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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-A03012-15


             [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.

                                     - 11 -
J-A03012-15



               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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J-A03012-15


            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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J-A03012-15


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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