J-A03012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEANNE R. HEYMANN                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       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: 08 EQ 000659


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

CONCURRING MEMORANDUM BY STABILE, J.: FILED NOVEMBER 18, 2015

        I concur with the result reached by the learned Majority, but I

respectfully disagree as to the bases upon which the Majority reaches its

decision.

        The Majority concludes the trial court erred in granting summary

judgment to Heymann on the basis the statute of frauds did not apply and

that material issue of fact exists as to whether there was an oral agreement

between the parties.         Majority memorandum at 13-14.     I believe the

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*
    Former Justice specially assigned to the Superior Court.
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Majority improperly applies the statute of frauds and improperly looks to see

only if an oral agreement was reached to determine if specific performance

may be granted to Heymann.

      Heymann moved for summary judgment for specific performance on

the basis she reached an oral agreement with Miller for the purchase of the

real estate, which the Millers memorialized in a signed writing. Motion for

Summary Judgment, ¶5(a) and (b). In response, the Millers admitted there

was an oral agreement, but averred there was an understanding that a

formal agreement of sale would be prepared and agreed upon.            Millers’

Answer to Plaintiff’s Motion for Summary Judgment, ¶5(a) and (d).         The

Millers also admitted Heymann’s averments that the Millers subsequently put

all the essential terms of the oral agreement into a writing signed by the

Millers.   Id.   The Millers nonetheless alleged the oral agreement was

incomplete and did not satisfy the statute of frauds. Id. The Millers likewise

moved for summary judgment asserting there was no genuine issue of

material fact that no binding enforceable sales agreement was entered into

between the parties. The trial court granted summary judgment in favor of

Heymann finding that the oral agreement between the parties was not

barred by the statute of frauds, and that the additional terms Heymann

sought to add to the written sales agreement did not invoke the statute of

frauds.    In disposing of the parties competing motions for summary

judgment, the trial court was required to resolve two questions: one,

whether the oral agreement between the parties was barred by the statute

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of frauds, and two, if not, then whether there was a binding agreement of

sale between the parties, and if so, what were the terms of that agreement.

      The statute of frauds, as it pertains to interests in lands, instructs that

a transfer of an ownership interest in real property is not enforceable unless

evidenced in writing and signed by the party creating the interest. 33 P.S.

§ 1, Hessenthaler v. Farzin, 564 A.2d 990, 992 (Pa. Super. 1989). While

a formal memorandum or agreement of sale is not required under the

statute of frauds, there must exist a writing that adequately describes the

property, the consideration, and the writing must be signed by the party to

be charged. American Leasing v. Morrison Co., 454 A.2d 555, 557 (Pa.

Super. 1982).     While the statute of frauds requires a writing, an oral

agreement is not barred by the statute of frauds so long as the oral

agreement is embodied in a writing that satisfies the statute. See Beeruk

Estate, 241 A.2d 755, 758 (Pa. 1968) (parol evidence that will was intended

to embody the terms of a contract not barred by the statute of frauds). The

statute of frauds, however, will bar enforcement of a writing if its terms are

dependent upon another unsigned writing, or prior or subsequent oral

admissions or conduct. See Target Sportswear, Inc. v. Clearfield

Foundation, 474 A.2d 1142, 1148-50 (Pa. Super. 1984) (signed contract

modified by letter and oral admissions and conduct for purchase of real

estate barred by statute of frauds) (citing Brown v. Aiken, 198 A. 441, 447

(Pa. 1938)).   “Where a written agreement is varied by oral testimony the

whole contract in legal contemplation becomes parol.” Id. at 1149. When

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the writing is converted into an oral agreement, the statute declares it to ‘be

void’. Id. In other words, if a contract is found to exist only by reference to

other unsigned writings and/or oral testimony, the contract will be barred

from enforcement by the statute of frauds.

       Instantly, the record on summary judgment reveals that Heymann and

Mr. Miller orally agreed to Heymann’s purchase of the Millers’ property for

the sum of $305,000.1         The parties agree that the essential terms of that

oral agreement were put into the written sales agreement prepared by

Millers’ counsel and signed by the Millers. I do not believe, as the Majority

apparently does, that the trial court erred in finding the statute inapplicable

in this case. Rather, I believe the issue requires additional fact-finding. The

parties agree the written agreement contained the essential terms of the

oral agreement, and thus, as required by the statute of frauds, the oral

terms were reduced to a signed writing against the party to be charged. If

the written sales agreement merely reduced the oral agreement to writing

without any material modifications, the statute of frauds would not bar

enforcement of the oral agreement. Nonetheless, it also is undisputed that

the written agreement contained additional terms that were not a part of the


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1
  While the oral agreement was reached between Heyman and Andy Miller,
the sales agreement was signed by both Andy L. Miller and Ida A. Miller. No
issue has been raised in this case as to Mr. Miller’s ability to negotiate on
behalf of and to bind Ida. A. Miller to the oral agreement reached with
Heyman.



