Opinion
CIVIL ACTION No. 02-8042
September 22, 2003
MEMORANDUM AND ORDER
This is an action commenced on September 9, 2002, by Plaintiff, Mill Run Associates ("Mill Run" or "Plaintiff) against Defendants, Locke Property Company, Inc. ("Locke Property") and William E. Locke, Jr. ("Locke") (collectively, "Defendants"), arising out of disputes related to the sale of real property, and to which Defendants have filed an Amended Answer, Affirmative Defenses and Counterclaim. Presently before the court are the parties' cross-motions for summary judgment.
I. Facts and Procedural History
On January 31, 2001, Mill Run and Locke Property entered into an Agreement of Sale (the "Agreement"), by which Mill Run agreed to sell, and Locke Property agreed to purchase, Lot 11 of a Subdivision owned by Mill Run in Upper Macungie Township, Lehigh County, Pennsylvania (the "Township"), for the sum of $2,786,000. The Agreement provided that Locke Property would deposit $150,000 as down payment (the "Deposit") with an escrow agent. The Agreement also provided that Locke Property had a period of sixty (60) days (the "Review Period") in which to perform the buyer's "due diligence," which included the performance of various tests, studies and inspections of Lot 11, and a determination of the "suitability and feasibility" of Lot 11 for Locke Property's intended development and use. In addition, in order to purchase Lot 11, Locke Property had to obtain a permit from the Township (the "Permit"). The Agreement further provided that Locke Property had the right to terminate the Agreement at any time prior to the expiration of the Review Period, in which event the Deposit would be refunded, the Agreement would become null and void, and the parties would be relieved of further liability under the Agreement. Locke Property entered into the Agreement based upon negotiations and course of dealings with Summit Management, which the Agreement denominated as Mill Run's broker, and with John Crampsie of Summit Management ("Crampsie"), who was denominated as Mill Run's individual agent.
On May 7, 2001, the parties entered into a First Amendment to Agreement of Sale, which extended the Review Period to May 31, 2001. The parties subsequently entered into Second, Third and Fourth Amendments to Agreement of Sale, which further extended the Review Period to July 31, 2001, August 31, 2001, and September 30, 2001, respectively. Plaintiff avers that all four (4) Review Period extensions were requested by Locke Property. Locke Property counters that, although it repeatedly notified Mill Run, through Summit Management, that it sought to terminate the Agreement, Mill Run represented to Lock Property that Lot 11 was readily permittable and assisted Locke Property with the permitting process.
Although the initial Review Period ended on April 1, 2001, there is no indication that the parties sought to terminate the Agreement at that time. Subsequent amendments to the Agreement of Sale, each of which extended the Review Period, further indicates that the parties intended the Agreement to remain in effect between April 1, 2001, and May 7, 2001.
By letter dated September 28, 2001, counsel for Locke Property gave written notice to Mill Run that it was exercising its right to terminate the Agreement (the "Termination Notice"). The Termination Notice stated the following:
Pursuant to the applicable provisions of the [Agreement of Sale], as amended, including, without limitation, Paragraph 5 entitled "Review Period," notice is hereby given that Locke Property Company, Inc. does hereby elect to terminate the above-referenced Agreement.
By copy of this letter to the Escrow Agent, I am directing them to return the Deposit together with interest directly to me for return to Locke Property Company, Inc.See Amended Complaint, attached as Ex. "F." Mill Run then returned the Deposit to Locke Property. However, Locke Property avers that Mill Run, through Summit Management and Crampsie, continued to encourage Locke Property to obtain the Permit and represented that the Agreement would be reinstated when the Permit was obtained. As a result, Defendants aver that they continued to expend thousands of dollars to acquire the Permit.
Meanwhile, Mill Run placed Lot 11 back on the market for sale sometime after September 2001, and subsequently entered into negotiations to sell Lot 11 to First Industrial Acquisitions, Inc. ("First Industrial"). On June 5, 2002, First Industrial issued a Letter of Intent to Mill Run to purchase Lot 11, after which First Industrial and Mill Run began drafting an agreement of sale.
