dissenting:
I dissent. While I tend to share the feeling of the majority on the equities of the case, I am regretfully unable to agree in their conclusion which I consider at the least premature.
In my judgment, it is necessary on the record presented to distinguish between two factors: the existence of the escrow fund and entitlement to the escrow fund. Penn Title concedes it has no defense based on a lack of a fund and perhaps it, as an interlocutory matter, should be required to literally create the fund. But evidently no one is concerned about Penn Title’s ability to pay any judgment.
Penn Title, recognizing its responsibility belatedly, says treat it as if Albani had paid the money. Countywide, as its supplemental memorandum in this Court makes clear, has “proceeded on the postulated assumption that Penn Title as a fiduciary holds a res in the form of $22,000” and Countywide “has refrained from seeking to recover the contested $22,000 based on causes of action which were not alleged in the Complaint, i. e., fraud and promissory estoppel.” It seems to me somewhat incongruous to accept Penn Title’s agreement that it should be treated as if Albani had created the fund and then hold Penn Title liable under paragraph 10 of the agreement for the forfeiture of the fund because Albani did not create the fund being forfeited.
Nor does it help to say that Albani has abandoned his interest in a nonexistent fund. This is not a case where Albani has made no claim of right. To the contrary, Albani has maintained that Countywide is not entitled to the forfeiture of any “escrow”. The fact that a bankrupt Albani is not spending money in this litigation over a nonexistent fund, while not commendable given the factual history, is certainly not hard to understand and hardly constitutes an abandonment. Albani simply has nothing to gain. It is Penn Title which is at risk. Penn Title’s concession of its responsibility to Countywide for any money due under the escrow contract cannot be extended to constitute an absolute grant to Countywide regardless of the terms of the escrow. And the very existence of this litigation in its present form rests on Penn Title’s concession.
The case is admittedly somewhat difficult to analyze due to two problem areas. First, *1186at the summary judgment stage, when the Superior Court effectively narrowed the issues and the scope of the trial, there was nothing in the record to indicate that the checks from Albani had never been negotiated by Penn Title. As I understand it, there was a total of $34,000 in unnegotiated checks. The $22,000 figure represents the portion for which Penn Title gave an express payment acknowledgment to Countywide and made the judicial concession which is the basis for the present posture of this litigation. It is hard to reconstruct the course of the litigation had the Superior Court at the summary judgment stage been aware of that effective misrepresentation and its character. This void is a key item in this appeal. To Countywide’s prejudice, the nonexistence of the fund was not treated at all by the Court below either on summary judgment or at trial.
It should be noted, however, that there has been no adjudication relating to the character of any complicity by Penn Title in Albani’s failure to deposit money into the escrow fund. Assuming such character to be one of mistake or negligence, one could easily surmise that honoring the escrow obligation, if any, might well suffice to satisfy Penn Title’s duty. Assuming such character to be aggravated, then Countywide’s request that punitive damages be considered may well have merit. The issue requires a trial.
The second problem area, as I see it, is that the Superior Court, in denying Countywide’s motion for summary judgment, in effect ruled as a matter of law that the extension, based on the subsequent $2,000 deposits, did not alter the provision that the agreement would be null and void and the parties restored to the status quo prior to the agreement if financing was not obtained. Thus, the sole issue tried was whether reasonable efforts were made to obtain financing. While there is nothing improper about pretrial rulings as a matter of law, it seems to me, in this instance, the ruling clearly foreclosed a genuine issue of fact as to what the parties actually contemplated at the time of the extension. Is it beyond genuine controversy that Countywide would agree to hold its property off the market for an extended period and run a substantial risk of receiving no compensation? At the time of the extension, what did the parties intend as to the relationship of the extension and the financing clauses in the agreement? Was it not Albani who undertook the risk of deposit forfeiture if financing was not obtained? At the very least, “it seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the circumstances.” Ebersole v. Lowengrub, Del.Supr., 180 A.2d 467, 470 (1962).
Thus, while I agree that the case must be reversed, I think on the present posture of the case the question of whether Countywide is entitled to the “escrow fund” depends on the intention of Countywide and Albani at the time of the contract extension. It is, in my judgment, a question of fact. As I see it, the majority opinion never reaches this question and thus never reaches the merits of this appeal.
I would reverse and remand the case for a new trial. Because of Countywide’s belated knowledge of the facts relating to the escrow fund, I would expressly authorize an opportunity to liberally amend the pleadings. I do not speculate on what the result would be or which party would benefit if other claims suggested by this appeal were made part of the full adjudication of the case.