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HomeMy WebLinkAbout96-02294 . It ~ tf III t ~ '.., "'-""" ", " / .' / r ~ """-J .. '.:) - C;J ~i ~I I , , 'I , 0 . .. ~oo~ ? .., 0' f 0 f(jJ ~ ~l (JJ ., ~ L r , \~ ~ ~ ~ (,n -.((11 .' e 0 0 ..0 ~ f ~ n ,.. "') f 0 .~~ ~ w '7' [ r. '-e 7<.) 'II- ~'1 - " !. ,.. III 1',' "u> i/o' oj JlJ .tl S<-' .... .J - '" ~ lJ'l t" 3 ') 00 .... :00 ~ ~ ~ -I:- " " ln (t- o " 0 IIJ f, C1l 0 0 ~. . , 0 :; 6: ~ -a, , ~ .~ f 0/) 1 " , , ) I , . I , ... 'I -":, :"11 ," 0-1 :J _J ,,:) :',1 ~ ;. ) ;1'1' i -'I "-'.. . , -~ .. :.'. r"-j - pd\b~t\brown..b.\'." DAVID S. BRO~"N ENTERPRISES, I IN THE COURT OF COMMON PLEAS OF Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA I v. I No. 96-2294 I BL&B ASSOC. & SHIPLEY OIL COMPANY, I CIVIL ACTION LAW Defendants I MDlORAllDUM or LAN I. Statement of Facts This case arises out of a lis pendens filed by the plaintiff against the defendants on April 29, 1996, against a parcel of land in Lower Allen Township, Cumberland County known as 5200 Simpson Ferry Road, Mechanicsburq. The lis pendens was filed by the plaintiff when it learned that the defendants had contracted to sell the subject property which was already under contract for sale to the plaintiff. The defendants have filed a Petition to Strike the Lis Pendens and Rule to Show Cause. This Petition to Strike is presently before the court for disposition. The matter arose out of negotiations between Howard Brown, a principal of the plaintiff and Russell Bardolf, an agent for the defendant. In the various conversations between the parties, they agreed to the basic terms for the sale of 5200 Simpson Ferry Road by the defendants to the plaintiff. The agreement of the parties was expressed in writing by Bardolf in his letter of March 21, 1996, to Howard S. Brown. In this letter, signed by Bardolf, he accepts the -1- plaintiff's offer to purchase the property, identifies the property with specificity, and identifies the agreed to purchase price. The plaintiff acted in reliance on the contract until it learned that the defendants had purported to resell the property to a third party. It was at this time that a lis pendens was filed to prevent defendants' sale of the subject property in breach of the March 21, 1996, con- II. Discussion of Law. This is a case that involves a transfer of an interest of I I I i I I ' I., tract. land; therefore it presents a transaction which is protected by the Statute of Frauds. The statute reads in pertinent part: . [A]ny uncertain interest of, in, or out of any . lands, . . . made or created by . . . parol, and not put in writing, and signed by the parties, so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases of estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force of effect, . . ." Act of March 21, 1772, 1 Sm.L. 389, Sect. 1, 33 P.S. Sect 1. " The purpose of the Statute is to prevent the possibility of enforcing unfounded, fraudulent claims by requiring that contracts pertaining to interest in real estate be supported by written evidence signed by the party creating the interest. BYrns v. Baumaardner, 303 Pa. Super 85,94, 449 A.2d 590, 594 (1982). Pennsylvania courts have emphasized that the Statute is n21 designed to prevent the perfo~nc. -2- of enforcement of oral contracts that in fact ~ made. (emphasis in original). See Beeruk Estate, 429 Pa. 415,418-19, 241 A.2d 755,758 (1968) (gyQtina Corbin on Contracts Sect. 498, at 680-681 (1950). . The terms purporting to convey an interest in land must b~ manifest in writing, in order to make the contract enforceable. The property must be adequately described, the consideration must be set forth, and the agreement must be signed by the party to be charged. Keil v. Good, 467 Pa. 317, 356 A.2d 768 (1976), ~nd see American Leasina v. Morrison C., 454 A.2d 555,557 (pa. Super. 1982). The writing required by the Statute of Frauds need not be a contract of sale. All that is required is a memorandum containing the aforemen- tioned elements. Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, 113 A. 202 (1921). Further, the Statute of Frauds requires that agreements for the sale of land be signed and in writing. Hessenthaler v. Farzin, 388 Pa. Super. 37 40, 564 A.2d 990,992 (1989). ,I r ( In the case at bar, the agreement of sale is a letter of accep- tance signed by agent of the conveyor, Russell Bardolf. The March 21, t I j i ,\ r 1996, letter specifically states that the property that is to be sold is located at 5200 Simpson Ferry Road, Mechanicsburg, Pennsylvania. The amount of consideration was a definite purchase price of $75,000.- 00. Finally, the letter is specific in that the term. were an "as is" sale. Therefore no further addendume were neces.ary with respect to the specifics surrounding the environmental re.pon.ibilities. The requir.ed three elements to satisfy the Statute of Fraud. are pr.sent. Nothing beyond this is required to enforce a valid agreement for ..1e. -3- The defendants are now claiming, through parol evidence, that other matters were discussed and were to be incorporated into an agreement of sale. The defendants' claim in paragraph 6A of its petition that the "plaintiff had not agreed it would accept and purchase the property in view of the environmental problems as dis- closed..." is clearly contrary to the writing signed by the party to be charged. The contract clearly states that the offer being accepted was $75,000 for the property "as is". Testimony will reveal that the plaintiff was going to assume the cost of the environmental cleanup and that the transmission of the environmental reports with the March 21, 1996, letter were to aid the plaintiff in the development and execution of its cleanup plan. This is consistent with the language in the March 21, 1996, letter. Defendants claim that the environmental reports were being sent 00 that the parties could further discuss the issue of allocation of environmental cleanup costs. This is clearly contrary to the writing signed by Bardolf. Plaintiff agreed to purchase the property "as is." Bardolf's letter says 60. "As is" can only have one interpretation. It does not mean that defendants were going to do some or all of the cleanup. The "as is" purchase explains why the price is significantly lower than what had previously been discussed or what the defendants have allegedly resold the property for. Testimony will further reveal that deed restrictions for the prohibition of gasoline and convenience store products were never discussed. The plaintiff's own approximately 14 acres of land border- -4- ing three sides of the property and such a restriction would make no sense inasmuch as plaintiff may freely use its other land. The fact that defendants may have sold previous paroels with such restrictions has no bearing on what was agreed to in the contract at hand. The cases oited by the defendants to support the proposition that essential terms of the contract were missing are distinguishable and are just as easily used by the plaintiff to support its position. For example, Taraet Sportswear v. Clearfield Foundation, 474 A.2d 1142 (Pa. Super 1984), the court refused to endorSE a contract not because of the informality or incompleteness in detail of the signed memoran- dum, but because another memorandum containing different terms and provisions was not signed. The Supreme court, citing earlier Supreme Court cases stated: "In Statute of Frauds cases, we 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 leads respect to the statute to refuse enforcement because of informality in the memorandum or its incompleteness in detail." Id. at 1149. The defendants have made an issue out the fact that the lis pendens has prevented them from proceeding with the sale of the premises to a third party, and that they and the third party have been prejudiced by the lis pendens. This is exactly what a lis pendens is designed to do. The plaintiff has no adequate remedy at law if the defendants are successful in selling the property to a bona fide third party. The lis pendens has prevented another sale. An action for -5- -' I' i' I I' I ~ ;1 I' J I 1 il II " , il- " " I I' I . , specific performance will follow if the matter has not been resolved or settled to plaintiff's satisfaction. The defendants claim in its petition that Bardolf had no author- ity to bind the defendants. It is interesting to note that Bardolf signed the verification to the petition and that he also signed an addendum to a letter of intent for the same property entered into on April 16, 1996, with a third party. Furthermore, according to defendants' petition and affidavit, Bardolf is an employee of Shipley oil Company, which is the Broker of record for BL&B, the legal title owner of the subject property. At no time during the negotiations with plaintiff did Bardolf reveal that he was not an agent for the seller or