Also on June 5, 2002, the Township issued the Permit to Locke Property for Lot 11, after which Locke Property again sought to purchase the property from Mill Run. Thereafter, First Industrial notified Mill Run that both it and its prospective tenant had received information that Locke Property and Defendant Locke were asserting ownership of, an equitable interest in, or "control" of, Lot 11. As a result, First Industrial questioned Mill Run's ability to perform on the anticipated agreement of sale, and requested additional warranties and assurances from Mill Run concerning Lot 11.
On September 9, 2002, Mill Run commenced the instant action by filing a Complaint with the Court of Common Pleas of Lehigh County, Pennsylvania. On October 24, 2002, Defendants removed the action to the United States District Court for the Eastern District of Pennsylvania.
Meanwhile, on November 13, 2002, Defendants filed a Praecipe forLis Pendens. which further encumbered the title to Lot 11.
On November 21, 2002, Mill Run filed an Amended Complaint asserting three (3) counts: (1) preliminary and permanent injunctive relief enjoining Defendants from interfering with Mill Run's negotiations with First Industrial or any other prospective buyer of Lot 11, and striking or withdrawing the Praecipe for Lis Pendens which Defendants filed in this action; (2) declaratory judgment that Defendants have no right, title, interest or claim to Lot 11, and that Mill Run's title is free and clear; and (3) intentional interference with prospective contractual relations. On December 17, 2002, Defendants filed an Amended Answer, Affirmative Defenses and Counterclaim to the Amended Complaint, asserting thirteen (13) counts: (1) breach of contract-specific performance; (2) anticipatory breach of contract-specific performance; (3) breach of contract; (4) fraudulent inducement; (5) negligent misrepresentation; (6) breach of covenant of good faith and fair dealing; (7) quantum meruit; (8) promissory estoppel; (9) unjust enrichment; (10) civil conspiracy; (11) failure of essential purpose; (12) novation of contract; and (13) declaratory judgment as to rights and liabilities under the Agreement, and reimbursement of costs and expenses in reliance on Mill Run's alleged promise to reinstate the Agreement once the Permit was obtained.
By Memorandum and Order dated July 7, 2003, Counts VI (Breach of the Covenant of Good Faith and Fair Dealing), X (Civil Conspiracy), XI (Failure of Essential Purpose) and XII (Novation) of the Counterclaim were dismissed. Discovery having been completed, the parties now present the instant cross-motions for summary judgment. Specifically, Defendants seek summary judgment in their favor on Count III of the Amended Complaint (Intentional Interference with Prospective Contractual Relations), and Plaintiff, Mill Run, seeks summary judgment in its favor on all remaining counts of the Counterclaim.
In their brief in opposition to Plaintiff's motion for summary judgment, Defendants have withdrawn Counts VII (Quantum Meruit) and IX (Unjust Enrichment) of the Counterclaim. See Def's (Counterclaim PL's) Br. Opposing PL's (Counterclaim Def's) Mot. for Summ. J. at 14. Therefore, only Counts I, II, III, IV, V, VIII and XIII of Defendants' Counterclaim remain at issue.
II. Legal Standards
A reviewing court may enter summary judgment where there are no genuine issues as to any material fact and one party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The evidence presented must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby. Inc., 477 U.S. 242. 251-52 (1986). In deciding the motion for summary judgment, it is not the function of the Court to decide disputed questions of fact, but only to determine whether genuine issues of fact exist. Id. at 248-49.
The moving party has the initial burden of identifying evidence which it believes shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). The moving party's burden maybe discharged by demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings and designate specific facts, by use of affidavits, depositions, admissions, or answers to interrogatories, showing that there is a genuine issue for trial. Id. at 324. Moreover, when the nonmoving party bears the burden of proof, it must "make a showing sufficient to establish the existence of [every] element essential to that party's case." Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987) (quoting Celotex, 477 U.S. at 322). Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
III. Discussion
As previously noted, Defendants seek summary judgment in their favor on Count III of the Amended Complaint (Intentional Interference with Prospective Contractual Relations), and Plaintiff Mill Run seeks summary judgment in its favor on all remaining counts of Defendants' Counterclaim.
