Yazbek, K. v. Hill International

• Court: Superior Court of Pennsylvania
• Decided: May 12, 2022
• Docket: 1808 EDA 2021
• Status: Unpublished

Opinion

J-A04040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KARIM ANTOINE YAZBEK : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : HILL INTERNATIONAL, INC. : No. 1808 EDA 2021

Appeal from the Order Entered August 12, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 201101528

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 12, 2022

Karim Yazbek appeals from the order sustaining the preliminary

objections of his former employer, Hill International, Inc. (“Hill”), and

dismissing his complaint sounding in breach of contract and common law

wrongful termination. We affirm.

This case stems from an employment relationship between Yazbek and

Hill. We take the following statement of facts from the operative complaint

and documents attached to it.1 We also recite some of the parties’

statements in their pleadings on preliminary objections, to give context. Hill

is a Delaware corporation with headquarters in Philadelphia and operations

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1 See Alatrista v. Diamond Club, 267 A.3d 1257, 1259-60 (Pa.Super. 2021). J-A04040-22

in Qatar;2 the events surrounding Yazbek’s claim allegedly occurred in

Qatar.3 Yazbek is a Canadian citizen who has had two periods of

employment with Hill. He ended the first voluntarily in 2011.4

Hill rehired Yazbek in February 2016 as Vice President/Country

Manager at its Qatar location.5 Yazbek and Hill entered into a written

employment contract at that time (“First Contract”). The First Contract

provided that any disputes between Yazbek and Hill had to be resolved

“exclusively” by the courts of Qatar and would be governed by Qatari law.6

Yazbek also agreed in the First Contract to execute any standard form labor

contract required by Qatari law.7 According to Hill, he followed through on

that promise when the parties entered into a second contract a short while

later, in March 2016 (“Second Contract”).8 The Second Contract stated that

2 Hill disputes that it is the entity that employed Yazbek. See Hill’s Preliminary Objections to Plaintiff’s Second Am. Comp., ¶ 1. That question is not before us. We refer to Appellee by the name appearing in the caption and by the short form “Hill” without intending to express an opinion on the resolution of this question. 3See Reply in Further Support of Hill’s Preliminary Objections to Plaintiff’s Second Am. Comp.at 2; Second Am. Comp., ¶ 2. 4 Yazbek’s Answer in opposition to Defendant’s Preliminary Objections to Plaintiff’s Second Am. Comp., ¶1; Second Am. Comp., ¶¶ 9-13 & Ex. B at 1. 5 Id. ¶ 14. 6 Id., Ex. A, ¶¶ 4.1. 7 Id., Ex. A, ¶ 15. 8Id. ¶ 17. See also Hill’s Preliminary Objections to Plaintiff’s Second Am. Comp. ¶ 5.

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its provisions were governed by Qatari law, which would serve as basis for

resolving any dispute between the parties “unless the conditions of the

contract include more favourable [sic] advantage to” Yazbek.9

Yazbek was later injured on the job in May 2017, when a company

vehicle drove over his left foot, resulting in arterial thrombosis. 10 Yazbek

alleges that Hill “was on notice of the incident as a claim was promptly

filed,”11 but Hill allegedly “never compensated him for his workplace

injury.”12

Thereafter, Hill purportedly told Yazbek that he should cease

operational duties on July 1, 2019.13 According to Yazbek, “There was a final

agreement documented but not signed between [Yazbek] and [Hill] that is

dated August 1, 2019." (“Unsigned Agreement”).14 The Unsigned Agreement

alleged and offered Yazbek “voluntary redundancy” and specified that

Yazbek’s last day of employment would be December 31, 2019.15 However,

on September 25, 2019, Hill informed Yazbek that his last day would be

9 Second Am. Comp., Ex. B ¶ 7(d). 10 Id. ¶¶ 33-35. 11 Id. ¶ 36. 12 Id. 13 Id. ¶ 27. 14 Id. ¶ 18; see also Second Am. Comp., Ex. C. 15 Id. ¶ 19.

