 (Pa. Super.
2005), quoting, Cohn v. Penn Beverage Co., 169 A. 768-769 (Pa. 1934).
AWP contends in its first two sub-issues that Morgan’s endorsement of
the $51,000.00 refundable deposit check that AWP enclosed with its June
14, 2011 offer letter and her deposit of the proceeds into her attorney’s
escrow account constituted Morgan’s acceptance of the offer. [AWP]’s Brief
at 9, 14. After reviewing the record, we conclude the trial court did not err
in finding “[Morgan’s] endorsement of the check by no means signified a
‘meeting of the minds’ as to all of the terms and conditions of AWP’s offer.”
Trial Court Opinion, 9/10/14, at 5. The June 14, 2011 letter from AWP to
Morgan stated that AWP “submits an offer of $495,000 ($3,000.00/acre) for
165 acres of land, timber and OGM rights located in Rockdale Township,
Crawford County, PA[.]” Letter, 6/14/11, at 1 (unnumbered). Regarding
the check, it provided “[e]nclosed you will find a cashier’s check in the
amount of $51,000.00 …. This deposit shall be credited upon the final
purchase price at closing or returned to AWP in the event the sale is not
finalized between [] AWP and [Morgan].” Id. Thus, the letter provided that
even if Morgan signed the check and escrowed the $51,000.00, the contract
was not finalized and was open to further negotiation. Accordingly, we
conclude Morgan’s endorsement of the check did not represent an intention
to be bound to a contract for the sale of the land. Instead, it showed the
existence of an incomplete agreement, which does not fulfill the Statute of
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Frauds. Target, supra. Therefore, AWP’s first two sub-issues are without
merit.
AWP alternatively asserts that the June 29, 2011 letter from Attorney
Hill was a confirmation letter showing Morgan’s acceptance. The trial court,
however, found the Hill letter either “invited continued negotiations” or
“implicitly rejected AWP’s offer to purchase clear title to Ms. Morgan’s
property, and constituted a counteroffer to sell such interests as she held in
the land, timber, and OGMs.” Trial Court Opinion, 9/10/14, at 6-7. After
careful review, we conclude the trial court did not err or abuse its discretion
in so finding.
The June 29, 2011 letter indicates that the parties were still involved
in negotiations toward preparing a final agreement of sale. Therein,
Attorney Hill indicates that he spoke with Attorney Huwar, counsel for AWP,
“last weekend,” and Attorney Hill will prepare an agreement of sale after
Attorney Huwar has reviewed various documents, including deeds, surveys,
a title search, a copy of the oil and gas lease and easement, and tax bills.
Significantly, in the title search section, Attorney Hill notes that Morgan does
not agree to deliver clear and marketable title and that an action to quiet
title may be necessary. Next, Attorney Hill indicates that he will prepare a
“timber deed using an agreed figure of acreage at $3,000 per acre and then
a general warranty deed (subject to the resolution of [title issues and
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encumbrances)].” Letter, 6/29/11, at 2. Attorney Hill also notes unresolved
issues regarding the oil and gas lease and easement.
The June 29, 2011 letter is not a confirmation of Morgan’s acceptance,
but one correspondence in ongoing negotiations. The letter indicates that
the agreement of sale has not been prepared because of several unresolved
issues. While AWP’s offer was to purchase 165 acres of land along with the
timber and OGM rights thereon, Attorney Hill’s letter indicates that only a
timber deed will be prepared because unresolved issues may prevent the
conveyance of the OGM rights. Further, the letter indicates that Morgan
may not be able to provide clear and marketable title. Both the OGM rights
and clear title were terms of AWP’s offer letter. Therefore, the June 29,
2011 letter does not reveal a meeting of the minds or demonstrate Morgan’s
unconditional acceptance of AWP’s offer. Instead, it shows the parties were
still engaged in negotiating the terms of the agreement of sale. Additionally,
Morgan did not sign the June 29, 2011 letter, so it cannot be used to meet
the Statute of Frauds. Accordingly, we conclude that the trial court did not
err as the June 29, 2011 letter was evidence of an incomplete agreement
and does not satisfy the Statute of Frauds. See Target, supra. Therefore,
AWP’s third sub-issue fails.3
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3
Given our conclusion that the trial court did not err in determining that
Morgan did not accept AWP’s offer, no agreement or contract existed
between the parties, and we need not address AWP’s three remaining sub-
(Footnote Continued Next Page)
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Based on the foregoing, we conclude that the trial court did not abuse
its discretion or err as a matter of law by finding that no contract was
formed, and, therefore, AWP was not entitled to specific performance. See
Trowbridge, supra; Possessky, supra. Accordingly, the trial court’s
September 18, 2014 judgment is affirmed.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
_______________________
(Footnote Continued)
issues, which are all premised on either an agreement or Morgan’s
acceptance.
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