J-A03012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JEANNE R. HEYMANN IN THE SUPERIOR COURT OF
PENNSYLVANIA
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(s): 08 EQ 000659
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 18, 2015
Appellants, Andy L. Miller, Ida A. Miller (collectively, the Millers),1
David M. DeCristo, Amy DeCristo, Randy L. Castle, and Darlene J. Castle
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Appellants Andy and Ida Miller did not file a brief in this matter. Instead,
on August 25, 2014, the Millers filed a letter stating “in lieu of filing their
own brief in the above-referenced matter, Appellants, Andy and Ida Miller,
hereby join in, and adopt by reference, the arguments set forth by additional
Appellants, DeCristo and Castle set forth in their brief under cover of July
22, 2014.” Pennsylvania Rule of Appellate Procedure 2137 states “[i]n cases
involving more than one appellant or appellee, including cases consolidated
for purposes of the appeal pursuant to Rule 513 (consolidation of multiple
appeals), any number of either may join in a single brief, and any appellant
(Footnote Continued Next Page)
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(collectively, Additional Defendants), appeal from the December 17, 2013
order granting summary judgment in favor of Appellee, Jeanne R. Heymann,
and denying Appellants’ cross-motion for summary judgment. After careful
review, we affirm in part, reverse in part, and remand for further
proceedings.
The trial court set forth the relevant factual and procedural history as
follows.
In early August, 2008, [the] Millers were
seeking bids to purchase the subject property
[specifically, a house, a barn, and approximately 53
acres in Leroy Township, Bradford County,
Pennsylvania] whereby bidder would complete a “bid
sheet,” the form of which was prepared by [the]
Millers. [Heymann] submitted a written bid of
$285,000.00 the first week of August. This bid was
rejected by [Mr.] Miller. Thereafter, [] Mr. Miller
requested [Heymann] to increase her offer.
[Heymann] orally increased her offer to
$300,000.00. Mr. Miller rejected this bid as well, but
asked her to come to [the] house. While at the
Miller home, sitting at a picnic table, [Heymann]
offered $305,000.00. Together [Mr.] Miller and
[Heymann] prepared a new bid sheet. Mr. Miller
admitted that he told Plaintiff that he would accept
the offer of $305,000.00. The record reflects that
thereafter, the parties discussed and agreed to other
details as follows:
a. Arrangements for removal of a grave[;]
b. A closing date of October 15;
_______________________
(Footnote Continued)
or appellee may adopt by reference any part of the brief of another. Parties
may similarly join in reply briefs.” Pa.R.A.P. 2137. As such, we deem the
Miller’s August 25, 2014 letter a proper exercise of Rule 2137.
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c. [The] Millers have right to possess property
for up to 60 days after closing[;]
d. Closing costs would be “split” “the normal
way”[.]
[Mr.] Miller also admitted that he made notes of the
meeting setting forth the above details.
Thereafter, [Mr.] Miller advised that his
attorney would prepare a sales agreement. [The
Millers’] attorney prepared an agreement of sale
containing the terms which was orally agreed to and
[the] Millers signed [the written sales agreement] on
September 5, 2008. This was telefaxed to
[Heymann]’s attorney, Attorney Evan S. Williams,
III, by [Mr.] Miller’s attorney. [Mr.] Miller agreed
that the September 5, 2008, sales agreement
contained all the terms discussed. [Heymann],
through her attorney’s secretary, raised certain
deficiencies in the written document as follows:
1. Real estate description, providing the
township, tax parcel numbers and acreage
pursuant to said tax parcel number;
2. That $500.00 earnest money to be non-
refundable, a term which [the] Millers agree
was not part of the oral agreement ([] rather,
the $500.00 deposit would not be refunded if
[Heymann] “backed out[]”[);]
3. That the document should provide that
Millers pay utilities until they vacate premises;
4. That time is of the essence clause was not
part of the oral agreement and [Mr.] Miller
agrees with this[;]
5. That the agreement should state that all oil,
gas and mineral rights are to be transferred.
However, the document does already provide
for this; and
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6. That the law requires a property disclosure
statement before the buyer could sign the
agreement, 68 Pa. C.S.A. § 7301, et seq.
Various other paragraphs that are standard to
a sales agreement were also in the agreement and
Mr. Miller testified that those various items were
discussed and agreed upon. There were also other
paragraphs set forth in the agreement for sale that
had not been discussed or agreed to (i.e. prohibition
against assignment of agreement). The memo does
not state that the original terms agreed to are
rejected or that [Heymann] did not intend to proceed
with the agreement that was reached by her and
[the] Millers or add new terms and conditions to
create a counter offer. The Memo was clarifying the
parties[’] oral agreement.
On September 6, 2008, [Heymann] purchased
twenty (20) acres close to the subject property from
[the] Millers’ son and daughter-in-law [and] Mr.