that he did not have the authority to negotiate or bind the seller. Certainly, Bardolf in his March 21, 1996, letter writes with the apparent authority to bind the seller. An admitted agent is presumed to be acting within the scope of his authority where the act is legal and the third party has no notice of the agent's limitation. Trident CorD. v. Reliance Ins. Co., 504 A.2d 285 ( pa super 1986). The law is well settled that a principal is vicariously liable for the misrepresentations of his agent. Cohen v. Blank, 518 A.2d 582 (Pa. Super 1986). When an agent exceeds his authority, his principal cannot benefit from his acts and at the same time repudiate his authority. He must take the benefit to be derived from the transaction subject to his agent's fraud. Id. at 585. In light of Bardolf's representations and his conduct and signature on -6- the oontract with the subsequent purchaser, it is que~tionable whether he is to be believed that he did not have the proper authority. In oonclusion, it is plaintiff's position that a meeting of the minds did oocur and was memorialized by the letter of March 21, 1996. A better offer has now come along, and the defendants' desire to sell to another party at a higher price. The contract to be enforced while not a typical agreement of sale contains all of the requisite elements needed to satisfy the Statute of Frauds. Accordingly, defendants' petition should be dismissed, the lis pendens should stand, and plaintiff should be free to pursue an action in specific performance. STONE LaFAVER & .D. 5" 41 Br~dge Street New Cumberland, PA 17070 Telephone I (717) 774-7435 Attorneys for Plaintiff 'I:, \:, -7- .':. I.... .....I.I,'., t:Lt-lI- t: 'JI... I 'Cl.lr"., ,'. '=I.....U/.' 11_' t.'lI...-l.:lc~L' '" .l ENVUlONIIfl:NTAl. RaPONSl! 4Z USC8 f H07 t 9607. UabJlIty (IJ Connll penolDl SCOJe; lec:......~ COllI sad.t. J : Iat..r nile! wC"""". .ble -..ri1lJ" c1811. Nonrllluaullllll& IIIIY olber provi$ion QI' rule of Ia", and lIUb~ only 10 the cUf_ IIl!l forth in SUbMctiOll (b) of this !eC1I0lI- (1) lite OWller and operll"r 0( a veqcJ or a f3C1liry, (l) my penon II< ho III !be lime 01' dlaposal of any hazardollt IUbllarlce OWlled or optratcod my facility al which such h.&zardOUl SU~laI1cea were dispoIcd of, (3) my pmoIl who by conlract, aareemr:nc, or othmrise amnpd for disposal ur lRatmcDt, \If ur&nsed wi!h a lranIporter for tnllllport for d~1 or trcaemeol, of huardoUl IIlblraaQCS OWIIcd or 1'C",..ed by s~h pcnOll. by any \Jther pucy or c:ntity, allllY IiQljly or inClllClltiOll v~ owned 01 operated by &oolIter pany or mcct}' IlId conWlliDg such hazardolU substau.., and (4) illY penon 'IlIblJ ~ or aa:cpted any buardOIU aubst&llea I'or traDJpOn to ~ or tn:alJUcnl facililicl, ilIciDenlion veuela or lila Idcctcd by sud penon, from w hie!! !here is 1I reI-. or a threalel1lld reI_ which calJlle$ !be llICWTellce of l'aponae CQlIl&, of a bazardoua subdanoe, shall be liable for-- (A) Il.lI Q)tt& of remonl \71 rClDeo1Iaj actioa iD~ by lite Uwlcd Scales Oovernmenl or 1I Stale or lID lIldian tribe Clot im:oasislenl wilh lbe aatiOllll collliniency plan; (:8) any olbc:r neocssuy COSla o{ ..._e inl.:1Il"I'ed by any other penon COIl&iIlalt WIt!! the nalioual contin&ClICY piau; (C) damaaca for iDjury 10. dCllltru~on of, or I.. of naruzal IlSOlIrccs, incJudiDll the rel5ClIable COI1lI of W-1iIIC SlIch lajury, deslnlC1ioa. or loa ravJtiug thnn such a relcuc; and (D) the caslS of any health .w, ...mt or health c4"cctS nuuy carried OUI W1der section lOOi) [42 uses f 9604(i)J. The amouncs recovenble in an Ill:tiolI W1det this sectioa slWl illclllde inl_t on lbe llIlounla rocoverable under subplracrapila (A) throup (O), Such inlCfCllt sball accrue from the later of (i) the dace payment of 1I specified amoUllI is demanded in WTitiDc. or (Ii) lbe dati of the e;qlelldinue concerned. The I'llle of inlc:rCSI on lite oucatalKlina unpaid baIancc of lite amounla reco....rablc UDder lhis secliOll slaaJJ be lb. IIUIJt rate as is specified for interes1 on iIIvesttnmlS of lbe HazanlOIIS SWxnul:C Supm\wl eeta~ lUhed WIder subchaprer A of chapler 98 of lite InteTnal Revenue Code of 19'4 [26 uses ~~ 9~1 ct seq.). For j:1UrpOMI of applying sucb amend. malt. 10 inlcrelt under tJ1ls 5UbeectiOll. the lerm "COllIpuablc malllrilY" shall be dclermiDed with referenl:C to th. dale 011 which Interesl accruing IlDde:r this subsection commences. fb) DelfllIeI. There shaI.l be no liability llDder subsection (a) of ibIS section for ~ JICl'S<ln otherwISe liable who ClUI es1abUah by ~ preponderance of lite 283 I Ii II alale broker for B1.&B. Bardolf neaotiated with Brown solely in the capacity as broker of record. In a leller dated May 23, 199~, Brown offered B1.&B S7~,OOO.OO for the Premises, providina that the Premises were conveyed as an environmentally-clean sile. B1.&B did not IIIXCpt this offer. No funher neaotiations took place until March of 1996, w!len Brown and Bardolf resumed discussions regardina a potential purchase. On or about March 20, 1996, Brown indicated to Bardolf that a purchase price of S7~,OOO.OO would be acceptable to them, but that the purchase would have to be contingent upon Brown accepting the environmental condition of the Premises. In that regard, Brown requested Bardolf to send environmental reporu on the Premises to them so that they could make an independent review of the documentation. On March 21, 1996, Bardolf sent the requested repom 10 Brown under a cover letler that reilerated the acceptability of the S7~,OOO.OO price for the Premises. This cover letter is attached to the Emergency Petition to Strike Lis Pendens as Exhibit B. About eight to len days later, Brown instructed Bardolf that Brown would prepare a contract for the purchase of the Premises later that week. This contract was to contain all of the essential terms of the proposed transfer, including terms as to a) the acceptability of the environmental condition of the Premises, along with the required representations and warranties. b) a deed restriction prohibiting the future sale of petroleum products or convenience store products on the Premises, and c) down payment. settlement dale and location, deed preparation. transfer tax or tax prorations. None of these items were set fonh in Bardolrs cover letter of March 21. 1996; and in fact, the parties never proposed, much less reached, an agreement as to these specific terms. At that point. the only term that 2 wu qreed to between the parties was the price to be paid for the Premises. On April 17, 1996, Bardolf received a voice mail messa&e from Brown asking how the draft contract should be prepared and by whom. Bardolf responded, inslrll<:ting Brown that in the time that had elapsed since Bardolrs letter of March 21, 1996, BlAB had accepted a deposit and were entertaining an offer from a third pany. Brown is now asserting that BL&B, by virtue of Bardolrs letter, entered into a binding qreement to sell the Premises to Brown. BL&B contends that there has never been a binding qreement between the parties for sevenl reasons. First, the letter from Bardolf does not set forth any essential tenns of the transaction other than price and therefore is not enforceable under the Statute of Frauds. Second, the letter, even if it were adequate under the Statute of Frauds, was not executed by BlAB or an authorized agent thereof, but instead was executed by BlAB's broker of record who had no authority to bind BL&B. Finally, Brown qreed with Bardolf, after receipt of Bardolrs letter, that a contract setting forth the terms of the sale would be drafted by counsel and executed by the parties. When BlAB refused to sell to Brown, Brown, by Praecipe, entered a Lis Pendens qainst the Premises. A true and correct copy of the Praecipe is attached to the Petition as Exhibit A. The Praecipe is captioned .Civil Action - l.aw., and does not purport to be ancillary to an action at equity for specific performance of the alleged contract between the parties. BlAB subsequently filed the instant Petition. asking the Court to strike the Lis Pendens on the grounds that I) substantively, no agreement exists between the parties, and BlAB and its prospective purchasers are being irreparably harmed and prejudiced by the Lis Pendens. and 2) procedurally. Brown is not seeking equitable relief under the purported 3 -' I" I I; .11 I' : /. I I 'II , ) '1 ~... i conlrll:t. D. Letrlll DiilCussioq. A. Grounds (or Strildn, or Cancellinll lis Pl!ndl!ns. Pennsylvania courts have often granl.ed the equitable relief of cancellation or striking <1: I of lis pendens. 