Flanagan, S. v. Peoples Choice Fed. Credit Union ( 2016 )


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  • J-S72002-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    SCOTT FLANAGAN, INDIVIDUALLY AND              IN THE SUPERIOR COURT OF
    T/A FLANAGAN AUTO DETAILING                         PENNSYLVANIA
    Appellants
    v.
    PEOPLES CHOICE FEDERAL CREDIT
    UNION
    Appellee                 No. 797 MDA 2016
    Appeal from the Order Dated April 13, 2016
    In the Court of Common Pleas of Lackawanna County
    Civil Division at No(s): 2014-03496
    BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
    MEMORANDUM BY GANTMAN, P.J.:                  FILED NOVEMBER 02, 2016
    Appellant, Scott Flanagan, individually and trading as Flanagan Auto
    Detailing, appeals from the order of the Lackawanna County Court of
    Common Pleas, in this breach of contract action, that sustained the
    preliminary objections of Appellee, Peoples Choice Federal Credit Union, to
    Appellant’s amended complaint and dismissed the amended complaint with
    prejudice. We affirm.
    The relevant facts and procedural history of this case are as follows.
    In 2014, Appellant initiated an action against Appellee before a district
    magistrate.    On June 4, 2014, the district magistrate entered judgment in
    favor of Appellant and against Appellee in the amount of $6,336.50.
    _____________________________
    *Retired Senior Judge assigned to the Superior Court.
    J-S72002-16
    Appellant filed a timely notice of appeal in the Lackawanna County Court of
    Common Pleas on June 25, 2014; and on July 7, 2014, Appellant filed a
    complaint against Appellee for breach of contract.      On August 11, 2014,
    Appellee filed preliminary objections to Appellant’s complaint, in which
    Appellee asserted Appellant had failed to plead sufficiently specific facts and
    attach to the complaint copies of documents to demonstrate a contract
    between the parties existed. Appellant opposed the preliminary objections.
    By order dated May 21, 2015, the court sustained Appellee’s preliminary
    objections with leave to file an amended complaint within 30 days.
    On July 10, 2015, Appellant filed an untimely amended complaint for
    breach of contract and assumpsit.     In Count I of the amended complaint,
    Appellant asserted that on January 7, 2014, Appellee gave written notice to
    its members and the public of its intention to solicit bids on a 2010 Ford
    Focus.   Appellant attached to the amended complaint a copy of Appellee’s
    “Invitation to Bid,” addressed to members of the Appellee credit union,
    which provided that Appellee would take bids on the vehicle on February 14,
    2014, and sell the vehicle to the bidder whose bid was closest to the asking
    price of $12,075.00.    Appellant claimed he gave Appellee an oral bid of
    $6,500.00 before the deadline, and Appellee indicated it would accept and
    seal Appellant’s bid. Appellant alleged that Appellee had previously accepted
    oral bids from Appellant on behalf of his customers. Appellant averred that,
    on February 14th, Appellee informed Appellant that his bid was insufficient,
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    even though it was the closest to the asking price. Appellant maintained in
    the amended complaint that Appellee had entered into a contract with him
    for the sale of the Ford Focus because Appellee had agreed to accept the
    closest bid to the asking price, and his bid was the closest bid. Appellant
    charged Appellee with breach of that contract between the parties and
    demanded an award of damages in the amount of $5,575.00, representing
    the difference between his bid of $6,500.00 and the asking price of
    $12,075.00, plus interest, costs, and fees.
    In Count II of the amended complaint, Appellant claimed he detailed,
    stored, and displayed the 2010 Ford Focus at Appellee’s request, pending its
    sale.    Appellant asserted he inferred, and the surrounding circumstances
    implied, that Appellee would pay Appellant to detail, store, and display the
    vehicle. Appellant averred Appellee failed to pay Appellant for these services
    and is liable to Appellant in the amount of $600.00, plus interest, costs, and
    fees, for detailing, storing, and displaying the Ford Focus.
    Appellee filed preliminary objections to Appellant’s amended complaint
    on August 18, 2015.        In its preliminary objections, Appellee asserted
    Appellant failed to plead sufficiently specific facts in the amended complaint,
    and Appellant lacked capacity to sue. Appellee claimed Appellant failed to
    allege in the amended complaint that he was a member of the Appellee
    credit union. Appellee submitted Appellant also failed to plead specific facts
    to establish that Appellant, as a non-member of the credit union, was
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    entitled to bid on the Ford Focus. Appellee also averred Appellant failed to
    plead sufficient facts to establish when and where: (a) Appellee allegedly
    made the Invitation to Bid open to the general public; and (b) Appellee had
    previously accepted bids from Appellant on behalf of his customers.