A. Count III of the Amended Complaint: Mill Run's Claim of Intentional Interference with Prospective Contractual Relations
Defendant moves for summary judgment with regard to Count III of the Amended Complaint, in which Plaintiff Mill Run alleges that Defendants intentionally interfered with prospective contractual relations between Mill Run and First Industrial regarding the sale of Lot 11. Under Pennsylvania law, the elements of intentional interference with prospective contractual relations are: (1) the existence of a prospective contractual relationship between the plaintiff and a third party; (2) a purpose or intent to harm an existing relationship or to prevent a prospective relationship from accruing; (3) the absence of privilege or justification on the part of the defendant; and (4) the occurrence of actual harm or damage to the plaintiff as a result of the defendant's conduct. Brunson Communications. Inc. v. Arbitron. Inc., 239 F. Supp.2d 550, 578 (E.D. Pa. 2002). A "prospective contract" is `"something less than a contractual right, something more than a mere hope.' . . . [I]t exists if there is a reasonable probability that a contract will arise from the parties' current dealings." Alvord-Polk. Inc. v. F. Schumacher Co., 37 F.3d 996, 1015 (3d Cir. 1994) (quoting Glenn v. Point Park College, 272 A.2d 895, 898-899 (Pa. 1971)).
Here, there is no question that Mill Run placed Lot 11 back on the market for sale sometime after September 2001; that Mill Run subsequently entered into negotiations to sell Lot 11 to First Industrial; that on June 5, 2002, First Industrial issued a Letter of Intent to Mill Run to purchase Lot 11; and that negotiations between Mill Run and First Industrial fell apart after First Industrial began to request additional warranties and assurances from Mill Run concerning Lot 11. Both Mill Run and Defendants have marshaled evidence, in the form of various depositions, to support their contrary versions of the role played by Defendants in First Industrial's decision to make its requests for additional warranties and assurances. Because genuine issues of material fact exist as to this claim, Defendants' motion for summary judgment as to Count III of the Amended Complaint is denied.
B. Counts I, II, III and VIII of the Counterclaim: Contract-Related Claims Barred by the Statute of Frauds
Plaintiff, Mill Run, has moved for summary judgment on Counts I (Breach of Contract-Specific Performance), II (Anticipatory Breach of Contract-Specific Performance), III (Breach of Contract) and VIII (Promissory Estoppel) of the Counterclaim on the basis that the counts are barred by the Statute of Frauds. Defendants counter that the Statute of Frauds does not bar these claims.
The Statute of Frauds provides that no interest in land maybe assigned, granted or surrendered unless by deed or note, in writing, and signed by the parties or their agents. See 33 P.S. § 1; see Hostetter v. Hoover, 547 A.2d 1247, 1259 (Pa.Super. 1988) (stating Statute of Frauds requires that agreement for the sale of real estate shall not be enforced unless they are in writing and signed by the seller). The Statute of Frauds generally renders an oral agreement for the sale of land unenforceable and bars the remedy of specific performance. Empire Properties, Inc. v. Equireal, Inc., 674 A.2d 297, 302 (Pa.Super. 1996);Lewis v. Spitler, 403 A.2d 994, 996 ( Pa. Super. 1979). In order to prove the existence of an oral agreement concerning real estate, including an oral modification to a written agreement, the party asserting the existence of the oral agreement or modification must produce evidence that is "clear, precise and convincing." Empire Prop., 674 A.2d at 304;see also Kurland v. Stolker, 547 A.2d 1247, 1250 (Pa. 1987) (stating party asserting oral agreement concerning title to real estate must prove the existence of an oral agreement "beyond a doubt"). "The [alleged] oral contract cannot be inferred only from the declarations of one of the parties [because] [t]o hold otherwise is tantamount to setting aside the Statute of Frauds."Kurland, 547 A.2d at 1375 (citing Haskell v. Heathcote, 69 A.2d 71 (Pa. 1949)).