14 Standard Pennsylvania Practice 2d., 079:29. Because lis pendens has arown out of the common law and equity jurisprudence, it is wholly subject to equitable principles. Dorsch v. Jenkins, 365 A.2d 861, 863-64 (pa.Super.1976). The Supreme Court , " of Pennsylvania has long opined that a court may cancel lis pendens if the equities of a particular maller dictate such action. see McCahill v. Roberts, 219 A.2d 306, 309 , ' (Pa.1966)(citing Dice v. Bender, 117 A,2d 725 (Pa.1955). Specific grounds for cancelling . or striking lis pendens have included situations where the plaintiff has indexed lis pendens aaainst a propeny but nonetheless has an adeqllllte remedy at law for money damages. _ , ~ ; : j '1' , , II ,I ,I McCahill,~. In addition, general equitible factors have been considered grounds for this type of relief. 14 Standard Pennsylvania Practice 2d., 079.29. I I f , , I,~ , r , I:J l, ~t, ') t' I. In the matter at bar, the Petitioners have propounded three separate grounds for striking or cancelling the lis pendens entered by Brown. As srated above, the first ground for the relief requested is based on the lack of merit of Brown's substantive contractual claim aaainst B1.&B. The second ground is that BlAB and its prospective third party purchasen of the Premises arc unduly harmed and prejudiced by the lis pendens. The third ground is that Brown, by commencing his action in the law side of the Court. has aclatowledaed the adequacy of damaaes as a remedy in t.his matter, and therefore a lis pendens is not required to work justice in this mailer. 4 . , B. Statute of Fn.ud~. . Brown asserts that the letter of March 21, 1996, from Bardolf to Brown wu sufficient to constitute a bindin. contract for the sale of the subjcct premises. BlAB , ; contends that this writinll cannot constitute a contract for the sale of real estate because it I. , , , I does not comply with the requirements of the Statute of Frauds. The Statute of Frauds in Pennsylvania is found at 33 P.S. 01 ".1l:SI. It requires that a contract for the sale of real property must be in writinll, signed by the party asainst whom it is to be enforced and containing the identity of the parties, a sufficient description of the realty and the tenns of the sale, including price. r .adner on Conveyanc:in~ in Pennsylvania, , 06.03(c). The purpose of the Statute of Frauds is to prevent the fabrication of an oral ,I I asreement concerning real property where none otherwise exists. In re Downinlltown Indust. '" Aerie. School, 172 B.R. 813 (Br.E.D.Pa.I994). The writing must set forth the essential terms of the contract. Lonll v. Brown, '82 , ,.t i .~ I A.2d 3'9, 361 (Pa.Super.I990) (emphasis added). It has long been held that where oral testimony is necessary to establish any essential feature of a contract for the sale of land, " , then said contract is within the Statute of Frauds and is unenforceable. Collins v. PellOQ, 36 >., , J I~i , i' Fay.L.J. 20 (1973); Mack v. Lewis. 46 Sch.L.R. 41 (19'0). E.uential terms include more than just a recital of consideration. ss: R-k v. Milder, 34 Leh.L.J. 237 (1971). In the put, essential contract provisions have inc:1uded those dealing with a) insurance responsibililiea, b) financing luidelines. c) option agreements, and any others reforminll or alterin. an outstandinll offer. ss: IallZet Sponswear v. Cleartield Foundation, 474 A.2d 1142, 1148 5 (Pa.Super.1984). In Tar,et, the Court noted that the crucial question to ask from the Statute of Frauds standpoint is . Are the complete tenns of a valid agreement ascertainable [from the subject writina) with certainty?' iii. If the answer is .No., then the Statute is violated. 111. In the instant cue, the writing in controversy is the March 21, 1996 letter sianed by Bardolf. In that letter, Bardolf states that he has enclosed several environmental reports rela1ina to the Premises for Brown's review. As testimony before this Court will demonstrate, this documentation was requested by Brown as a prerequisite to entering into anyaareement for the purchase of the Premises. With that being the case. Bardolrs letter was executed and mailed llcfw:s: Brown had the opportunity to review the environmental documentation. Reaching an agreement on the environmental liability issues pertaining to the property was of utmost importance to both panies, and it is clear that a final agreement on the sale of the Premises could not be entered into until Brown had reviewed and accepted the environmental reports. Therefore, there could be no . meeting of the minds" between the parties until sometime after Bardolrs letter was delivered. Bardolrs letter contains no references to the allocation of environmental Clean-up and remediation liability, even though that issue had been the subject of negotiation between the parties for over a year. In fact, as set forth above, the panies had not come to an agreement as to this essential issue by the time the letler was sent. As in Tar~et, Brown, after raising the issue first in May of 1995, cannot now seriously contend that the environmental liability provisions to be incorporated into a written agreement of sale were not essential to the proposed cantract with BUB, Furthermore. testimony will demonsllate that the parties also understood that a deed 6 restriction was going to be essential to any qreement of sale. The restriction Wall to relate to the prohibition of gasoline and convenience store products on the Premises, and a1thoueh the concept was clearly discus.sed with Brown, with Brown recognizing its essentiality, no specific laneuage was ever discuucd or drafted. The same is true of all other customary provisions of an qreement of sale. In fact, a review of Bardolr s letter clearly shows that the only term discussed therein is price, but even that recital contains a condition precedent that Brown accept the property in an "as is" state. Because this letter was written prior to Brown's review of the environmental documentation, there obviously was no "meeting of the minds" on this condition precedent at the time the letter was drafted and signed. Because the essential terms of the contract are missing from the Bardolf letter, and the letter does not evidence a true meeting of the minds by the parties, the letter does not satisfy the requirements of the Statute of Frauds. The letter from Bardolf does not satisfy the Statute of Frauds for another reason: it is not signed by BL&B or an agent of BUB. The Statute of Frauds clearly requires that the writine purpo~ to be an qreement of sale must be signed by the vendor or his qent. ~ Malter of Penlrack's Estate, 40S A.2d 879 (pa.1979). And where an agreement of sale is allegedly signed by an authorized agent of the vendor, then the agent's authority to bind the vendor must be manifested in writing. ~ FielZelman v. Parmolf COll>., 2S7 A.2d S7S (pa.1969). In this case, the writing purponed to be the agreement of sale is signed by "Russell]. Bardolf CCIM, Real Estate Development Coordinator." The evidence will establish that Bardolf worn solely for Shipley Oil Company, with Shipley Oil Company serving as real ! . 7 e.stale brolc.er for B1.&B, an entirely separate entity, The writing contains no signature of anyone on behalf of B1.&B. Funhennore, Bardolf had no authority to bind B1.&B to a sale of the Premises, but was only authorized to communicate authorized offers and counteroffers between the panics. Bardolf was at no time authorized to accept any offers on behalf of B1.&B, and there exists no writing providing otherwise. Accordingly, the letter of March 21, 1996, also violates the Statute of Frauds because it does not contain the requ~ signature of the vendor. , . c. Sub!tantive Contract Claim. As set fonh extensively in Subsection B above, the writing alleged by Brown to constitute an agreement between Brown and B1.&B for the sale of the Premises does not meet the requirements of the Statute of Frauds. But more importantly, even if the Bardolf letter, as it stands, was sufficient to meet the basic requirements of the Statute of Frauds, the ultimate issue is that an agreement was never reached between Brown and B1.&B for the sale of the Premises. A meeting of the minds is absolutely necessary to the fonnation of a contract for the sale of real property, and the writing involved must evidence that meeting. "" Gettenw v. Homestf'.atl Assn. of Westmoreland, S2 A.2d 32S (pa.1947). In this case, the l2Ilb: issue ever resolved between Brown and BUB regarding the potential purchase of the Premises was price. They never resolved the environmental li.1.bility issues or the deed restriction issue, although both were discussed by the parties as essential bargaining poiNS. As stated above, Brown had requested environmental documentation from B1.&B, presumably to make a detennination as to Brown's potential exposure to clean-up and other liability. It was always clear between the parties that Brown 8 would nol enter into an agreemenl to purchase the Premises until Brown was satisfied thai their environmentalliabilily ellposure was sufficiently limited. Similarly, il wu always clear between the parties that B1.