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December 24, 2019, and he would only be paid “entitlements” up to and

including that date.16

Yazbek filed the instant suit on November 17, 2020. After two rounds

of preliminary objections, Yazbek filed the amended complaint at issue on

March 29, 2021 (“Second Amended Complaint”). The Second Amended

Complaint had two counts: one for breach of all three contracts referenced

above and one for common law wrongful termination. Yazbek attached a

copy of the Unsigned Agreement to the Second Amended Complaint. The

Unsigned Agreement has multiple comments in the margins that, inter alia,

ask for clarification, seek removal of a clause, and indicate that a term is

“not in line with Qatari law.”17 The Unsigned Agreement contains a signing

requirement: “Notwithstanding that this Agreement is marked without

prejudice, it will, when signed by both Parties named below and dated,

become open and binding.”18 It also contains a clause that would require

that any dispute be submitted to mediation “after which it may be referred

to the competent courts of Doha[, Qatar].”19

Hill again filed preliminary objections that included a demurrer to both

counts. Ultimately, the trial court issued an order sustaining Hill’s

16 Id. ¶¶ 20-21. 17Id. Ex. C at 2-4. 18 Id. Ex. C, ¶ 16. 19 Id. Ex. C, ¶ 15.

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preliminary objection to legal sufficiency and dismissed the Second Amended

Complaint. The order stated that on the one hand, “If the [Unsigned

Agreement] is valid, which is the basis of [Yazbek’s] [Second Amended

Complaint], this matter is subject to the forum selection clause dictating this

matter be heard in Qatar.” The order continued that on the other hand, “If

the [Unsigned Agreement] is not valid, [Yazbek] has failed to raise a proper

cause of action.”20 Yazbek filed the instant timely appeal and both Yazbek

and the trial court complied with Pa.R.A.P. 1925.

Yazbek raises the following issues for our review:

1) Whether the trial court erred in finding that, if the [Unsigned Agreement] is valid, this matter is subject to forum selection clause dictating that this matter be heard in Qatar?

2) Whether the trial court erred in finding that, if the [Unsigned Agreement] is not valid, [Yazbek] has failed to state a cause of action for breach of contract and/or wrongful termination?

Yazbek’s Br. at 7.

We review an order sustaining preliminary objections “to determine

whether the trial court committed an error of law.” Joyce v. Erie Ins.

Exch., 74 A.3d 157, 162 (Pa.Super. 2013) (quoting Feingold v. Hendrzak,

15 A.3d 937, 941 (Pa.Super. 2011)). We apply the same standard on appeal

as the trial court used when it entertained the objections. Id. “When

considering preliminary objections, all material facts set forth in the

20 Order, 8/11/2021, n.1.

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challenged pleadings are admitted as true, as well as all inferences

reasonably deducible therefrom.” Id. (quoting Feingold, 15 A.3d at 941).

The court should examine the allegations of the complaint and statements in

documents and exhibits attached to it. Alatrista, 267 A.3d at 1259-60. A

court may sustain preliminary objections that seek the dismissal of a cause

of action “only in cases in which it is clear and free from doubt that the

pleader will be unable to prove facts legally sufficient to establish the right to

relief.” Joyce, 74 A.3d at 162 (quoting Feingold, 15 A.3d at 941).

In his first issue, Yazbek claims the trial court misapprehended his

argument regarding the Unsigned Agreement. (He makes no argument

regarding the First Contract or the Second Contract.) He claims that he

recognizes that the Unsigned Agreement is unenforceable. Instead, he

claims that an oral contract existed between himself and Hill and that some

of the terms of the Unsigned Agreement memorialize terms of the oral

agreement. He asserts that the court erred by dismissing the case at the

preliminary objection stage because he could have proven the existence of

the verbal contract through discovery. He claims that the parties verbally

agreed to additional compensation due to his injury and that his final date of

employment was to be December 31, 2019. He also avers that he never

verbally agreed to resolve all employment disputes in accordance with Qatari

law only.

