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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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