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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY S. MINA,                          :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                        Appellant         :
                                          :
                   v.                     :
                                          :
ENET ADVERTISING,                         :       No. 3171 EDA 2013
OPTIMA WEBDESIGN, RONALD SHUR             :
AND NICKOLAI POTAPOV                      :


               Appeal from the Order Entered October 9, 2013,
               in the Court of Common Pleas of Chester County
                       Civil Division at No. 2013-02649


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JUNE 16, 2015

     Appellant appeals from the order dismissing his complaint with

prejudice. Finding no error, we affirm.

     On November 11, 2011, appellant and appellee entered into a written

agreement wherein, in exchange for $25 per month, appellee agreed to host

an internet website advertising appellant’s business.     There was also a

one-time charge of $200.      The website was apparently created, but was

never precisely to appellant’s liking; consequently, over a period of months,

appellant communicated numerous changes that he wanted made to the

website.   On the other hand, there were also later communications from

appellant to appellee directing it to make no changes to the website. When

appellant subsequently expressed a desire to have another entity host his
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website, he claims appellee would not provide access information to its

website.

      Ultimately, on March 15, 2013, appellant filed a pro se complaint.

The first count presented a vague claim sounding in both breach of contract

and fraud. The complaint also contained three additional counts, all seeking

injunctive relief in the amount of $222,222 per day, until appellee provided

all website access information.

      On May 7, 2013, appellee responded with a motion to dismiss the

complaint on the bases that the breach of contract claim failed to state any

damages or any basis for determining damages, and that the fraud claim

was not pleaded with sufficient particularity.

      Oral argument was heard on September 12, 2013.             Prior to the

hearing, appellee apparently submitted a memorandum to the court that

also argued that appellant’s tort claim was subsumed by the breach of

contract claim pursuant to the “gist of the action” doctrine. On October 9,

2013, the trial court dismissed appellant’s complaint. According to the trial

court’s opinion, it did so with prejudice because it was undisputed during the

hearing that appellee had performed the work required under the agreement

and there was no breach, and also that appellant could not possibly state a




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claim for fraud even if permitted to amend the complaint.1          (Trial court

opinion, 10/31/14 at 2-3 (by our count).) This timely appeal followed.

      Appellant raises the following issues on appeal:

            1.    Judge Braxton abused his discretion dismissing
                  Plaintiff’s Breach of Contract claim because
                  Plaintiff’s Complaint stated an agreement that
                  was made between Plaintiff and Defendant, an
                  agreement that Plaintiff paid Defendant for and
                  an agreement Defendant refused to fulfill. A
                  jury is to determine whether a contract has
                  been proven, its terms and extent. O’Neil v.
                  ARA Services, Inc., 457 F Supp. 182 1978 U.S.
                  Dist. Lexis 16125, 151 LRRM 4846 (E.D. Pa.
                  1978)

            2.    Judge Braxton abused his discretion dismissing
                  Plaintiff’s Fraud claim because Plaintiff’s
                  Complaint stated an agreement that was made
                  between Plaintiff and Defendant, an agreement
                  that Plaintiff paid Defendant for and an
                  agreement Defendant refused to fulfill while
                  promising repeatedly to be fulfilling promised
                  agreement (While a mere breach of a promise
                  does not constitute fraud, nevertheless, fraud
                  may be predicated on the nonperformance of a
                  promise in certain cases where the promise is
                  the device to accomplish fraud Pichler v.
                  Snavely, 53 Lanc. Rev. 43 (Pa. Com. Pl.
                  1952)).

            3.    Judge Braxton abused his discretion by
                  allowing Defendant to enter another defense to
                  Plaintiff’s Complaint at September 12, 2013
                  hearing because Judge Braxton told Plaintiff on
                  May 20, 2013 that oral argument was being
                  heard on Defendant’s Motion to Dismiss
                  Plaintiff’s Complaint on May 20, 2013 and
                  Plaintiff was not entitled to another oral

1
  We note that appellant has failed to have the hearing transcribed,
rendering it impossible to review the trial court’s conclusions in this regard.


