J -S65040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRANCISCO PEREZ 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
LOUIS R. RIZZUTO, ESQUIRE
Appellee No. 30 MDA 2018
Appeal from the Order Entered December 21, 2017 In the Court of Common Pleas of Berks County Civil Division at No: 17-14528
BEFORE: SHOGAN, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 29, 2019
Appellant, Francisco Perez, appeals pro se from the December 21, 2017
order sustaining the preliminary objections of Appellee, Louis R. Rizzuto,
Esquire, and dismissing Appellant's complaint with prejudice. We reverse and
remand.
Appellant, proceeding pro se, initiated this action in July of 2017 with a
complaint alleging, among other things, breach of contract. Appellant alleges
he was detained in New Jersey by New Jersey State Police in 1989. He further
alleges that the New Jersey State Police confiscated $50,000.00 from him on
that occasion and provided him a receipt. Appellant claims he hired Appellee
to recover that money for him, and that Appellee successfully recovered
$43,000.00 on Appellant's behalf and kept it. Appellant alleges that he
compensated Appellee for his services. After Appellee filed preliminary J -S65040-18
objections, Appellant filed an amended complaint, apparently without leave of
court. Appellee did not object to the amended complaint on that basis, and
filed a motion asking the trial court to apply his prior preliminary objections
to the amended complaint. The trial court did so. Ultimately, the trial court
found the preliminary objections to be dispositive of either complaint. Upon
review, we conclude the trial court erred because Appellant's original and
amended complaints both stated a cause of action for breach of contract.
On review of an order sustaining preliminary objections, we must accept
all well -pleaded facts in the plaintiff's complaint and all reasonable inferences
drawn from those facts. Stoloff v. Nieman Marcus Grp., Inc., 24 A.3d 366,
369 (Pa. Super. 2011) (quoting Ellenbogen v. PNC Bank, N.A., 731 A.2d
175, 181 (Pa. Super. 1999)). An order sustaining preliminary objections,
where that order results in dismissal of the entire lawsuit, is appropriate only
in cases that are free and clear from doubt. Id. "To be free and clear from
doubt that dismissal is appropriate, it must appear with certainty that the law
would not permit recovery by the plaintiff upon the facts averred. Any doubt
should be resolved by a refusal to sustain the objections." Id. This Court
reviews the trial court's order for abuse of discretion or error of law. For a
breach of contact claim, the plaintiff must plead "(1) the existence of a
contract, including its essential terms, (2) a breach of the contract; and, (3)
resultant damages." McCabe v. Maywood Univ., 166 A.3d 1257, 1262 (Pa.
Super. 2017).
-2 J -S65040-18
In sustaining Appellee's objection for failure to state a claim and lack of
specificity, the trial court wrote that it was "generally unclear what
arrangement [Appellant] had with [Appellee] regarding the confiscated
funds[,]" and that Appellant failed to comply with Pa.R.C.P. No. 1019(h)' by
failing to specify whether the agreement was oral or written. Trial Court
Opinion, 8/9/18, at 6. The trial court also criticized Appellant for failing to
attach correspondence that Appellant referenced in his complaint.2 Id. at 5-
6. We conclude the trial court held Appellant's complaint to a much more
stringent standard than is appropriate for preliminary objections.
Considering all well -pled facts and reasonable inferences to be drawn
therefrom, Appellant alleged (1) that Appellee agreed to retrieve money from
the New Jersey State Police on Appellant's behalf; (2) that Appellee was
compensated for providing that service; (3) that Appellee retrieved
$43,000.00 on Appellant's behalf pursuant to the parties' agreement; and (4)
that Appellee kept the $43,000.00 in breach of the parties' agreement. In our
1 "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." Pa.R.C.P. No. 1019(h).
2 The trial court also noted an action Appellant filed twenty years ago based upon the same allegations. The trial court did not deem that action a sufficient basis for sustaining Appellee's preliminary objections. We agree, inasmuch as the facts of the prior action are not yet of record, and its existence has no bearing on whether Appellant has stated a claim and done so with sufficient specificity. The prior action, and any issue that arises from it, is not properly before us on review of an order sustaining preliminary objections.
-3 J -S65040-18
view, those allegations are sufficiently specific to overcome Appellee's
preliminary objections because they state a breach of contract claim.
In other words, Appellant alleged an agreement, its basic terms,
Appellee's receipt of consideration, Appellee's breach, and $43,000.00 in
damages. The pertinent facts are simple, and Appellee has alleged them with
sufficient specificity, even if the complaint is not a model of clarity. See, e.g.
