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3. 1)lnlnllff did nol l1Ie n summons or n cumplnlnltothc previous docket number,
nlthough J>lnlnllff c1l1lms 1111 cquhnhlc ownership interest in Ihe premises.
4. On June Ill, 1996. the l>efendnnls flied nn Emergcncy Pctitlon to Strlkc to
orlglnsl lis pcndcns, nrllulng In pari Ihnt thc Plnlnllff had not fullowcd thc proper lis pendens
Ollng procedure.
5. On June 19, 1996, Ihls Cuurt held u henrlng onlhe mcrits of thc Plaintiff's
underlying claim IInd It also consldcred thc proccdural propriety of Plulntlff's lis pendcns.
6. By Memorandum Opll1lonllnd Order dated June 24, 19%, this Court granted the
Emcrgcncy Pelitlon to Strike on the grounds thut Plaintiff had improperly indexl:d the lis
pendens without commencing uny undcrlylng IItlgllllon, hutthc Court did not address the
merits of Plaintiff's claim.
7. As instructed by the Court's Memorandum Opinion, Defcndants now prcscntthis
Rencwcd Petition to Strike Lis Pcndcns In responsc to Plaintiff's r"ccnt tiling of a Wril of
Summons and re-Indexlng of thc Lis Pcndens In this mattcr.
8. Plaintiffs underlying claim remains the same, to wit: that a Iclfcr senl from Russ
Bardolf ("Bardolf") of Shipley Oil Company ("Shipley") to Plaintiff on March 21, 1996,
constilutes an enforceable written contract that requires BL&B to scllthc premises 10
Plainll ff.
Grounds for I{Cllucstcd Rcllef
9. As sel forlh In the Defendants' previous Petition to Strike, t1lL~re lire several
reusuns why the Bardolf leller of Mllrch 21, 1996, is not suflicientto obligate BL&B to sell
lhe premises to lhe PlaiJlIlff fur the Illllowlng rellSllllS:
A. Allllltlllles relevant hereto, Bardolf was neither a principal nor llll agenl
uf B1.&B, but instead WIIS merely an employee of Shipley, the broker of record
for BL&D, Wilh no authority, express. implied or nppnrent, to bind IlI.&B.
D. There exists no writing regarding the sale of the premises to Plnintlff
signr-d by a principal or authorized agent of 1l1.&Il, and therefore, no binding
agreement can exist between the IlL&1l and the Plaintiff.
C. Even If the March 21, 1996 Bardolf letter were actually executed by
B1.&B or an authorized agent thereof, it would not comply with the Stalute of Frauds,
which requires all essential terms of a contrllct111~ set forth in the writing, for the
following reasons:
1. There was no "meeting of the minds" necessary to creale a binding
agreement; many mailers relevant to the potential sale were left unresolved
belween the parties, most notably an agrccment regarding the environmcntal
condition of the premises and any future clean-up responsibility or liability;
2. There was no agrccment by the Plaintiff to be bound to purchase
lhe premises;
3. There was no agreement with respect to settlement location and
date, deed preparation. transfer tax. title Issues. or tax prorations;
4. During prcllmllHlry ncgl)tintlons between the parties, BL&B
specltlcally notitled Plaintiff !lUll It would rcqulre II deed restriction prohibiting
the future sale of gasoline or conveniencc slore products on the premises, but
the leller of March 21, 1996 makes no mcntion of this requlremcnt;
10. The evidence n:celved by this Court during the June 19, 1996 hcurlng reveals
that Bardolf's leller was simply a "cover Icllcr" for u package of cnvironmenlul reports, and
only eSlabllshed the purchase prlcc of the premises, but was not Intcnded 10 be a binding
agreement.
II. The parties agreed that n wrillcn contract contuining all of the esscntlal terms of
the transaction would be subsequcntly draftcd by counscl and signcd by the parties, and
Plaintlrrs last contact with Bardolf, prior 10 asserting that a cor1lmct exists, was a voice mail
message asking whether Plaintiff's counselor BL&B's counsel would draft an agreemcnt.
12. Thereafter, when neithcr party took furthcr action to complete the negotiations,
BL&B accepted an offcr to purchase the prcmises and a deposit from a third party.
13. The third party, howevcr. refused to closc thc sale and tcrminated its agreement
with BL&B, solely on the grounds that a lis pendens has been Indcxed by Plaintiff against the
property.