Here, as previously explained, the parties entered into an Agreement for the sale of Lot 11. The Agreement, dated January 31, 2001, gave the buyer, Locke Property, a defined Review Period in which to perform various tests, studies and inspections of Lot 11. The Agreement provided for Locke Property to provide a Deposit, but also provided that Locke Property had the right to terminate the Agreement at any time prior to the expiration of the Review Period, in which event the Deposit would be refunded, the Agreement would become null and void, and the parties would be relieved of further liability under the Agreement. Thereafter, the parties entered into four (4) Amendments to Agreement of Sale, which extended the Review Period in increments up to September 30, 2001. Each of these Amendments to Agreement of Sale were memorialized in various writings, and the Deposit was not returned on any of these occasions. By letter dated September 28, 2001, however, counsel for Locke Property gave written notice to Mill Run that it was exercising its right to terminate the Agreement, after which the Deposit was returned. (PL's Record, Locke Dep. at Ex. "11"). Because the Termination Notice dated September 28, 2001, is unequivocal and materially different than any of the previous Amendments to the Agreement of Sale, including, but not limited to, the return of the Deposit as provided for by the Agreement, it is clear that Defendants terminated the Agreement.
Defendants argue that, despite the Termination Notice, the parties understood that the entire Agreement was not, in fact, terminated. That is, Defendants argue that the parties entered into an oral modification of the terminated Agreement (or, perhaps more accurately, an oral agreement to revive the terminated Agreement). In support thereof, Defendants principally rely on two (2) things: the parties' course of conduct, which allegedly evidences an intent that the Agreement survived despite the Termination Notice; and a one- (1-) time oral statement made by Crampsie, Mill Run's agent, to Defendant Locke in October 2001, in which Crampsie allegedly stated that Mill Run wanted Locke Property to continue working on the permits for Lot 11 and would proceed to closing once the permits were obtained. (Locke Dep. 5/17/03, 202-203, 323).
Although Crampsie denies ever having made such a statement, (Crampsie Aff, attached to PL's Record at Ex. "F," at ¶¶ 18-20), I will accept Defendants' version of events for purposes of summary judgment.
I conclude that neither of these arguments raises any genuine issue of material fact. Although the parties had entered into several Amendments to the Agreement, each of which extended the Review Period, this does not evidence an intention on the part of Mill Run to extend the Agreement once Defendants sent their Termination Notice of September 28, 2001. As previously stated, the Termination Notice was unequivocal and materially different than any of the parties' prior understandings. Indeed, whereas Mill Run's course of conduct prior to September 28, 2001, evidences an intent to assist Locke Property in the permitting process, the parties' course of conduct subsequent to the Termination Notice demonstrates Mill Run's understanding that the Agreement had been terminated and that Mill Run could proceed with plans to sell Lot 11 to other prospective buyers, including First Industrial.
In addition, Locke Property's reliance on Crampsie's one- (1-) time oral statement to Defendant Locke (in which Crampsie stated that Mill Run wanted Locke Property to continue working on the permits for Lot 11 and would proceed to closing once the permits were obtained) is unavailing. Because Locke Property had already terminated the Agreement by Termination Notice dated September 28, 2001, there was no Agreement in existence to be modified at the time of Crampsie's oral statement to Defendant Locke, nor is there any evidence whatsoever that the parties sought to revive the terminated Agreement. Crampsie's oral statement, assuming it was made, was never memorialized in any writing. In addition, there is no evidence that Crampsie's oral statement is attributable to Mill Run, or that Mill Run had any knowledge of the statement. Indeed, Mary Werge ("Werge") and Jeff Brozyna ("Brozyna"), officers of Lehigh Realty Company (the general partner of Mill Run), specifically denied ever having authorized Crampsie to make such a statement, or having notice or knowledge of the statement. (Werge Aff., attached to PL's Record as Ex. "H," at ¶¶ 14-17; Brozyna Dep., 06/30/03, 73). Moreover, Defendant Locke admitted that he knew that Crampsie did not have any authority on any issue, including no authority to grant extensions under the Agreement. (Locke Dep. 4/24/03, 75; 5/27/03, 195).
