dissenting:
I respectfully dissent to the majority’s determination that summary judgment was properly entered. I agree that appellee’s “gift” of the property to Sacred Heart Hospital did not trigger appellant’s first right of refusal. See Annotation, Landlord and Tenant: What Amounts to “Sale” of Property for Purposes of Provision Giving Tenant Right of First Refusal if Landlord Desires to Sell, 70 ALR3d *90203, 203-213 (1976 and 1988 supp.). Nonetheless, I find that a genuine issue of material fact remained.
Our scope of review in an appeal from an order granting summary judgment is well established:
Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). In passing upon a motion for summary judgment, a court most examine the record in the light most favorable to the nonmoving party. It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Any doubt must be resolved against the moving party.
Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 373-74, 528 A.2d 203, 205 (1987) citing Melmed v. Motts, 341 Pa.Super. 427, 429-30, 491 A.2d 892, 893 (1985) (citations omitted).
Instantly, appellant’s pleading and affidavits alleged, inter alia, that appellee-Wolf had engaged in prior attempts and negotiations to sell the property. The trial court failed to address these allegations, and I find this to be error. If in fact there were attempts to sell the property before it was transferred by gift to Sacred Heart Hospital, such offers of sale may have triggered appellants’ first right of refusal. Thus, appellant would then have been entitled to the opportunity of purchasing the property on the terms under which it was offered for sale.
At this juncture a material question of fact remains. If there were one or more prior offers of sale, the right of first refusal should be given specific performance. If there were not, or if the right is declined on the terms of such prior offers (if any), then the gift to Sacred Heart Hospital should be deemed valid.
Hence, I respectfully dissent.