14. Accordingly, BL&B has already been substantially harmed by Plaintiff's actions,
and it will continue to suffer irreparable harm in not b'ling able to transfer thc premises so
long as the lis pendens remains on the docket.
15. In addition, prospective third-party purchasers will be prejudiced by the existence
of the lis pendens as well.
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IN TRB COURT or COHKON PLEAS OF
CUMBBRLAND COUNTY, PENNSYLVANlA
NO. q6 -35'"5".3 ~ r~
IN BQUITY
DAVID s. BlOWN INT!RPRtSES,
Plaintiff
II. L. , B. ASSOC:. , and SUll'L~Y OIL
COMPANY,
Defendant.
PllAEOIPE
TO Till PRO'.rIlOIlOURY I
P1G.DG enter Ilia pendens aqainet B. L. . B. ASSOC., .
P~nnDylvani& limited partnerahip, and ~Rl~~~Y OIL COMPANY in reference
to the r.al eetate known and numbered al 5200 SimpaoD Farry Road,
Lower Allen Townahip, Cumberland County, Penn.yivani., .. more fully
d..aribed in the attaohed exhibit.
STONI! LarAWR
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"UM No. 11
M.L TlIAT ell/ITAIII tuat ar pue.l lit hnr.l ..t.uae. In tAw.r
Allin 'I'ewnllhlp, CUlIbarl.nd Count.y, Pennayivanla, lJaUl1dld and
d.lcrlbed In .ccordlnaa ~Ith I .urvev .nd plan th.rft~t ~ada lJy D,P,
Rlthnllll.rllar, R.q1atera.s Surveyor, d.tad Detou.r 11, 19U, III
~aUow.:
BEOIHIIIIIO at ~n Iran plp. at th. Intara.etlQn ot thu Southa~n
r lqht ot way 11 na at S IlIp40n t'nry Road 'L, It. 110, 510) .nd th.
SouthwUtun rl'lht Qt w.y llna ot W..lay Dr.lv. (L.R, Ho. 210691/
thonoe alontjJ the SOllthwOlltarn rlqht of w.y lln. ot W~lIhy Orllle
(L.R. 110. 1l069) Sauth 44 11aqr... 50 .1nut.. En.t a dist.nce ot
L~O,O (aat to an Irlm plpa at: llnd. n~w ar tOnlarly ,,~ Wlnd.ar
AII.aellt.., Ine., thlnea 110nq land. naw or rot~.rly ot Wind.Qr
.....oel.ts., Inc. South 10 dl\lr,u 20 mlnuel. lI..st a dht.nc~ ot
150.0 ~...t to on Iron pip., th.neo 110nq 11m. north 4~ dallt..a ~O
.inuta. Weill: I dlstlnc. or 150.0 hIlt to In Iron Illpl .t tha
South.rn .I\lht ot woy lln. o~ 31mpaon rarry Ko.d (L.R, No, 510) I
the~~" .long thft Southern right ot way ltnft of Simpson rer~. Road
(L,R. Ifa. "01 1I0rth eo degruu 20 ..tnutu ' ,..~ ~ ,ust.nc" or aU.a
tut to ttl. pllcl! 0' ur.alInfINQ. CONTAIIIU;'; lB. JIlJ 'quara toat.
TIUtC~ NO. Zl
TI1a Or.ntor .tllo ..ml.a., rd.a".. Ind quit olal.. and by
thea" pra...nta dO.1 r..il., r.l..sa and quit olela unto the .ald
(It:Bnh.., III Its rlqht., Htl. and Intlrnt in thlt, portion 0'
tAqldatlltlt Rauta 21069 lying betli..n tha c.ntar line ot Shulsy
Road and the W."tetn right-at-way lln. 0' Leqial.tiv. 21069, and
allo in th.t porllon or L.ql.1atllte Routs 570 IYlnq batw..n the
cant.r lIn. ot SbplOIl rarry Rood snd tho! Southern riqht-ot-way
line ot anld Leqlllltilte RQuta 570.
B III 110 TlfE SAHli pualan which W.dl.y Corporation. .
penn.ylv.nl. corporation, by It. dead datad Janulry 11. 1967, and
raoord.d In the ot( I e. at the Record.. 0 t O.ed. in Ind tor
C::ulb..hnd CQunty, Pennayl"ani. In Rac:o.d Book 1-22, PDqa J11,
qnntad and oonveyerl unto HObl1 all Corporation, . N." YlJrk
oarporatlon, a..ntor herein.