Furthermore, evidence in the form of depositions and affidavits indicate that Defendants were cognizant of the fact that no oral agreement existed after they terminated the Agreement in September 2001. For example, in a letter sent by Locke Property to Crampsie and dated March 14, 2002, Locke Property makes no mention of an oral agreement. (Locke Dep., Ex. "12"). To the contrary, the March 14, 2002, letter states that Locke Property is "interested in reinstating the Agreement."Id. In addition, Albert Carolan, legal counsel for Locke Property, testified in his deposition that the parties were "out of contract" after September 2001. (Carolan Dep. 5/27/03, 91-93). This is consistent with statements by Michael Henry, counsel for Mill Run, who stated via affidavit that Carolan telephoned him in approximately July 2002, for the purpose of inquiring whether Mill Run was in negotiation to sell Lot 11 to a third party, and whether Mill Run would be willing to enter into "another contract" with Locke Property. (Henry Aff., attached to PL's Record as Ex. "G," at ¶¶ 20-21).
Finally, even if Crampsie's oral statement is deemed sufficient to create an oral agreement (or an oral modification, or revival, of the original Agreement), any such oral agreement would remain unenforceable under the Statute of Frauds. An oral promise to reinstate an agreement to sell real estate creates an interest in real estate that is itself subject to the Statute of Frauds. United States v. 29.16 Acres, More of Less, Valley Forge Nat'l Historic Park, 496 F. Supp. 924, 928 (E.D. Pa. 1980). In any event, as previously explained, there is no evidence that Crampsie had any authority to bind Mill Run in any respect.
For all of the aforementioned reasons, I conclude that there is no genuine issue of material fact regarding Defendants' claims of breach of contract or promissory estoppel. Therefore, Plaintiff's motion for summary judgment is granted as to Counts I, II, III and VIII of the Counterclaim.
C. Counts IV of the Counterclaim: Fraudulent Inducement
Plaintiff, Mill Run, also moves for summary judgment on Count IV of the Counterclaim, which alleges fraudulent inducement. Under Pennsylvania law, fraud is defined as "anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture." Lind v. Jones, 135 F. Supp.2d 616, 620 (E.D. Pa. 2001) (citing Delahanty v. First Pennsylvania Bank. N.A., 464 A.2d 1243, 1251 ( Pa. Super. 1983)). A claim of fraudulent inducement requires: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Id. (citing Gibbs v. Ernst. 647 A.2d 882, 889 (Pa. 1994)).
Here, the only evidence produced by Defendants in support of any claim of fraud is the same one- (1-) time conversation previously discussed, namely, the conversation between Defendant Locke and Crampsie in October 2001 in which Crampsie allegedly stated that Mill Run wanted Locke Property to continue working on the permits and proceed to closing once the permits were obtained. (Locke Dep. 5/17/03, 202-203, 323). Also as previously discussed, there is no evidence that Crampsie's statement is attributable to Mill Run, or that Mill Run had any knowledge of the statement; and Defendant Locke admitted that he knew that Crampsie did not have any authority on any issue, including no authority to grant extensions under the Agreement. (Werge Aff., attached to PL's Record as Ex. "H," at ¶¶ 14-17; Brozyna Dep., 06/30/03, 73; Locke Dep. 4/24/03, 75; 5/27/03, 195). Because Crampsie's statement is attributable only to Crampsie and not to Mill Run, Defendants have failed to establish the existence of any "representation" by Mill Run.
Similarly, Mill Run cannot be said to have had any "intent to mislead" by way of Crampsie's statement if Crampsie had no authority to make the statement, and if Mill Run did not know the statement had been made. Moreover, the fact that Werge and Brozyna knew that Locke Property continued to seek Township approvals and permits after September 2001 does not create a genuine issue of material fact regarding Mill Run's "intent to mislead" because, as discussed in Part "B," supra, the Agreement had been terminated.
In addition, Locke Property has failed to establish that it "justifiably relied" on Crampsie's oral statement. As previously noted, Defendant Locke knew that Crampsie did not have any authority from Mill Run on any issue, and so its reliance on Crampsie's oral statement cannot be said to have been justified. Moreover, as previously discussed, the Agreement had been terminated by letter dated September 28, 2001; thereafter, as explained by Carolan, legal counsel for Locke Property, the parties were "out of contract." (Carolan Dep. 5/27/03, 91-93). Defendant Locke is a sophisticated real estate investor, developer and manager with over twenty (20) years of experience, and he acknowledged that a written agreement would ultimately be required for the sale of Lot 11. (Locke Dep. 5/27/03, 5; 4/24/03, 128-129). As a result, Defendants cannot have justifiably relied on any new oral agreement to sell Lot 11, or an oral modification of the existing Agreement, particularly under the circumstances presented here.