Hill v. Thomas, 635 A.2d 186, 189 (Pa. Super. 1993) ("Where [the]
allegations are adequately set forth, a pro se complaint will not be dismissed
just because it is not artfully drafted."); Moore v. McComsey, 459 A.2d 841,
842 (Pa. Super. 1983) ("Although his pro se complaint was inartfully drafted,
we are able to discern therefrom causes of action [...."]). All three elements
of a breach of contract action are easily discernible from Appellant's
allegations, and we perceive no reason why Appellee would be unable to
prepare an appropriate defense. See, e.g. Rambo v. Greene, 906 A.2d
1232, 1236 (Pa. Super. 2006) ("The pertinent question under Rule 1028(a)(3)
[governing insufficient specificity of a pleading] is "whether the complaint is
sufficiently clear to enable the defendant to prepare his defense[.]").
Appellant's failure to attach correspondence referenced in his complaints does
not support a different conclusion.
Concerning Rule 1019(h), the trial court correctly noted that Appellant
does not specifically allege an oral agreement. Nonetheless, it is clear upon
a fair reading of either complaint that Appellant is alleging an oral agreement.
-4 J -S65040-18
He references correspondence and a power of attorney, but does not reference
any written agreement regarding the terms of Appellee's legal services. We
do not believe this technical defect was a sufficient basis for sustaining
preliminary objections, much less dismissing the complaint with prejudice. A
simple amendment would cure this defect.3
Finally, we reject the trial court's suggestion that Appellant has waived
all his issues because his Pa.R.A.P. 1925(b) statement was vague. Trial Court
Opinion, 8/9/18, at 4. As the trial court concedes in its opinion, its order
Free access — add to your briefcase to read the full text and ask questions with AI
J -S65040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRANCISCO PEREZ 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
LOUIS R. RIZZUTO, ESQUIRE
Appellee No. 30 MDA 2018
Appeal from the Order Entered December 21, 2017 In the Court of Common Pleas of Berks County Civil Division at No: 17-14528
BEFORE: SHOGAN, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 29, 2019
Appellant, Francisco Perez, appeals pro se from the December 21, 2017
order sustaining the preliminary objections of Appellee, Louis R. Rizzuto,
Esquire, and dismissing Appellant's complaint with prejudice. We reverse and
remand.
Appellant, proceeding pro se, initiated this action in July of 2017 with a
complaint alleging, among other things, breach of contract. Appellant alleges
he was detained in New Jersey by New Jersey State Police in 1989. He further
alleges that the New Jersey State Police confiscated $50,000.00 from him on
that occasion and provided him a receipt. Appellant claims he hired Appellee
to recover that money for him, and that Appellee successfully recovered
$43,000.00 on Appellant's behalf and kept it. Appellant alleges that he
compensated Appellee for his services. After Appellee filed preliminary J -S65040-18
objections, Appellant filed an amended complaint, apparently without leave of
court. Appellee did not object to the amended complaint on that basis, and
filed a motion asking the trial court to apply his prior preliminary objections
to the amended complaint. The trial court did so. Ultimately, the trial court
found the preliminary objections to be dispositive of either complaint. Upon
review, we conclude the trial court erred because Appellant's original and
amended complaints both stated a cause of action for breach of contract.
On review of an order sustaining preliminary objections, we must accept
all well -pleaded facts in the plaintiff's complaint and all reasonable inferences
drawn from those facts. Stoloff v. Nieman Marcus Grp., Inc., 24 A.3d 366,
369 (Pa. Super. 2011) (quoting Ellenbogen v. PNC Bank, N.A., 731 A.2d
175, 181 (Pa. Super. 1999)). An order sustaining preliminary objections,
where that order results in dismissal of the entire lawsuit, is appropriate only
in cases that are free and clear from doubt. Id. "To be free and clear from
doubt that dismissal is appropriate, it must appear with certainty that the law
would not permit recovery by the plaintiff upon the facts averred. Any doubt
should be resolved by a refusal to sustain the objections." Id. This Court
reviews the trial court's order for abuse of discretion or error of law. For a
breach of contact claim, the plaintiff must plead "(1) the existence of a
contract, including its essential terms, (2) a breach of the contract; and, (3)
resultant damages." McCabe v. Maywood Univ., 166 A.3d 1257, 1262 (Pa.
Super. 2017).
-2 J -S65040-18
In sustaining Appellee's objection for failure to state a claim and lack of
specificity, the trial court wrote that it was "generally unclear what
arrangement [Appellant] had with [Appellee] regarding the confiscated
funds[,]" and that Appellant failed to comply with Pa.R.C.P. No. 1019(h)' by
failing to specify whether the agreement was oral or written. Trial Court
Opinion, 8/9/18, at 6. The trial court also criticized Appellant for failing to
attach correspondence that Appellant referenced in his complaint.2 Id. at 5-
6. We conclude the trial court held Appellant's complaint to a much more
stringent standard than is appropriate for preliminary objections.