BEING part of tho uame prltllliuB which MOBILE OIL CORPORATION, II New
yo.k carpor.Lion, by their daed dated Oeclmber 29, 1994, and recorded In
rho Office of tho Recordor of D.ads for Cu~berland County, Ponnlylvanla,
on J.~uar>, 3, 199~, In Record 8oo~ 117. Psge 25, granted and conveyed unto
B L 4 B Ae5ocI3te., .! P~nn.ylvani~ limited partnar.hlp,
mT>t. P.f)~
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DAVID S. BROWN ENTERPRISES, I
Plaintiff I
I
V. I
I
BL&B ASSOCIATES, and SHIPLEY I
OIL COMPANY, I
Defendants I
IN THE COUR'r OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-3553 EQUITY TERM
IN REI RENEWED PETITION TO STRIKE LIS PENDENS
BEFORE SUEELY. P.J.
OPINION AND ORDER OF COURT
Before the oourt is the renewed petition of defendants BL&B
Assooiates (BL&B) and Shipley oil Company (Shipley) filed on July
3, 1996, to str.ike a lis pendens entered in the above-captioned
action by plaintiff David S. Brown Enterprises (Brown
Enterprises). Brown Ente~prises answer.ed the petition on
August 1, 1995, and the parties have agreed to allow this court
to decide the matter based on the record of a hearing held on
June 19, 1996.'
The facts adduced at the hearing on this matter, summarized
in our opinion of June 24, 1996, indicate that this matter arose
out of negotiations about real estate located at 5200 Simpson
Ferry Road, Mechanicsburg, Cumberland County (5200 Simpson Ferry
Rd.). The parties had some preliminary discussions about the
property in early 1995, but never progressed beyond preliminary
negotiations. In early 1996, BL&B, through Russell Bardolf
(Bardolf), contacted Brown Enterprises and offered to sell the
'The June 19, 1996, hearing arose out of an earlier petition
to strike a lis pendens filed in an action at 96.2294 Civil Term.
We filed an opinion on June 24, 1996, striking the lis pendens
because there was no underlying litigation upon which to base a
lis pendens.
'I
NO. 96-3553 EQUITY TERM
property at 5200 Simpson Ferry ad. On March 15, 1996, Bardolf
sent a fax to Arthur Adler (Adler) at Brown Enterprises
reiterating that BL&B had an active interest in Belling the
propercy. Several oonversation~ followed between Bardolf and
Adler or Howard Brown leading to a letter Bent on March 21, 1996
from Bardolf to Howard Brown. Among other thinge, the letter
statedr "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 n~ither party took further action toward
settlement, 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, Drown 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
lis pendens at 96-2294 Civil, which was stricken by our opinion
and order of June 24, 1996. On June 27, 1996, Brown Enterprises
commenced the above-captioned Equity action by writ of summons
and filed a eecond lis pendens.
DISCUSSION
We recognize initially that a court may cancel a lis pendens
where it operates harshly or unjustly. See, 14 Standard Pa.
Practice 2d 579129. Clearly, if the lis pendens in the present
matter is not properly entered, then it operates unjustly on the
2
NO. 96-3553 EQUITY TERM
defendants. BL&B and Shipley have asserted three grounds upon
whioh they oontend this oourt should find that no oontraot of
sale existed here and therefore strike the lie pendens. They
contend that any claim based on an alleged contract between the
parties lacks mer.it, that the lis pendene produces undue harm and
prejudice to petitioners and to prospeotive third party
purchasers, and that Brown Enterpriseo, by instituting this
action on the Law side of the Court/ has acknowledged an adequate
remedy at law and therefore lis pendens, an equitable remedy, is
impropflr.
With regard to the petitioners' third contention, we note
that this case is now on the Equity sidR of the court. Therefore
the third contention is moot. Ae to petitioners' second
argument, we agree tha~ the lis pendens is a hardship to them and
to prospective purchasers. However, we cannot decide if it is an
~ndue hardship without deciding whether the parties entered into
a valid contract. Therefore, we will address petitionors'
initial argument, for that will dictate our action.
It is well established in Pennsylvania that in order to
satisfy the statute of Frauds, contracts for the sale of real
property must be in writing. 33 P.S. S1 et sea. Furthermore,
the writing must be signed by the party granting the interest.