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oral agreement.    As these additional written terms were contained in a

signed writing, the statute of frauds likewise would not be a bar to their

enforcement if agreed to by the parties.     The question remains however,

whether the terms of the oral agreement were modified by the terms of the

written agreement, and if so, whether an agreement still can be found to

exist, and if so, what are the terms of the parties’ agreement.

      To form a contract, there must be an offer, acceptance, and

consideration or mutual meeting of the minds between the contracting

parties. Yarnell v. Almy, 703 A.2d 535 (Pa. Super. 1997). An acceptance

of an offer however, is not an acceptance if it materially alters the terms of

the offer. Id.; see Thomas A. Armbruster, Inc. v. Barron, 491 A.2d 882

(Pa. Super. 1985).     Not all conditions attendant to an acceptance are

material, and conditions that are ministerial formalities would not defeat the

finding of a valid offer and acceptance, and hence an enforceable contract.

Id. If facts are in dispute, the question of contract formation is for a jury.

Id.

      Here, the record on summary judgment reflects the parties reached an

oral agreement for the purchase by Heymann of the Millers’ property. The

Millers had their counsel reduce this agreement to a formal sales agreement.

Heymann responded, but proposed a number of additional terms that a)

Heymann’s counsel considered missing and deficient in the agreement, b)

were standard to a sales agreement that Miller testified were discussed and

agreed upon, and c) other paragraphs that had not been discussed and

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agreed to (i.e. prohibition against assignment of agreement). The trial court

noted the memo by Heymann’s counsel to the sales agreement did not state

the original terms agreed to were rejected or that Heymann did not intend to

proceed with the agreement reached between her and Miller, or whether her

additional terms and conditions were a counter offer.        Trial Court Opinion,

12/17/13, at 1-4.

      It is apparent a number of scenarios, including the following, are

possible to a finding of whether an enforceable agreement existed between

the parties.   It is possible the oral agreement memorialized in the sales

agreement is enforceable, if the sales agreement did not materially alter the

terms of the oral agreement. In these circumstances, the statute of frauds

would not bar enforcement of the agreement.           See Beeruk, supra.      If,

however, the sales agreement materially altered the oral agreement, then

the oral agreement would be barred by the statute of frauds, because no

written   agreement   exists   to   confirm   the   oral   agreement.    Target

Sportswear, 474 A.2d at 1148-50. In this latter case, the sales agreement

could be considered a new offer.        If so, the parties entered a binding

contract only if Heymann accepted the offer. To answer that question, the

fact finder would have to determine whether Heymann’s subsequent memo

constituted an acceptance of the offer or if Heymann’s additional terms

materially altered the Millers’ proposal.     If Heymann’s response materially

altered the terms of the Millers’ proposed sales agreement, the fact finder

could consider Heymann’s response a rejection and counter offer.         Finally,

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there is the question raised by the Millers: was a mutually agreeable written

sales agreement an express condition precedent of the oral agreement

reached between the parties? On this latter point, we note the general rule

that where an act mentioned in a contract is not expressly made a “condition

precedent,” it will not be so construed, unless that clearly appears to be the

intention of the parties. American Leasing, 454 A.2d at 559. Accordingly,

I concur with the Majority that the trial court erred by concluding there was

an enforceable agreement between the parties and in granting summary

judgment, as there are material issues of fact that preclude summary relief.

      In conclusion, I agree with the Majority that the trial court erred in

granting summary judgment on Heymann’s motion.              I also agree with the

Majority that the trial court correctly denied summary judgment on the

Millers’ motion, but disagree that the only relevant inquiry is whether there

was a meeting of the minds on the oral discussion between the parties. As

outlined above, I believe there are numerous other possibilities to the

outcome of this case that raise genuine issue of material fact.

      For all of the foregoing reasons, I respectfully concur in the result

reached by the Majority.

      Justice   Fitzgerald   concurs   in    the   result   of   this   concurring

memorandum.




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