Miller was present at the time of purchase.
On or about September 12, 2008, [H]eymann
beca[me] aware that the Millers were not going to
sell her the property. She therefore filed a Praecipe
for Writ of Summons and a Lids [sic] Pendens
against the [Millers] and [the subject property] on
September 12, 2008.
As a result of the requested clarifications, [the]
Millers never followed through with the transaction
and subsequently sold the real estate to Additional
Defendants DeCristo and Castle.
[Heymann] contends that the bid sheet, along
with the sales agreement signed by [the] Millers
amounts to a contract and is seeking specific
performance. [A]dditional [D]efendants have
purchased the real estate subject to the action for
specific performance as set forth in their deed.
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[The] Millers assert that there was never a
written agreement. It is their contention that the
changes made by [Heymann] to the sales agreement
amounted to a rejection and a counter-offer, which
was never accepted. As such, they claim the
agreement fails to meet the requirement of the
Statute of Frauds. Further, Additional Defendants
assert that as a result, there was never a meeting of
the minds.
Trial Court Opinion, 12/17/13, at 1-4 (internal citations omitted).
On October 28, 2008, and amended on November 13, 2008, Heymann
filed a complaint against the Millers for specific performance based on the
written contract for purchase of the subject property for $305,000.00. On
April 7, 2010, the Millers filed a motion for summary judgment. On
December 10, 2010, following oral argument, the trial court granted
summary judgment in favor of the Millers on the basis that Heymann had
failed to join Additional Defendants DeCristos and Castles.2 On January 10,
2011, Heymann filed a notice of appeal.
By judgment order, this Court reversed the trial court orders on
October 26, 2011, holding the trial court erred by granting summary
judgment based solely on Heymann’s failure to join an indispensable party
and remanded for the trial court to dismiss Heymann’s complaint without
prejudice and order Heymann to join the indispensable party. Heymann v.
Miller, 37 A.3d 1246 (Pa. Super. 2012) (unpublished judgment order).
____________________________________________
2
The transcript of the argument held on the original motion for summary
judgment is not part of the certified record.
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Thereafter, on December 16, 2011, the trial court entered an order granting
Heymann’s motion to join Additional Defendants DeCristos and Castles. On
December 22, 2011 Heymann filed a new complaint for specific performance
against the Millers, DeCristos, and Castles, on the same basis as her original
complaint. Heymann subsequently filed a motion for summary judgment on
February 26, 2013. On March 15, 2013, the DeCristos and Castles filed a
cross-motion for summary judgment which was joined on May 29, 2013 by
the Millers. Argument was held on May 17, and July 19, 2013, and on
December 17, 2013, the trial court granted summary judgment in favor of
Heymann and denied the cross-motion for summary judgment filed by
Additional Defendants and joined by the Millers. On January 10, 2014,
Additional Defendants filed a timely notice of appeal, and on January 13,
2014, the Millers filed their timely notice of appeal.3
On appeal, Appellants raise the following issues for our review.
[1.] Did the Court of Common Pleas for Bradford
County err in granting the [m]otion for [s]ummary
[j]udgment of Appellee, Jeanne R. Heymann?
[2.] Did the Court of Common Pleas for Bradford
County err in denying the [m]otion for [s]ummary
____________________________________________
3
Additional Defendants, the Millers, and the trial court have timely complied
with Pennsylvania Rule of Appellate Procedure 1925. Although Additional
Defendants and the Millers filed separate Rule 1925(b) statements, they
raise identical issues on appeal. Further, in lieu of a Rule 1925(a) opinion
the trial court adopts its December 17, 2013 opinion, as it addresses the two
issues raised on appeal.
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[j]udgment of Appellants, David M. De[C]risto, Amy
De[C]risto, Randy L. Castle and Darlene J. Castle?
Appellants’ Brief at 9.
Our standard of review of an order granting summary judgment is well
settled. Our task is “to determine whether the trial court abused its
discretion or committed an error of law[,] and our scope of review is
plenary.” Rodriguez v. Kravco Simon Co., --- A.3d ---, 2015 WL 720553,
at *1 (Pa. Super. 2015) (citation omitted).
In evaluating the trial court’s decision to enter
summary judgment, we focus on the legal standard
articulated in the summary judgment rule. Pa.R.C.P.
1035.2. The rule states that where there is no
genuine issue of material fact and the moving party
is entitled to relief as a matter of law, summary
judgment may be entered. When the non-moving
party bears the burden of proof on an issue, he may
not merely rely on his pleadings or answers in order
to survive summary judgment. Failure of a non-
moving party to adduce sufficient evidence on an
issue essential to his case and on which [he] bears
the burden of proof … establishes the entitlement of
the moving party to judgment as a matter of law.