&B would not enler into an agreement to sell the Premises until the parties reached an agreemenl as to the IangWlle of the deed restriction required by B1.&8. No specific language was ever drafted or proposed by either party, and therefore, BlAB would not have been in a position to enter into a tina1lireemenl for the sale of the Premises. Finally, Brown has never made an ellpression of 11'. inlenlto purclwe. Certainly the alleged writing contains no such ellpression. Accordingly, there wu never a meeting of the minds between Brown and BL&B regarding the purchase of the Simpson Ferry Road property, and therefore, Brown is nol entitled to any relief with respect thereto. D. Preiudice to BL&B and Third Parties. In the time since Brown has indelled the lis pendens lIpinsl the Premises. BlAB bas losl the opponunily to sell the Premises to a third-party offeror. This has subslalllia11y damaged B1.&B, and BL&B will continue to incur damage as the lis pmdens remains in effecl. With the obvious inability of Brown to force a ,sale of the Premises under the SlItute of Frauds, BL&B is being prejudiced by the existence of the lis pendens. In 1Iddi1ion, prospective third-party purchasers will be prejudiced in their ability to lCquire lbe .......-ti by the exiSlence of the lis pendens. The equities of the case demonurale that BLtB -w.. requcsled environmental documentation to Brown and Brown promised to IWtew die documentation and prepare a contract of sale within a week. When this lime .'.,. IIId ' nothing was heard from Brown, BlAB accepted another offer. Brown r.DId'lO M ,.,... its own timeline for preparing an agreemenl of sale, bul seeks to punish AI...a,. ... 9 -' w. Conclmtinn, For the nNOns set forth above, your Petitioners respectfully request this Court to IfIIIt the relief requested in their Emeraency Petition to Strike Lis Pendens. Respectfully submitted, ~~.~ avid B. Schaumann, Esquire Supreme Cl. 1.0. No. 16675 BLAKEY, YOST, BUPP '" SCHAUMANN 17 East Market Street York, Pennsylvania 17401 (717) 845-3674 Counsel for Petitioners /l JIt ~ " /" :? J) <.t GeOrge ~; Faller, Jr., uire Supreme Ct. 1.0. No. 813 MARTSON, DEARDORFF, WILUAMS '" OTIO Ten East High Street Carlisle, PA 17013.3093 (717) 243.1850 Co-Counsel 11 , , <Il < <Il :z to:! ~ ~ ~ <Il "'< H I>. ~ P. '" 0 ::> (5 Z '" < '<f 0 . '" 1-<0 J: ~ ~~ ~ "'I-< U ~ ~ ~' 0 V') < OZ~ ~ "'ZU) ~ . g U::><~ W "'oz ~ ~ ~ O~H 'On. ~ ~~ t.Ll u .. . ~U > ~~ U)I-<O ~ .. . ,. 0 I H ~ t-iZ 0 ::> . '" "" < 0 U U Zf-oW >> , 2 f-oZZ g U) ,...~'" ~ to' ~ 2 "'<0"- > ...J n. < "' .. ::>~H'" al ~O ~ U) ~ , O"'..N ;><H ",,' UWUN U) OU~ ,.' III al':: I <Il U);>O Z ':.-; ;;2 W~ '" ..;w '::WW OJ :c ~'" 0 ..J "'t.:l;J<: '" f-oU"" H aln. 0"''''' < > > "'H IEW'" ..,J Z~.... < ~:t: W~f-o "" ,... . JlJI'lol-I'::>':'6 10' 1'5 FPON DLHI'E',. ',OST.DUF'P.~ SOtAU1 TO 17177743869 ~ MOoor HIIWI mwr'''hrClAllC'rlll1XtlCI.1''QIIt l'I'IWm.y_ "411""_'00 April 17, 1980 D.v;rl B, Schlumlnn Rlak..y. YOII, Supp .. $ohlumenn 17 e. Mllrkel 51. York. VIA 17"\)1 O..r Davlct. tnelOllct you will 1I1l~ it rI~po.II chick for f9.000.00 whlel, you I" 10 plaal In lIerow .. "culity 'UI lhl nil whiCh 10 outlin.d in th.. IIUlr Of Intent Inct IIdcIcndum to il (wl1lo;II .... alia anelooed" 1'1.... preparl dll in'lallm'nlllll' contrlet bleed nil l"'" documcl'lte. , Ptep"ld ltlll IHIl~r ollnl.nl and Ihe addendum WII' compoled eluring I conferenr.p ,~~II with Ih. bUYer'a attorney, .Iim'SlIlctll (1.717, 2311-47761. w.. ..,.. impaling a deed """..Mn Oil lll.. proplrty for 1 b yaa,. which will Plllllih;I Ihl sail 10 any convlnienee .tn.., uwn., 0' operator. Pl"dn nil me to d,ocun the I;m",u ur thlli 'g'etlment With cia ling. Hte, ~"IY' <, , ~ RUIIIII J, ila,elol!. JI r.CIM Rlllliatl" O.velop,,,,,,,r r.:oordlnalor ...""..... ftI"....III..,....""". i,. ------ J\JI- 14-1996 1011b 1'1'0/'1 DL...E'''"OST,~UPP,:> SQro1 TO '!hlo II In .w.1",Jdlllll to tile IcUe. of Inl>>,,~ "atlll! April Ihh IPPlt, ~ O,L . I'l ~'Id 011.1.... ~. I'IIU... J.. I, It they parti.... ,1", not agor" m an accept.bl" 1,,,tol1lllont Ule~ 49<_nl., with In 4. dlyc from tM "at" o1lo... till>, .y"....nt wi U ~""" null ln03 ',uid ~M ~ ,..It Will '" refunde.l lu 101)l9r. ,. 'Itl. fl'Kl 4Cll'.....nt wi:! int":ltparl... tile follOllI"'1 ,,,ca. c:onelfnln~ .....virexnental """"h.llC'el A. ^ll ')::;r', Ind ""'1tllllllllltlll! lOlL Will ~ r..,,,,,,, .,,,, final nu eloll1rl report ClltlFlete<l II /l~Y'I puor to <l1olln9. at lIe.lere ellpOfll,... B. ~l1er h.. l'",vl"'" tuyv with e.-let. ..II .,.,....."' ""I'i.. of ,,"ylr_ntd ~OIU.. c:. SIU.r rcpfftenta ond Wl.n.np, to lJuyvr that to _lIen .,.,w''Olt]. property eontolrw no ~"OlItami ""ticn and Ie In CClTpllUll:'l with _1,clIbl,. 'llWI ..~pt Ie :let forth lu Plreirail1 ra) above. D. ~..lle. will UIllCllllify, de{ellll " hol/! hanrueec bure. from aqy 10..... 11.bI11ti..,ClailD"ulta,or ""r''''~tl prceeedin"a .e1atw to '?IIyl.OlInnb1 ll'OntcrlnathlU .....1110) at property prior to c1""!no:r. 3. 1be "..tall"""t .~_nt will provida lll.t tlt10 wlU be 9ll~ onclll1lr~et.bl". i ....'t.abl. It reqular .1t1S II. >he tI.. of Inltl.l ond tln.l elo.ln9 and wi 11 ,. trarwltre\f by "peclol ".rranty 1Iwd. 1, l'I:lor to ;Iotlll\l, "'II''' at buyer. "lrP"ft~ "ill I" ""nnfttO<! to peter wilAt IV~. lOl": ....rmmtal ttullln u -..cJ 1lI'''ey l'J Iluyv. It the conclltiOll8 a,.. Illllatlltactcrv btfer nay 1~,,"I""t8 thl. .crr_ ani _Iv" .....um ot Clle dc_it. " , ~~~~1.~ ~ '~u,G ~....... C1l:.: :r- ~ ~ r.1Iirl.. L. i'bller Jr. '-- --.-.-- : HH6 04: 30FM tW,l 2m: ;F.C'Nll e!iT, ... ,"\ .., I ...... I . ,~ ~ . I.' I I I I , I 't ;:~: FCC; -::~ F.STAHUSHED 1933 ~~.~~enle111I'ise8 91113 Reisterstown Road 1 Owings Mills. MD 21117.~n., Valley Village Center. Lower Concourse (4'0) 363-34341 FAX: (410) 363-67~1l April 19, 19~1J Mr. au...l Bardolf R..l ..~.ta Develop..nt Coordinator.5 shipley oil Company 550 Ba.~ King Street PO Box 946 Ynrk, PA 17405 REI 5200 si.p.on Ferry Road o..r Ru..: Thi. l.tter i. to provide you with fo~aJ notice that D.vid S. BrOWn Int.rpri... holds you in default of the contract w. bali.v. we had tor tha s.l. ot the abov.-ref.renced proparty. It is clear thst the March 21, 1996 lett.r from you to Howard Brown indicated the 4cceptanca ot our ottar to purchll.e this proporty. As you know, th.re wara no plans to 90 to formal documentation as we were ..r.ly (Join; to revi.w ths .nvironmantal reportfl and settle on ths property. w. did not rac.ive your docUlIIantati,on to review until March 23, 1996. I spoke with you several days later and inform.d you that Howard'. mother bad pa..ed away. I told you that we would ba out of the otfice for a f.w day. but that we would qet back to you shortly to compl.t. the purohase of the property. I .poke with you yesterday when you informed us that you, had alr.ady contr.otec1 to sell tha property. We believe that this i. a olear bre.ch of our .gr....nt .specially in li~ht of the tact that we hava b..n .pendin9 .onsy in r.liance of your acceptanca of our oUsr. Therefore, wa expect you to abide by the terms of tha .gr....nt sat forth in the March 21, 1996 latter. We (..lly expect to take title to the proparty and, if .uch title is not """ilable, we will proceact in court to recover our damages. I look torward to hearinq from you shurt I Y concerning your intention. to .bid.by your agreement. &b.Jjc .abarc1ot Esquir. LN",'I(}/~rll H"i""'r,j II.f'l.li"lI nmlH'fI .' """'I'ltl' MlUllIllen IllIvtJrorJ m, '22' 9WlONI 08:H SHIPLEY OIL COMPANY TEL:7l7 854 5496 P,003 Mlrch 21,1996 Howsrd S. Brown Olvid S. Brown Enterprl... 9183 ReliterS'town ROld Owingl MiIIll, MO 2111 '.4528 Dear Howlrd. Pureuent to our telephone conversation yesterday, you will find enclo.ed four environmental reports for our property at 5200 Simplon Ferry Road, Mechanicsburg, F'enn.ylvlnls. Ths first report WIS done for Shiplay as part of our pre-acquiSition property review. This report s81:ebliahed the baselins level of contemination at the property, The three other reports were done for Mobil as a follow up to our report. They Ire deted April 11, 1995. Novembsr 20, 1995, IInd Merch 1, 1996. me latter report was eubmltted to DER as a part of the quarterly monitoring program. which. in this case. Is accsPtable In lieu of remedletlon (due to the low levelll of contlminetion end the contamination in the erea). Shipley Iccepts your offsr to PlY $75.000.00 'or this property In In as Is condition. W. look forwlrd to sn expeditious review of these documentl and seulement. Sincerely, Russell J. Bardolf, Jr. CCIM Resl Estate Oevelopment Coordinator _'I , i I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW [I DAVID S. BROWN ENTERPRISES, Plaintiff No. 96-2294 CIVIL vs. BlAB ASSOC., and SHIPLEY OIL COMPANY, Defendants MEMORANDUM IN SUPPORT OF EMERGENCY PETITION TO STRIKE LIS PENDENS AND NOW. come the Defendants, BlAB Associates and Shipley Oil Company. and by their attorneys, Blakey, Yost, Bupp &. Schaumann, tile this Memorandum in Support of their Emergency Petition to Strike Lis Pendens: I. RlI"'q~mund. The documents, testimony and other evidence presented in this matter will demonstrate the following facts. BUB Associates ("BlAB"), a Pennsylvania real esute partnership, is the record owner of premises situate in Lower Allen Township, Cumberland County, known as 5200 Simpson Ferry Road (the "premises"). In January, 1995, David S. Brown Enterprises ('Brown') and RusselJ. Bardolf ('Bardolf") of Shipley Oil ComplUly ("Shipley") began discussing Brown's potential purchase of the Premises from 81.