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                   argument. Plaintiff had yet to file a response
                   to Defendant’s Motion to Dismiss filed May 7,
                   2013 and Judge Braxton found on May 20,
                   2013 that Plaintiff was unprepared for the
                   May 20,     2013    hearing    which     Court
                   Administration    scheduled    as     “pre-trial
                   conference”, as such, Judge Braxton held oral
                   argument on the Motion to Dismiss on May 20,
                   2013. A true and correct copy of Defendants
                   [sic] argument memorandum which includes
                   defenses not raised in Defendant’s Motion to
                   Dismiss filed May 7, 2013, not heard by the
                   court on May 20, 2013 but allowed to be raised
                   by Defendant on September 12, 2013 is
                   attached hereto as Exhibit B.

            4.     Judge Braxton abused his discretion by
                   dismissing Plaintiff’s Complaint prior to
                   Discovery because Plaintiff filed a Notice to
                   Attend and Produce and Motion to Compel
                   Discovery on August 21, 2013 that Defendant
                   refused to comply with. The items Plaintiff
                   requested in Discovery and in the Notice to
                   Attend and Produce were all pertinent and
                   relevant to claims set forth against Defendant.

            5.     Judge Braxton abused his discretion by
                   dismissing    Plaintiff’s Complaint     because
                   Plaintiff and Defendant presented conflicting
                   testimony (while Plaintiff had evidence to
                   support his argument) and under the rules of
                   general application, questions of fact upon
                   conflicting evidence are to be determined by
                   the jury, while questions of law are to be
                   determined by the court. Carnicelli v. Bartram,
                   289 Pa. Super. 424, 433 A.2d 878 (1981).

Appellant’s brief at 6.

      Preliminarily, we admonish appellant that engaging in repugnant

character assassination against both the trial court and a particular member

of this court does nothing to advance his cause. (Appellant’s brief at 4 and


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9.)   Such ad hominem attacks are juvenile, and to the extent that they

challenge the integrity of the judges at issue, they instead give us pause to

doubt appellant’s own integrity. Appellant’s bizarre rant on page four of his

brief is likewise disturbing. (Appellant’s brief at 4.)

      Turning now to the case at hand, we note that the motion to dismiss

filed in this case should have more properly been styled as a preliminary

objection in the nature of a demurrer.        See Pa.R.C.P., Rule 1028(a)(4),

42 Pa.C.S.A. As such, the following standard of review is applied:

                  The standard of review we apply when
            reviewing a trial court’s order granting preliminary
            objections in the nature of a demurrer is as follows:

                   Our standard of review of an order of the
                   trial   court    overruling  or    granting
                   preliminary objections is to determine
                   whether the trial court committed an
                   error of law.      When considering the
                   appropriateness      of    a   ruling    on
                   preliminary objections, the appellate
                   court must apply the same standard as
                   the trial court.

                          Preliminary    objections   in    the
                   nature of a demurrer test the legal
                   sufficiency of the complaint.         When
                   considering preliminary objections, all
                   material facts set forth in the challenged
                   pleadings are admitted as true, as well
                   as all inferences reasonably deducible
                   therefrom. Preliminary objections which
                   seek the dismissal of a cause of action
                   should be sustained 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. If any doubt exists as to whether


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                  a demurrer should be sustained, it
                  should be resolved in favor of overruling
                  the preliminary objections.

Liberty Mutual Insurance Co. v. Domtar Paper Co., 77 A.3d 1282, 1285

(Pa.Super. 2013) affirmed,        A.3d     , 2015 WL 1888572 (Pa. Apr 27,

2015), quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011).

      We begin by finding that appellant has effectively waived his issues on

appeal. In the argument section of his brief, appellant merely repeats his

Statement of Questions Involved from page six of his brief, but without any

additional relevant analysis or discussion.    Each issue described in the

Statement of Issues Involved amounts to two or three sentences.          Such

spare argument does not allow meaningful appellate review.       “[W]here an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.” Umbelina v. Adams, 34

A.3d 151, 161 (Pa.Super. 2011), appeal denied, 47 A.3d 848 (Pa. 2012),

quoting In re W.H., 25 A.3d 330, 339 (Pa.Super. 2011), appeal denied,

24 A.3d 364 (Pa. 2011) (citations omitted). We find appellant has waived

his claims. Nonetheless, for purposes of any further attempt at review by

appellant, we will briefly indicate why his complaint was properly dismissed.