Lastly, we will review the record in the light most
favorable to the non-moving party, and all doubts as
to the existence of a genuine issue of material fact
must be resolved against the moving party.
Cigna Corp. v. Exec. Risk Indem., Inc., --- A.3d ---, 2015 WL 836933, at
*3 (Pa. Super. 2015) (citation omitted). “[O]ur responsibility as an
appellate court is to determine whether the record either establishes that the
material facts are undisputed or contains insufficient evidence of facts to
make out a prima facie cause of action, such that there is no issue to be
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decided by the fact-finder.” Reinoso v. Heritage Warminster SPE LLC,
108 A.3d 80, 84 (Pa. Super. 2015) (en banc) (citation omitted).
Consequently, if the record contains evidence that would allow a fact-finder
to return a verdict in favor of the non-movant, then summary judgment is
not proper. Id.
Appellants’ statement of questions presented sets forth the general
proposition that the trial court erred in granting summary judgment in favor
of Heymann and denying Appellants’ motion for summary judgment.
Appellants’ Brief at 9. Appellants’ then divide the argument section of their
brief into six subsections addressing various trial court errors, including
those raised in the respective 1925(b) statements. For ease of review, we
elect to address the issues in the context they were framed in the 1925(b)
statements filed by the Millers and Additional Defendants. Accordingly, we
address Appellants’ claims that (1) the trial court erred in finding that the
statute of frauds was not “invoked”, and (2) that the trial court erred in
finding there was an oral agreement based on a “meeting of the minds” at
the picnic table between Mr. Miller and Heymann. Additional Defendants’
Rule 1925(b) Statement, 2/3/14; Millers’ Rule 1925(b) Statement, 2/5/14.
In their first issue, Appellants argue the trial court erred in concluding
the statute of frauds did not apply. Specifically, Appellants argue that
“[i]mplicit in the trial court’s grant of summary judgment to [Heymann] was
a finding that there was an oral agreement between the Millers and []
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Heymann.” Appellants’ Brief at 21. In support of this position, Appellants
observe that the trial court found that not only did Mr. Miller admit an oral
agreement was reached, but he signed an agreement of sale containing the
terms agreed to. Id. As such, Appellants aver that “[i]t is difficult to
understand how the [trial c]ourt below concluded that by tendering a
proposed written agreement of sale, Mr. Miller did anything but invoke the
Statute of Frauds.” Id.
“The Statute of Frauds instructs that a
purported transfer of an ownership interest in real
property is not enforceable unless evidenced in
writing and signed by the [party] granting the
interest.” Trowbridge v. McCaigue, 992 A.2d 199,
201 (Pa. Super. 2010). “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].” Id. A description of the
property will satisfy the Statute of Frauds where it
describes a particular piece or tract of land that can
be identified, located, or found. Phillips v. Swank,
13 A. 712 (Pa. 1888). “A detailed description is not
necessary, where the description shows that a
particular tract is within the minds of the
contracting parties, and intended to be conveyed.”
Id. at 715 (emphasis added). Regarding the
signature element, “there is no requirement in the
Statute [of Frauds] or the decisional law that a
signature be in any particular form. Instead, the
focus has been on whether there is some reliable
indication that the person to be charged with
performing under the writing intended to
authenticate it.” Hessenthaler v. Farzin, 564 A.2d
990, 993 (Pa. Super. 1989) (emphasis in original)
(holding mailgram which appellants sent to appellees
confirming sale of real estate constituted “signed
writing” for purposes of Statute of Frauds where
appellants identified themselves in mailgram,
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declared their acceptance, and identified property
and consideration involved). Importantly:
The purpose of the Statute [of Frauds] is to
prevent the possibility of enforcing unfounded,
fraudulent claims by requiring that contracts
pertaining to interests in real estate be
supported by written evidence signed by the
party creating the interest. Pennsylvania
courts have emphasized that the Statute is not
designed to prevent the performance or
enforcement of oral contracts that in fact were
made. Therefore[:]
[W]e should always be satisfied with
some note or memorandum that is
adequate … to convince the court that
there is no serious possibility of
consummating fraud by enforcement.
When the mind of the court has reached
such a conviction as that, it neither
promotes justice nor lends respect to the
statute to refuse enforcement because of
informality in the memorandum or its
incompleteness in detail.
Id. at 992–93 (internal citations and quotation
marks omitted) (emphasis in original).
Zuk v. Zuk, 55 A.3d 102, 107-108 (Pa. Super. 2012) (parallel citations
omitted).
At her deposition, Heymann testified that in the course of bidding on
the subject property a discussion occurred between Mr. Miller and Heymann
regarding raising her bid to over $300,000.00. Deposition of Jeanne A.