&.B. Shipley is the holder of a Pennsylvania Real Estate Brokerage License and serves u real 1 estate broker for BUB. Bardolf negotiated with Brown solely in the capacity as broker of record . In a letter dated May 23, 1995, Brown offered BL&.B $7S,OOO.OO for the Premises, providing that the Premises were conveyed as an environmentally.clean site. BL&.B did not a&:cept this offer. No further negotiations lOOk pl~ until March of 1996, when Brown and Bardolf resumed discussions regarding a potential purchase. On or about March 20, 1996, Brown indicated to Bardolf that a purchase price of $7S,OOO.OO would be acceptable to them, but that the purchase would have to be contingent upon Brown accepting the environmental condition of the Premises. In that regard, Brown requested Bardolf to send environmental reports on the Premises to them so that they could make an independent review of the documentation. On March 21, 1996, Bardolf sent the requested reports to Brown under a cover letter that reiterated the acceptability of the $7S,OOO.OO price for the Premises. This cover letter is attached to the Emergency Petition to Strike Lis Pendens as Exhibit B. About eight to ten days later, Brown instructed Bardolf that Brown would prepare a contract for the purcha.sc of the Premises later that week. This contract was to contain all of the essential tenns of the proposed transfer, including tenns as to a) the acceptability of the environmental condition of the Premises, along with the required representations and warranties, b) a deed restriction prohibiting the future sale of petroleum products or convenience store products on the Premises , and c) down payment, settlement date and location, deed preparation, transfer tax or tax prorations. None of these items were set fonh in Bardolf's cover letter of March 21. 1996; and in fact, the parties never proposed, much less reached, an agreement as to these specific terms. At that point, the only term Ihat 2 was aareed to between the parties was the price 10 be paid for the Premises. On April I?, 1996, Bardolf received a voice mail message from Brown asldnCllow the dlaft conlrlCt should be prepared and by whom. Bardolf responded, instructing Brown that in the time that had elapsed since Batdolrs letter of March 21, 1996, BL&B had accepted a deposit and were entertaining an offer from a third party. Brown is now asserting that B1.&B, by virtue of Bardolrs letter, entered into a binding lIIreement to sell the Premises 10 Brown. BL&B contends that there has never been a binding agreement between the parties for several reasons. First, the leller from Bardolf does not set forth any essential terms of the transaction other than price and therefore is not enforceable under the Statute of Frauds. Sc;:ond, the letter, even if it were adequate under the Statute of Frauds, was not exc;:uted by BL&B or an authorized agent thereof, but instead was executed by BL&B's broker of record who had no authority to bind B1.&B. Finally, Brown lIIreed with Bardolf, after receipt of Batdolr s letter, that a contract setting forth the terms of the sale would be drafted by counsel and executed by the parties. When BUB refused to sell to Brown, Brown, by Praecipe, entered a Lis Pendens against the Premises. A true and correct copy of the Praecipe is atlal::lled to the Petition as Exhibit A. The Praecipe is captioned .Civil Action. Law., and does not purport to be ancillary to an action at equity for specific performance of the alleged contract between the parties. BL&B subsequently filed the instant Petition, asking the Court to strike the Lis Pendens on the grounds that I) substantively, no agreement exists between the parties, and Bl&B and its prospective purchasers are being irreparably harmed and prejUdiced by the U. Pendens, and 2) procedurally, Brown is not seeking equitable relief under the purported , ' 3 contract. u. URal Discussion. A. Ground! for Strikin, or Cancellin2 Lis Pendens. Pennsylvania cuurts have often granted the equitable relief of cancellation or striking of lis pendens. 14 Standard Pennsylvania Practice 2d.. 079:29. Because lis pendens has grown out of the common law and equity jurisprudence, it is wholly subject to equitable principles. Dorsch v. Jenkins, 365 A.2d 861,863.64 (Pa.Super.1976). The Supreme Coun of Pennsylvania has lung opined that a court may cancel lis pendens if the equities of a particular matter dictate such action. see McCahill v. Roberts, 219 A.2d 306, 309 (Pa.1966)(c:itlng Dice v. Bender, 117 A.2d 72S (pa.19SS). Specific grounds for cancelling or striking lis pendens have inc:luded situations where the plaintiff has indexed lis pendens against a property but nonetheless has an adequate remedy at law for money dama&es. _ McCahill, JlIIlIJ. In addition, general equitible factors have been considered arounds for this type of relief. 14 Standard Pennsylvania Practice 2d.. 079.29. In the matter at bar, the Petitioners have propounded three separate grounds for striking or cancelling the lis pendens entered by Brown. As stated above, the fint pound for the relief requested is based on the lack of merit of Brown's substantive c:ontrKtual claim against B1.&B. The second ground is that BL&B and its prospective third pIrty purcbuen of the Premises are unduly harmed and prejudiced by the lis pendens. The third pound, II that Brown, by commencing his action in the law side of the Court, hu acknowl....p" the adequacy of damages as a remedy in this matter, and therefore a lis penclel\s I, ,not.......: to work justice in this matter. ", 4 " , , , B. Stablte of Frauds. Brown wcrts that the letter of March 21, 1996, from Bardolf to Brown was sufficient to constitute a binding contract for the sale of the subject premises. BlAB contends that this writing cannot constitute a contract for the sale of real estate because it does not comply with the requirements of the Statute of Frauds. The Statute of Frauds in Pennsylvania is found at 33 P.S. 01 Cl~. It requires that a contract for the sale of real property must be in writing, signed by the pany against whom it is to be enforced and containing the identity of the parties, a sufficient description of the realty and the tenns of the sale, including price. Ladner on Conveyancinl! in Pennsvlvania, G6.03(c). The purpose of the Statute of Frauds is to prevent the fabrication of an oral agreement concerning real property where none otherwise exists. In re Downinl!town Indust. &. Al!ric. School, 172 B.R. 813 (Br.E.D.Pa.1994). The writing must set forth the essential terms of the contract. Loni v. Brown, S82 A.2d 3S9, 361 (Pa.Super.I990) (emphasis added). It has long been held that where oral testimony is necessary to establish any essential feature of a contract for the sale of land, then said contract is within the Statute of Frauds and is unenforceable. Collins v. Feiioo, 36 Fay.L.1. 20 (1973); Mack v. Lewis, 46 Sch.L.R. 41 (19S0). Essential terms include more than just a recital of consideration. Sl: Beck v. Milder, 34 Leh.L.1. 237 (1971). In the put, essential contract provisions have included those dealing with a) insurance responsibilities, b) financing guidelines, c) option agreements, and any others reforming or altering an outstanding offer. Sl: Tariet Sponswear v. Clearfield Foundation, 474 A.2d 1142, 1148 5 (Pa.Super.1984). In Tar,et, the Coun noted that the cruclal question to ask from the Statute of Frauds standpoint is "Are the complete terms of a valid agreement ascertainable [from the subject writina] with cer1ainty?" 111. If the answer il 'No', then the Statute is violated. 