Lona v. Browq, 393 Pa.Super 312/ 317/ 582 A.2d 359/ 361 (1990).
The writing must set fort,h the essential terms of the contract,
and one or more writings may be used to satisfy the statute as
3
NO. 96-3553 EQUITY TERM
long as all are Bigned or attaohed to a signed writing. 14.
In the present oase, the writing offered by Brown
Bnterprises to take this oase out of the Statute of Frauds ia the
above-quoted letter from Bardolf to Howard Brown. Although the
letter states, "Shipley aocepts your offer to pay $75,000 for
this property in an as is condition," it also atates, "We look
forward to an expeditious review of these documents and
settlement." Based on the testimony we heard sbout this letter,
we are satisfied that it wes part of the negotiation process and
not an agreement of sale. Simply put, there was more to be done
after the letter before an agreement would be consummated. The
letter was mainly concerned with the delivery of environmental
reports, which were the subject of negotiations between the
parties. Furthermore, the letter stated clearly that the reports
should be reviewed, and then settlement would take plaoe.
We recognize that Brown Bnterprises believes that this
letter represents the agreement of the partieo, and we are
cognizant of Howard Brown's statement that he often conducts
business in this manner. Notwithstanding Brown Bnterprises'
normal busineso practices, when the sale of real property is
involved, the law requires a writing clearly setting out the
terms, describing the land and signed by the party granting the
interest. That convention was simply not followed here.
The case cited above, Lona v. Brown, is quite instructive in
this matter beoause it describes the types of writings that are
4
NO. 96-3553 EQUITY TERM
sufficient to satisfy the statute of Frauds. In 1&J1g, following
a series of negotiations, the parties agreed to transfer a parcel
of real property located in a residential subdivision. HowBver,
when the buyer put stakes on the property to mark the proposed
location of a house, the seller balked. The buyer sued for
specific performance and the seller claimed that the Statute of
Frauds had never been satisfied and that the parties had never
reached an agreement.
The Superior Court decided on appeal that the Statute of
Frauds had boen satisfied. The Court credited three documentsl a
deed that was written and signed but not deliveredl a release of
restrictions signed by the parties and all landowners in the
subdivision where the property was located I and a "Restrictive
Agreement" which limited tho use of the property. The Superior
Court found that thess documents, all signed by the pat'ties in
interest, contained the essential elements to take the case out
of the Statute of Frauds. In the present case, we have only a
letter from a real estate broker discussing environmental reports
and terms and stating that settlement was anticipated. We think
it goes too far to hold that such a communication represents an
agreement of sale sufficient to satisfy the Statute of Frauds,
and we shall not so hold.
5
3. Plaintiff did not tile a summons or a complaint to the previous do.:ket number.
although Plaintiff claims un equitable ownership il1terest In the premises.
4. On June 10, 1996, the Defendants tilcd an Emergcncy Petition to Strike to
nr;2inallis pendens, arguing in part lhutthe Plaintiff hlld nOl followcd the proper lis pendens
filing procedure,
5, On June 19, 1996, this Court held a hcarlng on the mcrits of the Plaintiffs
underlying claim and It also consldercd the procedural propricty of Plaintiff's lis pendens.
6. By Memorandum Opinion and Order dutcd June 14. 1996, this Court granted the
Emergency Petition to Strike on the grounds thuI Plaintiff had improperly Indexed the lis
pendens without commencing any underlying litigation. but the Court did not address the
merits of Plaintiffs claim.
7. As Instrucled by the Court's Memorandum Opinion. DcfendanlS now present this
Renewed Petition to Slrike Lis Pendcns in response to Plaintiffs recent tiling or' a Writ of
Summons and re-indexlng of the Lis Pcndens In this matter.
8. Plaintiffs underlying claim remains the same. to wit: that a Ictter sent from Russ
Bardolf ("Bardolf') of Shipley Oil Company ("Shipley") to Pluillliffon March 21,1996.
constitutes an enforceable written contract that requires BL&B to sell the premises to
Plaintiff.