Heymann, 10/8/09, at 29. Heymann testified that the conversation resulted
in an oral agreement between the parties for the sale of the land for
$305,000.00.
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[Attorney for Appellants]
Q. Did Mr. Miller tell you that evening - - when you
completed the second bid sheet, our Exhibit 3, did he
tell you that evening that he would accept the
$305,000 offered in that bid?
[Heymann]
A. Yes.
Q. Specifically what did he say to you?
A. I’ll take it.
Id. at 31.
Heymann further noted that no formal written acceptance was
provided, and that Mr. Miller refused to accept the $500.00 deposit she tried
to give him. Id. at 32-33. She also testified that she believed the offer she
made had been accepted and the written agreement of sale was a mere
formality to be completed.
Q. Is it fair to say that you did not understand the
bid sheet to actually be an agreement of sale?
…
A. I made an offer. I felt it was accepted. It was to
be put in writing. I felt it was all being done in good
faith.
Q. You did not understand the bid sheet with your
signature on it in and of itself to be the final
agreement of sale?
A. Well, not the final agreement, correct. It was to
be put in writing.
Q. The bid sheet was a written offer; is that correct?
A. The bid sheet was a written offer.
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Q. You said you had an oral acceptance of that
offer.
A. Yes.
Id. at 35-36.
Heymann went on to state that she received a written agreement of
sale from the Millers which she reviewed and discovered various issues with.
Id. at 37. Heymann’s attorney revised the written agreement and sent it
back to the Millers’ attorney, who then contacted Heymann to advise her
that the Millers were not going to accept Heymann’s revised contract. Id. at
46. In her brief in support of the trial court’s grant of summary judgment in
her favor, Heymann argues that she intended to accept Mr. Miller’s written
agreement of sale and her suggested changes are proof of her “intent to
carry forward with the purchase of the Millers’ real estate.” Heymann’s Brief
at 14.
On the contrary, Mr. Miller testified that it was always his belief that
the sale would not be final until a written agreement had been signed and
accepted. In his deposition Mr. Miller testified as follows.
[Attorney for Heymman]
Q. Did you tell her you would take her $305,000
price offer?
[Mr. Miller]
A. [Heymann] offered a down payment. I refused
it. She asked, what if somebody comes and offers
you more and I said, I can’t make any promises.
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Q. Did you tell her you would take her $305,000
offer?
A. I said I would take this writing in to the
attorney’s office and get it put together.
Q. Did you say you would take the [$]305,000 is
what I am asking?
A. Verbally, yes.
Q. Okay.
A. We had the agreement - -
Q. You mean orally, yes.
A. Orally, yes.
Deposition of Andy L. Miller, 10/8/09, at 17.
Mr. Miller’s attorney drafted a written agreement of sale which was
signed by the Millers and forwarded to Heymann. Id. at 19. Mr. Miller
however, upon receipt of Heymann’s proposed changes, which he deemed a
counter-offer, ultimately rejected the same. As such, Mr. Miller believed
there was no agreement of sale.
Instantly, we conclude the trial court erred in granting summary
judgment on the basis that the statute of frauds was not invoked and that
an oral agreement existed; therefore, ordering specific performance by the
Millers was an error of law. The conflict between Heymann and Mr. Miller’s
accounts of whether an oral or written agreement was reached presents an
issue of material fact. There is an uncertainty as to whether the parties had
a true meeting of the minds. Specifically, whether the parties intended the
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oral discussion to constitute a binding contract, or whether said discussion
was to be reduced to writing. Because we conclude that there is an issue of
material fact, summary judgment was improper. Cigna, supra.
Additionally, we note that Appellants also argue that the trial court
erred in denying their cross-motion for summary judgment. Specifically,
Additional Defendants argue that Heymann’s addition of certain terms to the
Millers’ written instrument constituted a counter-offer, which the Millers were
free to reject. Therefore, Additional Defendants argue that no contract for
sale of the subject property was ever formed, and the trial court erred in
denying their cross-motion for summary judgment. However, for all the
reasons we have given, whether or not Heymann’s actions amounted to a
counter-offer is contingent on a factual finding that there was no meeting of
the minds during the oral discussion as Mr. Miller testified to in his
deposition. As Additional Defendants’ argument is contingent on the
resolution of a factual question, we conclude the trial court properly denied
their cross-motion for summary judgment.
Based on the foregoing, we conclude the trial court erred in granting
summary judgment in favor of Heymann. See Rodriguez, supra.
However, we also conclude the trial court properly denied Appellants’ cross-
motion for summary judgment. Accordingly, the trial court’s December 17,
2013 order is affirmed in part, reversed in part, and the case is remanded
for further proceedings, consistent with this memorandum.
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Order affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Justice Fitzgerald concurs in the result of the memorandum.
Judge Stabile files a concurring memorandum in which Justice
Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2015
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