111. In the inSlant case, the writina in controveny il the March 21, 1996 letter lianed by Bardolf. In that letter, Bardolf states that he has enclosed several environmental repons relatinato the Premises for Brown's review. As testimony before this Coun will demonstralc, thil documentation was requested by Brown as a prerequisite to entering into any qreement for the purchase of the Premises. With that being the case, Bardolrs letter was executed and mailed ~ Brown had the opponunity to review the environmental documentation. Real:hina an agreement on the environmental liability issues pertaining to the property was of utmost imponancc to both parties, and it is clear that a final agreemenl on the sale of the Premises could not be entered into until Brown had reviewed and accepted the environmental repons. Therefore, there could be no "meeting of the minds" between the parties until sometime after Bardolrs h:tter was delivered. Bardolrs letter contains no references to the allocation of environmental clean-up and remediation liability, even though that issue had been the subjecl of negotiation between the parties for over a year. In facl, as set fonh above, the parties had not come to an agreement as to this essential issue by the time the letter was sent. As in~, Brown, after raising the issue firsl in May of 1995, cannol now seriously contend thaI the environmental liability provisions to be incorporated into a written agreemenl of sale were nol essential to the proposed contract with BL&B. Furthermore. testimony will demonstrate that the panies also understood that a deed 6 restriction was going to be essential to any aareement of sale. The restriction was to relate to the prohibition of guoline Wld convenience store products on the Premises, and although the concept was clearly discus.!Cd with Brown, with Brown recognizing Its essentiality, no specific Ianguaae was ever discussed or dn.fted. The same is true of all other customary provisions of an aareement of sale. In fact, a review of Bardolrs letter clearly shows that the only term discussed therein is price, but even that recital contains a condition precedent that Brown accept the property in an 'as is' state. Because this letter was written prior to Brown's review of the environmental documentation, there obviously was no 'meeting of the minds. on this condition precedent at the time the letter was drafted and signed. Because the essential terms of the contract are missing from the Bardolf Jetter, and the letter d'JCS not evidence a true meeting of the minds by the parties. the letter does not satisfy the requirements of the Statute of Frauds. The letter from Bardolf does not satisfy the Statute of Frauds for another reason: it is not signed by BUll or an agent of BL&B. The Statute of Frauds clearly requires that the writing purported to be an agreement of sale must be signed by the vendor or his agent. .a Malter of Pentrack's Estate, 405 A.2d 879 (Pa.1979). And where an agreement of sale is allegedly signed by an authorized agent of the vendor, then the agent's authority to bind the vendor must be manifested in writing. s:s: Fiellelman v, Parmoff Co'll., 257 A.2d 575 (Pa.1969). In this case, the writing purported to be the agreement of sale is signed by 'Russell J. Bardolf CCIM, Real Estate Developmenl Coordinator.' The evidence will establish that Bardolf worlu solely for Shipley Oil Company, with Shipley Oil Company servina as real 7 estate broker for BUB, an entirely separate entity. The writinll contains no sillnature of anyone on behalf of BUB. Furthermore, Bardolf had no authority to bind BUB to a sale of the Premises, but was only authorized to communicate authorized offers and counteroffers between the parties. Bardolf was at no time authorized 10 accept any offers on behalf of " r, BL&B, and there exists no writina providina otherwise. Accordingly, the letter of March 21, 1996, also violates the Statute of Frauds because it does not contain the required sianaturc of the vendor. c. Substantive Contract Claim. As set forth extensively in Subsection B above, the writing alleged by Brown 10 constitute an qrcement between Brown and BUB for the sale of the Premises does not meet the requirements of the Statute of Frauds. But more importantly, even if the Bardolf letter, as it stands, was sufficient 10 meet the basic requirements of the Statute of Frauds, the ultimate issue is that an qreement was never reached between Brown and BL&B for the sale of the Premises. A meeting of the minds is absolutely necessary to the formation of a COntral:t for the sale of real property, and the writing involved must evidence that meetina. KG Gettemy v. HomeSl...tl Assn. of Westmoreland, 52 A.2d 32S (pa.1947). ~ " In this case, the lIIlb: issue ever resolved between Brown and BL&B regardina the ;, , t, L: potential purchase of the Premises was price. They never resolved the environmental liability issues or the deed restriction issue, althouah both were discussed by the parties as essential baraainina points. As stated above, Brown had requested environmental documentation from BUB, presumably 10 make a determination as to Brown's potential exposure to clean-up and other liability. It was always clear between the parties that Brown 8 __10 would not enter Into an aareement to purchase the Premises until Brown was satisfied that their environmental liability exposure was sufficiently limited. Similarly. It was always clear between the pII'lies thai BL&B would not enter into an agreement to sell the Premises until the puties reached an a&reement as to the language of the deed restriction required by BL&B. No specific language was ever drafted or proposed by either party, and therefore, BL&B would not have been in a position to enter into a final agreement for the sale of the Premises. Finally, Brown has never made an expression of an intent to purchase. Certainly the alleged writing contains no such expression. Accordingly. there was never a meeting of the nlinds between Brown and BL&B regarding the purchase of the Simpson Ferry Road property, and therefore, Brown is not entitled to any relief with respect thereto. D. Preiudice to BL&B and Third Parties. In the time since Brown has indexed the lis pendens against the Premises, BL&B has lost the opponunity to sell the Premises to a third-party offeror. This has substantially dama&ed BL&B, and BL&B will continue to incur damage all the lis pendens remains in effect. With the obvious inability of Brown to force a sale of the Premises under the Statute of Frauds, BL&B is being prejudiced by the existence of the lis pendens. In addition, prospective third-party purchasers will be prejudiced in their ability to acquire the property by the existence of the lis pendens. The equities of the case demonstrate that BlAB supplied requested environ menial documentation to Brown and Brown promised to review the documentation and prepare a contract of sale within a week. When this time elapsed and nothing was heard from Brown, BL&B accepted another offer. Brown failed to comply with its own timeline for preparing an agreement of sale, but seeks to punish BL&B for that 9 m. Conclul'n~. For the reasons set fonh above, your Petitlonen respectfully request thi. Court 10 pult the relief requested in their Emeraency Petition 10 Strike Lis Pendens. Respectfully submitted. r\\ J) "h~ ~ \ k>-<C S -. Divt . Schaumann. Esquite Supreme Ct. 1.0. No. 1667' BLAKEY, YOST, BUPP & SCHAUMANN 17 East Market Street York. Pennsylvania 17401 (717) 845-3674 Counsel for Petition rs C, '1/7 I 'P4L , '- GeOrge . Faller, Jr. uire Supreme Ct. 1.0. N . 49813 MARTSON,DEARDORFF,~~ & OTrO Ten East High Street Carlisle, PA 17013-3093 (717) 243-1850 Co-Counsel , , , , I, 11 '.)/ " f; - ,.,' " 1/ i I I' 1 I, Pt.intlff never qreed to be bound to purchase the premises. The Plaintiffs had not qreed it would accept and purchase the property in view of the environmental problems as disclosed by Bardolf to Plaintiff. In addition, the parties had notqreed on a specific environmental clean-up plan. Bardolf had never received any communication that the degree of environmental contamination was acceptable to Plaintiff. In addition, there was no qreement proposed or I'elII;hed as to settlementlocatlon, deed preparation, transfer tax, title issues, or laX prorations. B. The letter issued by Bardolf (Exhibit "8") was simply a Letter of Intent which was only established the price but was not intended to be a binding contral:t. The parties agreed that there would be a contract drafted by counsel and signed by the parties which would contain all necessary terms. The Plaintifrs last contact with Bardolf, before assening that a contract existed, was a voice mail message from Plaintiff specifically asking whether his counselor Shipley's counsel would draft an agreement. C. The Pennsylvania Statute of Frauds requires that a\1 essential terms be contained in writing. It was a specific condition agreed to by the parties that a deed restriction would be included in the deed of transfer which would eliminate Plaintiff or any successor to sell gasoline or convenience store products on the site. This restriction is not set forth in Exhibit B as required. 7. BL&B subsequently entered into a Letter of Intent with another purchaser for a purchase price substantially greater than the price discussed by Plaintiff and Bardolf. That 3 AMlI7t8O WHEREFORE, the Defendants, BLAB Assoc:lalCS I\Ild Shipley all Company, request that this Honorable COIIrt strike and canccl the lis pendens entered by the Plaintiff to the above-captloned docket number on the subject premises. Respectfully submitted, ~/I~Sj~ _ ~~haumann, &quire Supreme Ct. I.D. No. 1667' BLAKEY, YOST, BUPP ok SCHAUMANN 17 East Market Street York, Pennsylvania 17401 (717) 84'-3674 Attorneys for BlAB Assoc. and Shipley Oil Company Geor.ae B. Faller, Ir , uire Supreme Ct. I.D. N . 