    Appellant filed a brief in opposition to Appellee’s preliminary objections to
    the amended complaint on November 12, 2015.
    By order dated April 13, 2016, the court sustained Appellee’s
    preliminary objections to the amended complaint and dismissed it with
    prejudice. Appellant filed a timely notice of appeal on May 12, 2016. On
    June 13, 2016, the court ordered Appellant to file a concise statement of
    errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b); and
    Appellant timely complied on June 15, 2016.
    Appellant raises two issues for our review:
    WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
    DISCRETION IN SUSTAINING…APPELLEE’S PRELIMINARY
    OBJECTIONS, ON THE GROUND OF LACK OF CAPACITY TO
    SUE, WHERE APPELLEE FAILED TO RAISE SUCH
    CHALLENGE IN ITS ORIGINAL PRELIMINARY OBJECTIONS
    TO APPELLANT’S COMPLAINT AND APPELLANT CAN SUE
    AND OBTAIN RELIEF UNDER THEORIES OF BREACH OF
    CONTRACT AND ASSUMPSIT?
    WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
    DISCRETION IN HOLDING THE AMENDED COMPLAINT WAS
    NOT SUFFICIENTLY SPECIFIC TO ENABLE…APPELLEE TO
    PREPARE A DEFENSE?
    (Appellant’s Brief at 4).
    In his first issue, Appellant argues Appellee improperly challenged
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    Appellant’s capacity to sue in its preliminary objections to the amended
    complaint.     Appellant claims Appellee should have raised all objections
    applicable to the original complaint, including Appellant’s capacity to sue, in
    Appellee’s preliminary objections to the initial complaint.     Even if Appellee
    properly raised its objection to Appellant’s capacity to sue, Appellant avers
    Appellee’s challenge fails because Appellant has the capacity to sue as a
    living adult person without disability.          Appellant also submits Appellee
    confused capacity to sue with the concept of standing, which Appellee could
    not have raised in preliminary objections because standing is not an
    enumerated ground for preliminary objections under Pa.R.C.P. 1028(a). 1
    In his second issue, Appellant argues his amended complaint is
    sufficiently specific.   Appellant maintains he sufficiently alleged facts in his
    amended complaint to establish how Appellee provided the Invitation to Bid
    to the public. Appellant also avers Appellee is not entitled to more detail in
    the amended complaint regarding the Invitation to Bid because Appellee
    ____________________________________________
    1
    In its preliminary objections to Appellant’s amended complaint, Appellee
    challenged Appellant’s capacity to sue in light of the Invitation to Bid.
    Appellee asserted the Invitation to Bid was addressed to members of the
    Appellee credit union; and Appellant was not a member. Appellee claimed
    Appellant consequently did not have the capacity to sue Appellee for an
    alleged breach of contract based on the Invitation to Bid. Appellant did not
    reference the Invitation to Bid in the original complaint; Appellant also did
    not attach a copy of the Invitation to Bid to the original complaint. As a
    result, Appellee did not raise issues stemming from the Invitation to Bid in
    its preliminary objections to the initial complaint. Thus, Appellee properly
    raised objections arising from the Invitation to Bid in its preliminary
    objections to the amended complaint.
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    knows those details. Appellant concludes this Court should vacate the order
    dismissing his amended complaint and remand with instructions to Appellee
    to file an answer to the amended complaint within 20 days. We disagree.
    Our scope and standard of review in examining a challenge to an order
    sustaining preliminary objections are as follows:
    In determining whether the trial court properly sustained
    preliminary objections, the appellate court must examine
    the averments in the complaint, together with the
    documents and exhibits attached thereto, in order to
    evaluate the sufficiency of the facts averred. Clemleddy
    Constr., Inc. v. Yorston, 
    810 A.2d 693
     (Pa.Super.
    2002)[, appeal denied, 
    573 Pa. 682
    , 
    823 A.2d 143
    (2003)]. When sustaining the trial court's ruling will result
    in the denial of claim or a dismissal of suit, preliminary
    objections will be sustained only where the case is free and
    clear of doubt, and this Court will reverse the trial court’s
    decision regarding preliminary objections only where there
    has been an error of law or abuse of discretion. 
    Id.
    Rambo v. Greene, 
    906 A.2d 1232
    , 1235 (Pa.Super. 2006).