“A cause of action for breach of contract must be established by

pleading (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) resultant damages.”

Pennsy Supply, Inc. v. Am. Ash Recycling Corp. of Pa., 895 A.2d 595,

600 (Pa.Super. 2006).

Where the existence of an informal contract is alleged, it is essential to the enforcement of such an informal contract that the minds of the parties should meet on all the terms[,] as well as the subject matter. If anything is left open for future negotiation, the informal paper cannot form the basis of a binding contract.

GMH Assocs., Inc. v. Prudential Realty Group, 752 A.2d 889, 900 (Pa.

Super. 2000) (citation and quotation marks omitted).

Yazbek has not cited any legal authority to support his contention that

a verbal agreement was formed in this case. Nor has he identified for us the

specific allegations of the Second Amended Complaint that he claims support

a finding of an enforceable oral contract. Hence, this issue is waived. See

Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“[W]here an

appellate brief fails to . . . develop [an] issue in [a] meaningful fashion

capable of review, that claim is waived. It is not the obligation of an

appellate court to formulate [an] appellant's arguments for him”) (citation

omitted).

Even if it were not waived, his argument would fail. The allegations of

the Second Amended Complaint regarding any alleged oral contract are

sparse. We find only two paragraphs that conceivably could refer to the

alleged oral agreement and even they do not do so explicitly. The two

paragraphs read:

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18. There was a final agreement documented but not signed between Plaintiff and Defendant that is dated August 1, 2019. (Please see the August 1, 2019 contract attached as “Exhibit C”).

19. This contract offers voluntary redundance and contemplated a termination of employment date of December 31, 2019.

Second Am. Comp. ¶¶ 18-19.

Neither of these paragraphs contain any allegations to support a

finding of the formation of an oral contract. Furthermore, we agree with the

trial court that the Unsigned Agreement itself indicated that a “meeting of

the minds” never occurred between the parties. See GMH Assocs., 752

A.2d at 900. The notes throughout the margins of the Unsigned Agreement

fatally undermine Yazbek’s contention that the Unsigned Agreement

memorialized a preexisting verbal agreement that the parties intended to be

enforceable. What is more, the Unsigned Agreement specifies that it will

become “binding” only when signed and dated by both parties. This

seemingly precludes enforcement of any oral contract. Yazbek does not

attempt to explain away the contradiction. Instead, Yazbek chooses the

terms of the Unsigned Agreement he believes should be enforceable, e.g.,

his date of termination being December 31, 2019, and ignores this

unfavorable term. The trial court did not err by finding Yazbek’s allegations

insufficient to support his contract claim. Joyce, 74 A.3d at 162. Yazbek’s

first issue warrants no relief.

In his second issue, Yazbek disputes the sustaining of the preliminary

objection to his wrongful termination count. He claims that his termination

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was in retaliation for the workers’ compensation claim he filed in Qatar and

allegedly constitutes a violation of Pennsylvania law. He claims his injury

developed slowly, which accounts for the delay in his termination from the

2017 injury until his termination in 2019. Yazbek admits that he never filed

a workers’ compensation claim in Pennsylvania but argues that Hill had

notice of his claim in Qatar.

Once again, we find Yazbek’s argument unavailing. The sole authority

Yazbek cites is Shick v. Shirey, 716 A.2d 1231 (Pa. 1998). Shick does

concern a common law cause of action for wrongful termination for a

retaliatory discharge in response to a workers’ compensation claim.

However, Shick is readily distinguishable. It concerned an at-will employee

who filed a Pennsylvania workers’ compensation claim. Here, Yazbek’s

employment relationship with Hill is contractual and governed by the First

and Second Contracts, which each specify that any dispute arising between

the parties is subject to Qatari law. Moreover, Yazbek admits he never filed a

Pennsylvania workers’ compensation claim. As such, we conclude that the

trial court aptly sustained Hill’s preliminary objection to the legal sufficiency

of Yazbek’s wrongful termination claim. Therefore, Yazbek’s second issue on

appeal also must fail.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/12/2022

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