Considering all well -pled facts and reasonable inferences to be drawn
therefrom, Appellant alleged (1) that Appellee agreed to retrieve money from
the New Jersey State Police on Appellant's behalf; (2) that Appellee was
compensated for providing that service; (3) that Appellee retrieved
$43,000.00 on Appellant's behalf pursuant to the parties' agreement; and (4)
that Appellee kept the $43,000.00 in breach of the parties' agreement. In our
1 "When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." Pa.R.C.P. No. 1019(h).
2 The trial court also noted an action Appellant filed twenty years ago based upon the same allegations. The trial court did not deem that action a sufficient basis for sustaining Appellee's preliminary objections. We agree, inasmuch as the facts of the prior action are not yet of record, and its existence has no bearing on whether Appellant has stated a claim and done so with sufficient specificity. The prior action, and any issue that arises from it, is not properly before us on review of an order sustaining preliminary objections.
-3 J -S65040-18
view, those allegations are sufficiently specific to overcome Appellee's
preliminary objections because they state a breach of contract claim.
In other words, Appellant alleged an agreement, its basic terms,
Appellee's receipt of consideration, Appellee's breach, and $43,000.00 in
damages. The pertinent facts are simple, and Appellee has alleged them with
sufficient specificity, even if the complaint is not a model of clarity. See, e.g.
Hill v. Thomas, 635 A.2d 186, 189 (Pa. Super. 1993) ("Where [the]
allegations are adequately set forth, a pro se complaint will not be dismissed
just because it is not artfully drafted."); Moore v. McComsey, 459 A.2d 841,
842 (Pa. Super. 1983) ("Although his pro se complaint was inartfully drafted,
we are able to discern therefrom causes of action [...."]). All three elements
of a breach of contract action are easily discernible from Appellant's
allegations, and we perceive no reason why Appellee would be unable to
prepare an appropriate defense. See, e.g. Rambo v. Greene, 906 A.2d
1232, 1236 (Pa. Super. 2006) ("The pertinent question under Rule 1028(a)(3)
[governing insufficient specificity of a pleading] is "whether the complaint is
sufficiently clear to enable the defendant to prepare his defense[.]").
Appellant's failure to attach correspondence referenced in his complaints does
not support a different conclusion.
Concerning Rule 1019(h), the trial court correctly noted that Appellant
does not specifically allege an oral agreement. Nonetheless, it is clear upon
a fair reading of either complaint that Appellant is alleging an oral agreement.
-4 J -S65040-18
He references correspondence and a power of attorney, but does not reference
any written agreement regarding the terms of Appellee's legal services. We
do not believe this technical defect was a sufficient basis for sustaining
preliminary objections, much less dismissing the complaint with prejudice. A
simple amendment would cure this defect.3
Finally, we reject the trial court's suggestion that Appellant has waived
all his issues because his Pa.R.A.P. 1925(b) statement was vague. Trial Court
Opinion, 8/9/18, at 4. As the trial court concedes in its opinion, its order
sustaining Appellee's preliminary objections was unaccompanied by any
explanation of the court's reasoning. Id. Thus, Appellant was forced to file
his Pa.R.A.P. 1925(b) statement without knowledge of the trial court's reasons
for entering the order. Despite the resulting vague concise statement, the
trial court prepared an opinion correctly anticipating the substance of
Appellant's argument. In Commonwealth v. Poncala, 915 A.2d 97 (Pa.
Super. 2006), appeal denied, 932 A.2d 1287 (Pa. 2007), this Court wrote
that "if the appellant has no way to anticipate the court's rationale for its
3 Rule of Civil Procedure 1033, governing amendment, has been amended several times in recent years, but its policy has always been to ensure that parties have their cases decided on the merits rather than legal formalities. Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014). "Even where a trial court sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend [...] where there is some reasonable possibility that amendment can be accomplished successfully. Id. (quoting In re Estate of Luongo, 823 A.2d 942, 969 (Pa. Super. 2003), appeal denied, 847 A.2d 1287 (Pa. 2003)) (emphasis from Luongo). -5 J -S65040-18
decision, the appellant's Rule 1925(b) statement will of necessity challenge
the court's ruling in terms based on the available information." Id. at 100.
"We do not require an appellant to guess what the trial court was thinking,
and we will not penalize an appellant for failing to include in his concise
statement an issue that he could not have known of until he read the trial
court's Pa.R.A.P. 1925(a) opinion." Id. Given the circumstances of this case
and the applicable law, we will not conclude that Appellant's vague concise
statement resulted in waiver.
In light of the foregoing, we conclude the trial court committed an error
of law in sustaining Appellee's preliminary objections, and we reverse the
order and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
J seph D. Seletyn, Prothonotary Date: 7/29/2019
-6