For all of the aforementioned reasons, I conclude that there is no genuine issue of material fact regarding Defendants' claim of fraudulent inducement. Therefore, Plaintiff's motion for summary judgment is granted as to Count IV of the Counterclaim.
D. Count V of the Counterclaim: Negligent Misrepresentation
Plaintiff, Mill Run, also moves for summary judgment on Count V of the Counterclaim, which alleges negligent misrepresentation. Under Pennsylvania law, negligent misrepresentation requires proof of: (1) misrepresentation of material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with intent to induce another to act on it; and (4) which results in injury to the party acting in justifiable reliance on the misrepresentation. Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999) (citing Restatement (Second) of Torts § 552).
Defendants' claim for negligent misrepresentation is predicated upon the same conduct upon which the claim for fraudulent inducement is based, namely, the one- (1) time conversation between Defendant Locke and Crampsie in October 2001. For all of the same reasons discussed in Part "C," supra, regarding Defendants' claim of fraudulent inducement, I find that there is no genuine issue of material fact as to this claim. Therefore, Plaintiff's motion for summary judgment is granted as to Count V of the Counterclaim.
E. All Remaining Non-Jury Issues
In Count XIII of the Counterclaim, Locke Property seeks declaratory judgment as to rights and interests under the Agreement, and reimbursement of costs and expenses in reliance on Mill Run's alleged promise to reinstate the Agreement once the Permit was obtained. As discussed supra, I grant summary judgment in favor of Plaintiff Mill Run as to all of the state-law counts set forth by Defendants in their Counterclaim. Because I find that Defendants have failed to establish that they have any right, claim or interest in or to Lot 11, and because Count XIII of the Counterclaim seeks declaratory judgment as to these same rights, claims and interests, it follows that Mill Run is also entitled to summary judgment in its favor as to Count XIII of the Counterclaim.
Additionally, the Court's disposition of Defendants' state law claims directs certain conclusions as to the non-jury claims asserted by Mill Run in Counts I and II of the Amended Complaint. In Count I of the Amended Complaint, Plaintiff seeks preliminary and permanent injunctive relief enjoining Defendants from interfering with Mill Run's negotiations with First Industrial or any other prospective buyer of Lot 11, and striking or withdrawing the Praecipe for Lis Pendens which Defendants filed in this action. In Count II of the Amended Complaint, Plaintiff seeks a declaratory judgment that Defendants have no right, title, interest or claim to Lot 11, and that Mill Run's title is free and clear. Given the disposition of this matter as discussed supra, I am compelled to find that Defendants have no right, title, interest or claim to Lot 11; that the Praecipe for Lis Pendens which Defendants filed in this action should be stricken; and that Defendants should be enjoined from interfering with Mill Run's negotiations with any prospective buyer of Lot 11.
IV. Conclusion
For the aforementioned reasons, Plaintiff's Motion for Summary Judgment is granted as to Counts I, II, III, IV, V, VIII and XIII of Defendants' Counterclaim; and Defendants' Motion for Summary Judgment is denied. As a result, this matter will proceed to trial solely on Count III of the Amended Complaint, namely whether Defendants intentionally interfered with prospective contractual relations between Mill Run and First Industrial.
The Court reiterates that Counts VI, X, XI and XII of the Counterclaim were previously dismissed by Order dated July 7, 2003, and that Counts VII and IX of the Counterclaim have been withdrawn by Defendants/Counterclaim Plaintiffs.
In addition, the Court finds that Defendants have no right, title, interest or claim to Lot 11; that the Praecipe for Lis Pendens which Defendants filed in this action be stricken; and that Defendants are enjoined from interfering with Plaintiff's negotiations with any prospective buyer of Lot 11.
An appropriate Order follows.