49813 Manson, Deardorff, Williams ok Otto Ten East High Strcl:t Carlisle, Pa 17013.3093 (717) 243.18~0 Attorneys for BlAB Assoc:. and Shipley Oil Company " j \' , .t.-t.~ I i VERIFICATION , I verify that the information set forth in the foreioina Emeraency Petition to Strike Lis Pendens is true and comet to the best of my knowledie, information and belief. I undentand that any false statements contained herein are subject to the penalties of 18 Pa. , C.S. 4904, retatina to unsworn falsification to authorities. DATE: ~ 'I t , I I I .1 I , " ) . , ," "" -,1'111:' '-I,' 'If- "! ;, I Ii , '.,-\ . , , , CORRECTION Previous Image Refilmed to Correct Possible Error bhlbll B m. '22', 961MONI 08:45 SHIPLEY OIL COMPANY TEL: 717 854 5496 p, 003 Mlrch 21, 1996 HOWlrd S. Brown Oavld S. Brown Enterprll" 9183 Relstsretown ROlld Owlngl MlIIs, MC 21117.4628 Dear Howard, Pursuant to our telephone conversation yasterday, you will find enclosed four envlronmentll reports for our property st 6200 Simpaon Farry ROld, Mechanlcsburg, Pennsylvania. The flr.t report wes done for Shipley IS part of our pre-ecqulaltlon property review. Thl. report established the baseline lavel of contamination 8t the property. The three other reporta wera done for Mobl! as a follow up to our report. They are deted April 11, 1996, November 20. 1996. IInd Msrch 1. 1998. The latter report wes lubmltted to DER as a part of the qusrterly monitoring program, which, in this case, Is acceptable In lieu of remedletlon tdue to the low levels of contamination and the contamination in the eree). Shipley accepta your offer to pay $75.000.00 for this property In an .. Ie eondition. Walook forward to an expeditious review of ths.. documentl end settlement. Sincerely, RUlSell J. Berdolf. Jr. CCIM Resl Estate Development Coordinator .", .' , , , I" 'r :;': I d " AFFIDA VIT I am Russell J. Bardolf, Jr. and I am Real Estate Development Coordinator for Shipley Oil Company. Shipley Oil Company holds a Real Estate Brokerage License, and we serve as real estate broker for D,L & B Associates, a real estate partnership. B,L & B desires to sell its property at Simpson Ferry Road. In doing so, I spoke with David Brown Enterprises, a potential buyer and the owner of an adjoining property. Our first conversations were in January, 1995. They told me at that time that they were going through Township approvals for all addition to their shopping center and did not believe it would be to their advantage to buy the property or sell any of their property so that we could expand. They did offer, however, in a leller dated May 23, 1995. to buy the B,L & B property for $75,000.00 as an environmentally "clean site" and if that was acceptable. please contact them so they can prepare "suitable documentation". This was not acceptable to us and nothing further occurred. My most recent conversations, with Arthur Adler and Howard Brown, were in early March of this year. I was told by them at that time that they had really no interest in purchasing our property. In order to get the mailer moving, I asked fora face. to-face meeting with myself and Bill Shipley, III, general partner of B,L & B Associates. Mr. Adler declined to have a meeeting. On March 20, 1996, Brown said that a purchase price of $75,000.00 would be acceptable to them contingent on their acceptance of the environmental conditions of the premises. They asked me to send environmental reports so they could make a review. I sent all the environmental reports I had to Brown via overnight mail on March 21. 1996. Along with these reports was a cover leller reiterating the agreed to $75,000.00 price. As is standard with all property that we sell, a deed restriction would be required prohibiting the future sale of gasoline and/or convenience store products on the site, I discussed this necessity with them. We did not discuss any of the other pertinent aspects of consummating the sale. In my 20 years of real estate brokerage, I have never conveyed a property without a written contract and expected that one party or the other would prepare one after review and acceptance of the environmental reports. At one point. Mr. Brown suggested that he thought that he could reuse the tanks even though I told him I did not believe that was possible, nor did I inform him of the number of tanks or their capacity. Since this was unconventional. I was concerned about our liability. This was left unresolved as I knew the specifics would be handled in a future contract. In addition, if Brown did the remediation work, D,L & B would continue to be liable from an environmental standpoint thus I knew that a final agreement, with our allorney's ;Idvice, would specifically state everyone's environmental responsibility. ,! , Eight or ten days elapsed after I sent the environmental n~ports without response. I called for Mr. Adler, and Mr. Brown returned my call on April 2, 1996 telling me that Mr. Brown's mother-In-law died, and that a contract would be prepared late that week. Once aaain, I did not hear frorn them and heard nothing until April 17, 1996, when Mr, Adler left a voice mall message asking who or how documents should be prepared, something simple - one or two pages. I returned the call saying that we had accepted a deposit and were entertaining an offer from another party. We had only specifically agreed on the purchase price and had never reached an agreement on all other relevant aspects of the sale. They never informed me of the environmental reports suitability or that they were willing to accept the existing contaminated condition, We never discussed, let alone agreed to, the specitics of any environmental clean-up, My opinion was that, given their history of indifference to the property. they had changed their minds after reviewing all the information I had scntto them. I also thought they had breached our intention of offering a reduced price for a quick sale by not communicating with me. Our discussions really only established the price, There were many other mailers that were not resolved and some of the things we did discuss or did agree on were not in my cover leller. Thatleller was intended as only a cover Ieller for the environmental reports and nothing more. Its purpose was identical to Mr. Adler's leller to me dated May 23, 1995, conveying a partial proposal which required "suitable documentation" to be binding. SHIPLEY OIL COMPANY B;2 RUSSELL . R. ~l.<<lnl anri i1ubscribed before ,re this 7th day of J ,1996. 4, L LINDA P ~~I~:'Al SEAL CI~ 01 YOt,AUyOH, Nor./V PubHc " Com ' 0", Coonl\l mllSllon E.wp~~"8 Due 6. 1m 2 MAlmAD " .~ .... f: Li. 'J r'i, '.;(, ~" 'I,.. IU.' '::"!# p. :::i ',.t. f'" ',. g: ..:/, " , ' ..)'. , ~ : ~ ;, , q)J , "";1' .... , 1,,- '..1. t '" ;1: I ') I'.. lr.' t.J f..' C\ , .. DAVID S. BROWN ENTERPRISES, Plaintiff Defendant I IN THE COURT OF COMMON PLE~S OF I CUMBERLAND COUNTY, PENNSYLVANIA I I I I NO. 96-2294 CIVIL TERM I I I V. BL&B ASSOC., and SHIPLEY OIL COMPANY, IN REI EMERGENCY PETITION TO STRIKE LIS PENDENS BEFORE SHEELY. P.J. MEMORANDUM OPINION AND ORDER OF COURT Before the court is the petition of defendants, BL&B Associates (BL'B) and Shipley Oil Company (Shipley) to strike a lis pendens in the above-captioned action. BL'B is the owner of a parcel of property at 5200 Simpson Ferry Road in Mechanicsburg, Cumberland County. Shipley is the real estate broker used by BL'B. Plaintiff David S. Brown Enterprises (Brown Enterprises) is the owner of a large parcel of property surrounding the BL&B property at 5200 Simpson Ferry Road. We held a hearing in the matter on June 19, 1996. The evidence adduced at the hearing revealed that in early 1995, BL'B, thr.ough Russell Bardolf (Bardolf), an employee of Shipley, contacted Brown Enterprises about purchasing some of Brown Enterprises' property abutting the property at 5200 Simp.on Ferry Road. Brown Enterprises indicated that it was not interested in selling any property but might be interested in buying BL&B'e property, The 1995 negotiations did not progre.. beyond preliminary stages and the parti.es fell out of contact. . . . NO. 96-2294 CIVIL TERM In early 1996, BL&B, through Bardolf, contacted Brown Enterprises and offered to sell the property at 5200 Simpson Ferry Road. On March 15, 1996, Bardolf sent a fax to Arthur Adler (Adler) at Brown Enterprises reiterating that BL&B had an active interest in selling the property. Several conversations followed between Bardolf and Adler or Howard Brown leading to a letter sent on March 21, 1996, form Bardolf to Howard Brown. Among other things, the letter statedl .. Shipley accepts your offer to pay $75,000 for this property in an as is condition. We look forward to an expeditious review of these documents and settlement. " Thereafter, when neither party took further action toward a sale, BL&B contracted to sell the property to a third party for a sum considerably higher than $75,000, Upon learning of BL&B's intention to sell to a third party, Brown Enterprises, through Adler, wrote to Bardolf stating that Brown Enterprises believed that the parties had a valid contract based on the March 21, 1996 letter. On April 29, 1996, Brown Enterprises filed the instant lis pendens under the above civil caption. As we indicated at the hearing in this matter, we believe there is a legitimate question as to whether it is proper to file a lis pendens when no underlying equity action, or civil action, has been filed. Our research has revealed no reported c~ses in which such a procedure was used. Furthermore, the Pennsylvania Superior Court has stated, " [A] party is not entitled to have 2 . . NO. 96-2294 CIVIL TERM his case indexed as a lis pendens unlesH title to real estate is involved in litigation." Plaki v, Ferrari, 377 Pa.Super. 