    Pennsylvania Rule     of Civil Procedure 1028 governs preliminary
    objections, and states, in relevant part, as follows:
    Rule 1028. Preliminary Objections
    (a) Preliminary objections may be filed by any party to
    any pleading and are limited to the following grounds:
    *     *     *
    (3)   insufficient specificity in pleadings;
    *     *     *
    (5)   lack of capacity to sue…;
    *     *     *
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    (b) All preliminary objections shall be raised at one time.
    They shall state specifically the grounds relied upon and
    may be inconsistent. Two or more preliminary objections
    may be raised in one pleading.
    *    *    *
    (f)    Objections to any amended pleading shall be made
    by filing new preliminary objections.
    Pa.R.C.P. 1028(a)(3), (a)(5), (b), (f). Concerning our review of a challenge
    to an order sustaining preliminary objections for insufficient specificity, we
    have stated:
    The pertinent question under Rule 1028(a)(3) is “whether
    the complaint is sufficiently clear to enable the defendant
    to prepare his defense,” or “whether the plaintiff's
    complaint informs the defendant with accuracy and
    completeness of the specific basis on which recovery is
    sought so that he may know without question upon what
    grounds to make his defense.” Ammlung v. City of
    Chester,…
    302 A.2d 491
    , 498 n. 36 ([Pa.Super.] 1973)
    (quoting 1 Goodrich–Amram § 1017(b)–9).
    Rambo, 
    supra at 1236
    .
    The pleadings standards set forth in Pa.R.C.P. 1019 provide, in
    relevant part:
    Rule 1019. Contents of Pleadings.            General and
    Specific Averments
    (a) The material facts on which a cause of action or
    defense is based shall be stated in a concise and summary
    form.
    *    *    *
    (f) Averments of time, place and items of special damage
    shall be specifically stated.
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    *    *    *
    (h) When any claim or defense is based upon an
    agreement, the pleading shall state specifically if the
    agreement is oral or written.
    Note: If the agreement is in writing, it must be attached
    to the pleadings. See subdivision (i) of this rule.
    (i) When any claim or defense is based upon a writing,
    the pleader shall attach a copy of the writing, or the
    material part thereof, but if the writing or copy is not
    accessible to the pleader, it is sufficient so to state,
    together with the reason, and to set forth the substance in
    writing.
    Pa.R.C.P. 1019(a), (f), (h), (i). Rule 1019 specifically requires:
    the pleader to disclose the material facts sufficient to
    enable the adverse party to prepare his case. A complaint
    therefore must do more than give the defendant fair notice
    of what the plaintiff’s claim is and the grounds upon which
    it rests.     It should formulate the issues by fully
    summarizing the material facts. Material facts are ultimate
    facts, i.e., those facts essential to support the claim.
    Evidence from which such facts may be inferred not only
    need not but should not be alleged…. Allegations will
    withstand challenge under [Rule] 1019(a) if (1) they
    contain averments of all of the facts the plaintiff will
    eventually have to prove in order to recover, and (2) they
    are sufficiently specific so as to enable defendant to
    prepare his defense.
    Lerner v. Lerner, 
    954 A.2d 1229
    , 1235-36 (Pa.Super. 2008).              Material
    facts include all the facts a plaintiff will eventually have to prove in order to
    recover. 
    Id. at 1236
    .
    “To maintain a cause of action in breach of contract, a plaintiff must
    establish: (1) the existence of a contract, including its essential terms; (2) a
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    breach of a duty imposed by the contract; and (3) resulting damages.”
    Lackner v. Glosser, 
    892 A.2d 21
    , 30 (Pa.Super. 2006) (citing Gorski v.
    Smith, 
    812 A.2d 683
    , 692 (Pa.Super. 2002), appeal denied, 
    579 Pa. 692
    ,
    
    856 A.2d 834
     (2004)).     “For a contract to be enforceable, the nature and
    extent of the mutual obligations must be certain, and the parties must have
    agreed on the material and necessary details of their bargain.”     Lackner,
    
    supra
     (citing Peck v. Delaware County Board of Prison Inspectors, 
    572 Pa. 249
    , 260, 
    814 A.2d 185
    , 191 (2002)).          “An enforceable contract
    requires, among other things, that the terms of the bargain be set forth with
    sufficient   clarity.”   Lackner,   
    supra
       at   30-31   (citing   Biddle   v.
    Johnsonbaugh, 
    664 A.2d 159
    , 163 (Pa.Super. 1995)).                  Clarity is
    particularly important where an oral contract is alleged. Snaith v. Snaith,
    
    422 A.2d 1379
    , 1382 (Pa.Super. 1980).