      In his first issue, appellant asserts that the breach of contract claim

was improperly dismissed.     “A breach of contract action involves (1) the

existence of a contract, (2) a breach of a duty imposed by the contract, and



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(3) damages.” Kirschner v. K&L Gates LLP, 46 A.3d 737, 755 (Pa.Super.

2012), appeal denied, 65 A.3d 414 (Pa. 2013). After the hearing on the

motion to dismiss his complaint, the trial court stated:

            Here, viewing the complaint in its entirety, it was not
            abundantly clear whether the facts averred, if proved
            true, would establish that plaintiff suffered damages
            from the alleged actions or inaction of defendants.
            Upon consideration of the positions advanced by the
            parties at oral argument, it became apparent that
            plaintiff could not state a claim in breach of contract
            if given leave to amend the complaint. At oral
            argument, there was no dispute as to the subject
            matter and terms of the agreement between the
            parties.    It was also undisputed that defendants
            performed the work required under the agreement
            by creating the website with the pictures and
            information provided by plaintiff to defendants, and
            that the website is running. For this reason, we
            believe that plaintiff cannot state a claim in breach of
            contract against defendants. Thus, we find plaintiff’s
            first issue to be without merit.

Trial court opinion, 10/31/14 at 2 (by our count).

      At the hearing, the trial court indicated that there was no evidence of

any breach and that it was not disputed by appellant. Thus, the trial court

decided as a matter of law that there was no breach.            As noted earlier,

appellant’s failure to provide us with a transcript of this hearing renders it

impossible for this court to review the trial court’s conclusion of law.

Moreover, our independent review of the complaint itself does not lead us to

conclude that the trial court was in error. We find no error.

      In his second issue, appellant contends that the trial court erred in

dismissing his fraud claim.      A claim for fraud must be averred with


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particularity.   Ellison v. Lopez, 959 A.2d 395, 398 (Pa.Super. 2008),

appeal denied, 968 A.2d 233 (Pa. 2009).        “The test for fraud is:   (1) a

misrepresentation; (2) a fraudulent utterance; (3) an intention by the maker

that the recipient will thereby be induced to act; (4) justifiable reliance by

the recipient upon the misrepresentation; and (5) damage to the recipient as

a proximate result.”    Id.   Appellant’s complaint contained none of these

averments. Rather, the complaint contained precepts of fraud law, but no

averments regarding appellee in particular.    Basically, the complaint only

stated that the website was not completed to appellant’s liking. Finally, the

trial court concluded that even if given leave to amend the complaint,

appellant could not state a cause of action for fraud.   (Trial court opinion,

10/31/14 at 3 (by our count).)

      In his third issue, appellant argues that the trial court improperly

permitted appellee to raise a defense that was not raised in the motion to

dismiss.    We assume, because he does not identify the defense, that

appellant is referring to the gist of the action doctrine that was raised in

appellee’s hearing memorandum but not in the motion to dismiss. The trial

court did not dismiss any part of appellant’s complaint on this basis and

there is no prejudice to appellant.

      In his fourth issue, appellant complains that the trial court improperly

dismissed the complaint before permitting discovery.          Simply stated,

discovery cannot go forward until a litigant has demonstrated that a cause of



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action exists upon which discovery can be made.            Appellant failed to

demonstrate a cause of action.

     In his fifth and final issue, appellant posits that the trial court erred in

dismissing his complaint because the parties presented conflicting testimony

at the hearing.   Again, without a hearing transcript we cannot review the

court’s findings that the existence of the agreement and appellee’s

performance were undisputed, and that no breach of contract existed as a

matter of law.

     Accordingly, having found no merit in the issues on appeal, we will

affirm the order below.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2015




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