.,.-J)
Orounds for Requested Relief
9. As set forth in Ihe Defendilnts' prevIous Petition to Strike. there are several
reasons why the Bardolf ICllcr of March ~ I. 19lJfJ. is not suftident to obligate BL&B to sell
th~ premises to the Plaintiff lilr the followmg rCilsons:
A. At all times relevalll hereto. Bardolf was neither a principal nor an agent
of BL&B. but instead was merely iln employec of Shipley. Ihe broker of recCJrd
for BL&B. with no authority, express. Implied or apparent. to bind BL&B,
B. There exists no writing rcgilrding thc sale of the premises to Plaintiff
signed by a principal or authorized agcnt of BL&B, ilnd therefore. no binding
agreement can exist between the BL&B and thc Plaintiff,
C. Even if the March 21. 1996 Bardolf leller were ,Ictually executed by
BL&B or an alllhorized ,Igent thereof, it would not complv with the Statute of Frauds.
which requires all essential terms of a contract be set forth in the writing, for the
following reasons:
I. There was no "meeting of thc minds" necessary to create a binding
agreement: many matters relevant to the potential sale wele left unresolved
between the parties. most nOlably an agreement regarding the environmental
condition of the premises and any future clean-up responsibility or lia~i1ity;
2. There was no ilgrecment by the Plaintiff to be bound to purchase
the premises:
J. There was no agreemcnt with respect to settlement location and
date. deed preparation. transfer tax. titi<: issues. or lax prorations:
.l. Puring preliminary negotiations between the parties. BL&B
specillclllly nOlit1ed Plalnliff that II would require a ueeu reslrictlon prohibiting
the future sllle of gasoline or CllllWllIence slore "rouucts on the premises. hut
the leller ot March 21. 1991] Illake:i no mention of this requirement:
10. The evidence received by this Court during the Junc 19. 1.991] hearing reveals
that Bardolfs leller was simply a "cover letter" for a packagc of environmental reports. and
only established the purchase price ot the premises. hut was not intended to be a binding
agreement.
11. The parties agreed that a written contract containing ali of the essemial terms of
the transaction would be subsequently drafted by courtsel and signed hy the parties. and
Plaintiffs last contact with Bardolf. prior to asserting that a contract exists. was a voice mall
message asking whether Plaintiff's counsel or BL&I3's counsel would draft an agreement.
12. Thereafter. \~hcn neither party took further action to complete the negotilltions.
BL&B accepted llJ1 otfer to purchase the premises and a deposit from a third party.
[3. The third party. however. refused to close the sale and tl~rminated its agreement
with BL&B. solely on the grounds that a lis pendens has been indexed by Plaintiff against the
property.
14. Accordingly. BL&B has already been substantially harmed by Plaintiffs actions.
llJ1d it will continue to sutfer irreparable harm in not being able 10 transfer the premises so
long as the lis pendens remains on the docket.
15. In addition. prospectiw third-party purchasers will he prejudiced by lhe existence
of the lis pendens as well.
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v.
IN THE COURT or COHHON PLEAS OF
CUMBBRLAND COUN'l'Y, PENNSYLVAtlIA
NO. f/6-3S"S3 ~I~
IN EQUITY
DAVID s. BROWN ENTERPRISES,
Plaint:iff
a. L. , B. ASSOC., and 5DIPLEY OIL
COMPANY,
Defendants
PRAECIPE
TO Tn: PRO'1'BONOTARY I
Please enter a lis pendens against B. L. , B. ASSOC., a
Pennsylvania limited partnership, and SHIP~Y OIL COMPANY in ~eferenoe
to the real estate known and numberld AI 5200 5~pBon Ferry Road,
tower Allen TownBhip, Cumberland County, Pennlylvania, aa more fully
d.lc~ibed in the aetaohed exhibit.
STONE LaFAV'ER , SiN! I
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- ':~ New Cumberland, PA 17070
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DAVID S. BROWN ENTERPRISES,
Plaintiff
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 96 - j ,').) 3 tfl4.-~ TJ2~.",-,
I IN EQUITY
I
I
v.
B. L. & B. ASSOC., and SHIPLEY OIL
COMPANY,
Defendants
PllAECII>E
TO THB PROTHONOTARY I
Please enter a lis pendens against B. L. & D. ASSOC., a
Pennsylvania limited partnership, and SHIPLEY OIL COMPANY in reference
to the real estate known and numbered as 5200 Simpson Ferry Road,
Lower Allen Township, Cumberland County, Pennsylvania, as more fully
described in the attached exhibit.
By
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Attorneys for Plaintiff
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