The opinion of the court was delivered by: Savage, J.
Seeking the return of his deposit money and damages for fraud and misrepresentation in connection with the failed sale of real estate, plaintiff Irvin E. Richter ("Richter") has sued the owner of the property, Nelson G. Pfundt ("Pfundt"), Pfundt's real estate agent and the agency with whom the agent was associated. Richter and Pfundt have filed cross-motions for summary judgment. Each contends that he is entitled to summary judgment as a matter of law, Richter claiming that there was no agreement and Pfundt, that there was an enforceable contract.
The central question is whether Richter and Pfundt entered into a binding contract for the purchase of real property located in Bucks County, Pennsylvania. Richter contends there is no enforceable agreement of sale because Pfundt's changes to the standard form agreement of sale Richter had signed constituted a counter-offer that he did not accept even though third-party defendant James Millspaugh ("Millspaugh"), whom he describes as his associate, initialed the changes. He claims that Millspaugh did not have written authorization to act as his agent as required by the Statute of Frauds. Pfundt, on the other hand, maintains that the parties entered into an enforceable agreement that Richter breached by failing to close on the sale. He argues that the changes to the agreement he made were contemplated by the parties and, in any event, were accepted by Richter's associate who acted with Richter's authority.
Because there are disputed material facts that must be resolved to determine whether Pfundt's changes to the documents signed by Richter constituted a counter-offer rather than an acceptance of Richter's offer and whether Richter's associate had the authority to enter into a contract for Richter, summary judgment is inappropriate. Furthermore, the Statute of Frauds does not afford protection to Richter. Therefore, Richter and Pfundt's cross-motions for summary judgment will be denied.
With respect to the intentional and negligent misrepresentation claims, Richter alleges, in his first amended complaint, that the defendants*fn1 fraudulently represented that Pfundt was the owner of the property when the record owner was a trust. Richter avers that the defendants knew and concealed, or should have known, the identity of the actual owner. As a result of this non-disclosure, Richter contends he sustained damages incurred in proceeding with pre-settlement arrangements and conducting due diligence.
Defendants Leithbridge Co. d/b/a Kurfiss Sotheby's International Realty ("Kurfiss") and Michael W. Richardson ("Richardson"), the real estate agency and the agent, have moved for summary judgment, arguing that there was no misrepresentation because Pfundt had the ability and the authority to sell the property. Additionally, they contend that the undisputed evidence shows that Richter refused to close on the deal not because Pfundt could not convey good title, but because Richter had a falling out with Millspaugh, whom he himself characterizes as his "associate," and was having personal financial difficulties.
Richter cannot satisfy the essential element of materiality of his causes of action for misrepresentation or fraud. Nor can he show that there was a misrepresentation of a material fact. Therefore, Kurfiss and Richardson are entitled to judgment as a matter of law.
Summary Judgment Standard
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In examining the motion, we must view the facts in the light most favorable to the non-movant and draw all reasonable inferences in his favor. Conopco, Inc. v. U.S., 572 F.3d 162, 165 (3d Cir. 2009).
The party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact. Fed. R. Civ. P. 56(c). Once the movant has done so, the opposing party cannot rest on the pleadings. To defeat summary judgment, he must come forward with probative evidence establishing the prima facie elements of his claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). An inference based upon speculation or conjecture does not create a material fact. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).
On August 14, 2008, after negotiating with Pfundt, Richter signed a standard form agreement of sale for the purchase of approximately 40 acres of land in Upper Makefield, Bucks County, Pennsylvania owned by Pfundt and titled in a trust in his name. At the same time, Richter tendered a $350,000.00 deposit. The document signed by Richter omitted the zoning classification, and did not include both the maximum cost for which Richter would be responsible to correct any defects disclosed in any inspection reports before giving him the option to void the agreement, and the structures to be excluded from a wood-destroying insect infestation inspection. Id., ¶¶ 9, 12, 15. Before Pfundt signed the agreement, his attorney, Don F. Marshall ("Marshall"), reviewed it and completed the sections left blank by Richter. Id., ¶¶ 18, 19.
In addition to inserting the zoning classification into the space for it in the document, Marshall completed the sections relating to the cost of correcting defects that might be disclosed in inspection reports and the limited scope of the termite inspection. Paragraph 11(B) of the agreement provided that the purchaser agreed to accept the property if the total costs to correct any conditions discovered by an inspection fell below a specified amount. Marshall testified that he subsequently inserted "3,000" into the blank for that amount.
The standard form had a space to describe structures that the parties agreed to exclude from insect infestation inspection. Marshall inserted the words "in main house only" in the blank for excluded structures, thus limiting ...