    There must be a “meeting of the minds” for an agreement to exist.
    Accu-Weather, Inc. v. Thomas Broadcasting Co., 
    625 A.2d 75
    , 78
    (Pa.Super. 1993).
    [T]he very essence of an agreement is that the parties
    mutually assent to the same thing…. Without such assent
    there can be no [enforceable] agreement…. The principle
    that a contract is not binding unless there is an offer and
    an acceptance is to ensure that there will be mutual
    assent….
    [I]t is equally well-established that an offer may be
    accepted by conduct and what the parties do pursuant to
    the offer is germane to show whether the offer is accepted.
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    With these precepts in mind, we look to the parties’
    “course of conduct” to assess the presence of a contract.
    
    Id.
     (internal citations and quotation marks omitted).    “In cases involving
    contracts wholly or partially composed of oral communications, the precise
    content of which are not of record, courts must look to surrounding
    circumstances and course of dealing between the parties in order to
    ascertain their intent.” Boyle v. Steiman, 
    631 A.2d 1025
    , 1033 (Pa.Super.
    1993), appeal denied, 
    538 Pa. 663
    , 
    649 A.2d 666
     (1994) (holding prior
    course of dealings between parties supported appellees’ claim of contract
    formation between parties). Additionally:
    A contract implied in fact can be found by looking to the
    surrounding facts of the parties’ dealings.7   Offer and
    acceptance need not be identifiable and the moment of
    formation need not be pinpointed. Implied contracts…arise
    under circumstances which, according to the ordinary
    course of dealing and the common understanding of
    [people], show a mutual intention to contract.
    7
    A contract implied in fact has the same legal effect
    as any other contract. It differs from an express
    contract only in the manner of its formation. An
    express contract is formed by either written or verbal
    communication. The intent of the parties to an
    implied in fact contract is inferred from their acts in
    light of the surrounding circumstances.
    Ingrassia Const. Co., Inc. v. Walsh, 
    486 A.2d 478
    , 483 (Pa.Super. 1984)
    (internal citations and quotation marks omitted).
    Instantly, the trial court reasoned as follows:
    Here, [Appellant] has attached to his Amended Complaint
    a copy of an invitation to bid on the Ford Focus being sold
    by [Appellee] at auction. This invitation to bid, however,
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    specifically states that the auction is open to all members
    of the [Appellee] credit union. Significantly, at no time has
    [Appellant] alleged that he is or ever was a member of the
    credit union. Instead, [Appellant] avers that the credit
    union gave written notice of the invitation to bid not only
    to members of the credit union, but also to members of
    the public at large. [Appellant] has failed, though, to
    plead facts sufficient for [Appellee] to determine when and
    where such alleged notice was made to the public. We
    previously sustained [Appellee]’s Preliminary Objections
    [to Appellant’s initial complaint] on the same grounds and
    gave [Appellant] an opportunity to file a sufficiently
    amended pleading.         Because [Appellant] did not, we
    sustained     [Appellee]’s    Preliminary    Objections    [to
    Appellant’s     amended       complaint]    and     dismissed
    [Appellant]’s Amended Complaint.
    (Trial Court Opinion, filed July 29, 2016, at 3) (citations to record omitted).
    The record supports the trial court’s rationale. Moreover, Appellant alleged
    no facts in the amended complaint concerning the circumstances of the
    course of conduct between the parties regarding his claim that previously
    Appellee had accepted verbal bids from Appellant on vehicles Appellee sold
    at auction.   Likewise, Appellant failed to allege the circumstances of the
    alleged prior course of conduct between the parties regarding what if
    anything Appellee had agreed to pay, or had paid Appellant in the past, to
    detail, store, and display vehicles Appellee auctioned.          Consequently,
    Appellant failed to plead sufficiently specific facts to establish the existence
    of an oral contract and/or implied contract between the parties.           See
    Lackner, 
    supra.
    Based on the foregoing, the trial court properly concluded Appellant’s
    amended complaint lacked sufficient specificity and, as pled, failed to sustain
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    a cause of action for either count.                Accordingly, we affirm the order
    sustaining Appellee’s preliminary objections and dismissing Appellant’s
    amended complaint with prejudice.2 See Rambo, 
    supra.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/2/2016
    ____________________________________________
    2
    Due to our disposition, we decline to address as unnecessary Appellant’s
    argument concerning the legal concepts of capacity to sue and standing.
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