1,3, 546 A.2d 1127, 1128 (1988), In addition, " [W)hile listing property as a lis pendens does not create an actual lien, it ... [gives] notice to third parties that the property is lubject to litigation and that any interest acquired by the third party will be lubject to the result of the litigation." Vintaoe Homel, Inc... v, Levi,n, 382 Pa.Super, 146, 155, 554 A,2d 989, 994 (1989). Because there is no underlying litigation, we do not believe that the lis pendens indexed in this matter is proper, No summons or complaint has been filed to commence an action. We will therefore grant the petition to strike the lis pendens. Finally, we are aware that this ruling will likely cause a complaint and a new lis pendens to be filed. In the event that such action occurs, and the parties 10 desire and a petition to strike is filed, we will decide the underlying issues based on the record of the June 19, 1996 hearing. ORDER AND NOW, this ~ day of June, 1996, the emergency petition to strike the Iii pendens entered in this action is GRANTED. By the Court, David H. Stone, Esquire David B. Schaumann, Esquire George B, Faller, Jr., Esq. lsld /s/ Harold E. Sheely Harold E. Sheely, P.J. 3 '-1 ~ ,\ , ._.J I, I j -- I~) pdl.,.l Ib.nvn.b1ll1 7-" DAVID S. BROWN ENTERPRISES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-2294 v. BL&B ASSOC. & SHIPLEY OIL COMPANY, Defendants CIVIL ACTION LAW REPLY TO RENEWED PETITION TO STRIKE LIS PENDENS TO THB HONORABLE, THE JUDGES OF tHE SAID COURTI AND NOW, this 31st day of July, 1996, comes the plaintiff, David S. Brown Enterprises, by and through their attorneys, Stone LaFaver & Stone, and presents this Reply to Renewed Petition to Strike Lis Psndens and avers as followSI Baakqround 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. -1- Grounds for Reouested Relief 9. A. Denied. It. is denied that Bardolf had no authority, express, implied or apparent, to bind BL'B. Testimony elicited at the ~une 19, 1996, hearing revealsd that Bardolf had such authority as was demonstrated by Bardolf's signature on a letter of intent signed with a third party, Charles L. Miller, Jr., subsequent to the contract at issue. B. Denied. The writing binding BL'B was signed by Bardolf, the agent of BL&B. C. 1. through 4 denied. It is denied that the March 21, 1996, Bardolf letter does not comply with the Statute of Frauds. By way of further reply, in order to comply with the statute of FraUds, the property must be adequately described, the consideration must be set forth, and the agreement must be signed by the party to be charged. All these elements have been met. 10. Denied. It is denied that the evidence received by the Court during the June 19, 1996, hearing revealed that the letter was simply a cover letter. The letter speaks for itself and was intended to be a binding agreement. Defendants reversal is only an attempt to accept a higher offer for the subject property. 11. Denied. It is denied that the parties agreed that any further written contract was to be subsequently drafted by counsel. The pap'ers to be drafted were the settlement sheet, deeds and any other documents normally associated with a transfer of title. -2- 12. Denied. It is denied that neither party took further action to complete the negotiations. By way of further reply, plaintiff was ready, willing and able to move forward with the oontemplated settle- ment and continu~s to be ready, willing and able to settle. 13. Denied. It is denied that the third party refused to close solely on the grounds that tho lis pendens had been indexed. 14. Denied. It is denied that BL&B has been substantially harmed or will continue to suffer irreparable harm so long ss the lis pendens remains on the docket. 15. Denied. It is denied that prospective third-party purchas- ers will be prejudiced by the existence of the lis pendens. 16. Denied. The order of court of June 24, 1996, speaks for itself. WHEREFORE, the plaintiff respectfully requests this Honorable Court to deny defendants' Renewed Petition to Strike Lis Pendens thereby permitting plaintiff to move forward with an action for specific performance. on , Esq ire Supreme Court I.D. No. 39785 STONE LaFAVER & STONE 414 Bridge St., P.O. Box E New Cumberland, PA 17070 (717) 774-7435 Attorneys for Plaintiff -3- pd\rpL\browR.blb\l." . DAVID S. BROWN EliTBRPRISES, I 1li THE COURT OF COMMOli PLEAS OF Plaintiff I CUMBERLAND COUNTY, PEliliSYLVAliIA I v. I liO. 96-2294 I BUB ASSOC. & SHIPLEY OIL COMPANY, I CIVIL ACTIOli LAW Defendants I REPLY TO RENEKBD PETITION TO STRIKE LIS PENDENS TO TUB BONORABLB, TUB JUDGES or THE SAID COURTI AND liOW, this 31st day of July, 1996, comes the plaintiff, David S. Brown Enterprises, by and through their attornoys, Stone LaFaver & Stone, and presents this Reply to Renewed Petition to Strike Lis Pendens and avers as followsl Backaround 1. Admitted. 2. Admit ted . 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. B. Admitted. -1- ~ounds for Reauested Relief 9. A. Denied. It is denied that Bardolf had no authority, express, implied or apparent, to bind BL&B. Testimony elicited at the June 19, 1996, hearing revealed that Bardolf had such authority as was demonstrated by Bardolf's signature on a letter ~f intent signed with a third party, Charles L. Miller, Jr., subsequent to the contract at issue. B. Denied. The writing binding BL&B was signed by Bardolf, the agent of BL&B. C. 1. through 4 denied. It is denied that the March 21, 1996, Bardolf lstter does not comply with the Statute of Frauds. By way of further reply, in order to comply with the statute of Frauds, the property mUst be adequately descrlbed, the consideration must be set forth, and the agreement must be signed by the party to be charged. All these elements have been met. 10. Denied. It is denied that the evidence received by the Court during the June 19, 1996, hearing revealed that the letter was simply a cover letter. The letter speaks for itself and was intended to be a binding agreement. Defendants reversal is only an attempt to accept a higher offer for the subject property. 11. Denied. It is denied that the parties agreed that any further written contract was to be subsequently drafted by counsel. The papers to be drafted were the settl.ement sheet, deeds and any other documents normally associated with a transfer of title. -2- 12. Denied. It is denied that neither party took further aotion to oomp1ete the negotiations. By way of further reply, plaintiff was ready, willing and able to move forward with the oontemp1ated settle- ment and oontinues to be ready, willing and able to settle. 13. Denied. It is denied that the third party refusod to olose solely on the grounds that tho lis pendsns had been indexed. 14. Denied. It is denied that BL&B has been substantially harmed or will oontinue to suffer irreparable harm BO long as the lis pendens remains on the dooket. 15. Denied. It is denied that prospeotive third-party purohas- ers will be prejudioed by the existenoe of the lis pendens. 16. Denied. The order of court of June 24, 1996, speaks for itself. WHEREFORE, the plaintiff respectfully requests this Honorable Court to deny defendants' Renewed Petition to Strike Lis Pendens thereby permitting plaintiff to move forward with an action for specific performance. Respectfully Da - on , Esq ire Supreme Court I.D. No. 39785 STONE LaFAVER & STONE 414 Bridge St., P.O. Box E New Cumberland, PA 17070 (717) 774-7435 Attorneys for Plaintiff -3- N l'.. .~ 'Y") ""- ~ Uo .~ \ it -..!l - '!I ~ r'.\ {',. ~ ~ ., ..,. l":;:l ...i ~ I" I. '~, .,' I (t - 11.11:, I . ,~ - 'r ~ ( I', " ra () c. - , :} ,., .1,:" . .. ',i-, .....,. ''';;' ~ @)f?: ,- , .':} ~L{) 1:'01 ..; [;~I , "Ii 1;rt ~ ( r.:J ' 1'1. I!. In U t:\ , ,