        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James Spinola,                          :
d/b/a/ Hillcrest Architecture,          :
                    Appellant           :
                                        :
                   v.                   : No. 2120 C.D. 2015
                                        : Submitted: April 22, 2016
Patrick Kelley;                         :
Waste Not Technologies, LLC,            :
jointly and severally                   :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                FILED: September 21, 2016

             James Spinola, d/b/a Hillcrest Architecture (Appellant), appeals, pro
se, from the order of the Court of Common Pleas of Monroe County that sustained
the preliminary objections filed by Patrick Kelley and Waste Not Technologies,
LLC (collectively, Appellees) and dismissed the third amended complaint filed by
Appellant on the grounds that the complaint failed to state a breach of contract
claim. We affirm the trial court’s dismissal of Appellant’s breach of contract
claim, however we remand for consideration of Appellees’ preliminary objections
as they relate to the first two counts of Appellant’s third amended complaint,
which assert claims based upon the doctrines of promissory estoppel, quantum
meruit and unjust enrichment.1
              According to the allegations in Appellant’s Third Amended
Complaint, Kelley first contacted Appellant on November 29, 2011 for an estimate
for the architectural design of a building for Appellees that was to be funded
through a state grant. (Third Amended Complaint ¶¶5, 29.) Appellant began
performing pre-design services that could be included in the application for the
state grant and sent Kelley an estimate on December 1, 2011. (Id. ¶¶6, 30, 31, Ex.
G.) Having not heard from Kelley in over one year, Appellant followed up in
January 2013 to inquire about the status of the project and Kelley responded that
he expected the design phase to begin that spring and he would keep Appellant
posted. (Id. ¶¶7-8.) On June 17, 2013, Appellant visited and toured the project site
at Kelley’s request. (Id. ¶¶9-10.) Appellant sent Kelley a five-page proposed
contract for professional architectural services on July 8, 2013, and Kelley
responded on July 15, 2013 with three pages of changes to the proposed contract.
(Id. ¶¶11-12, Ex. A.) Following his attorney’s review, Appellant sent an email on
July 19, 2013 responding to each of Kelley’s proposed modifications to the
original contract and discussing the scheduling challenges in completing the design
work in five weeks as Kelley requested. (Id. ¶13, Ex. A.) Appellant concluded
this email by stating: “We can schedule a start date for your project immediately
and are anxious to proceed. If the above explanations are acceptable, please reply

1
  The appeal in this action is not within the jurisdiction of this Court and should have instead
been filed in the Superior Court. See 42 Pa. C.S. § 762(a) (listing the categories of exclusive
jurisdiction of the Commonwealth Court in appeals from final orders of the courts of common
pleas). However, because no party has filed a timely objection to jurisdiction, this Court can
hear this matter, as jurisdiction has been “perfected” pursuant to Section 704 of the Judicial
Code, 42 Pa. C.S. § 704.

                                               2
back and we will revise the Proposal accordingly and have it to you Monday.” (Id.
Ex. A.)
             On July 21, 2013, Kelley sent an email to Appellant in which he
stated:

             Hi Jim,
             Thank you for your reply. You may begin work immediately.
             However, there will be some changes to the scope.
             I would like you to work on the following topics as they are
             described in your latest email:
                 Schematic Design
                 Design Development
                 Construction Documents
             I will assume responsibility for the following topics as they are
             described in your latest email:
                 Bidding/Negotiations
                 Construction Administration
             Please email to me a new contract reflecting the changes from
             the original contract. I will sign it and return it to you along
             with a check in the amount of $2,000.00. I will advise you if I
             feel the need to the have the project timetable accelerated.
             Thank you.
             Best regards,
             Pat

(Id. ¶14, Ex. A)
             Appellant alleges that he began working immediately after receiving
this email and mailed a revised contract to Kelley. (Id. ¶15, Ex. E.) On July 23,
2013, Kelley sent Appellant an email in which he stated:

             Jim,
             I have received your latest proposal. This proposal is not
             acceptable to me. You still have not indicated when this work
             will be completed. If I sign this contract, you would be within
                                         3
               your rights to perform the work at any time in the future (two
               years, three years or more from now.) Also, you have still
               included within your scope of work the advertisement for
               bidding, instructions to bidders, a bid bond form, prevailing
               wage rates, contractor’s qualifications statement, performance
               and payment of bond references, insurance requirements and
               General and Supplementary Conditions of the Contract. I
               indicated to you in my recent email that I would perform these
               tasks. In addition you have increased your price. All of this is
               unacceptable to me. I will use another architect. Thank you.
               Best regards,
               Pat Kelley

(Id. ¶16, Ex. E.) Appellant contacted Kelley several times to discuss resuming
their professional relationship; after not receiving any response, Appellant sent
Kelley an invoice for services rendered on October 1, 2013 in the amount of
$1,170.    (Id. ¶¶18-19, Ex. C.)         Kelley did not remit payment in response to
Appellant’s invoice. (Id. ¶¶20-22.)
               On October 3, 2014, Appellant filed a civil action in the Magisterial
District Court of Monroe County against Appellees and a judgment was issued in
Appellant’s favor in the amount of $3,930.50, which Appellees appealed to the
trial court. In his third amended complaint,2 Appellant brings three causes of
action. In Count I, Appellant seeks damages in the amount of $1,170 for the
design work done between July 21, 2013 when Kelley stated that Appellant could
“begin work immediately” until July 23, 2013 when Kelly stated that the terms of


2
  Appellees filed preliminary objections to each of the three previous versions of Appellant’s
complaint, but Appellant amended the original and first amended complaint without the trial
court ruling on those preliminary objections. The trial court sustained Appellees’ preliminary
objections to the second amended complaint in part, striking various paragraphs for including
discussion of settlement talks between the parties and dismissing the third amended complaint in
its entirety, with leave to replead, for failure to plead a breach of contract claim and failure to
plead damages with sufficient specificity.

                                                4
the latest agreement were “unacceptable.” (Id. ¶¶26-27.) In Count II, Appellant
seeks damages of $2,500 as compensation for pre-design services that Appellant
alleged he performed that was incorporated in Appellees’ application for a state
grant. (Id. ¶¶28-33.) In Count III, Appellant asserts that the parties had come to a
meeting of the minds and entered into a binding contractual relationship as of July
21, 2013 when Kelley directed Appellant to “begin work immediately” and that
Kelley breached this contract when he sent his July 23, 2013 email stating that the
terms of their agreement were now “not acceptable.” (Id. ¶¶34-38.) In this count,
Appellant seeks compensatory damages in the amount of $17,175 based upon the
fees he would have been entitled to under the contract. (Id. ¶39.)
             Appellees filed preliminary objections in the nature of a demurrer to
the third amended complaint in which they object on the grounds that this
complaint failed to state a claim because it does not plead the existence of a
contract and does not adequately explain the damages requested. In addition,
Appellees objected on the grounds that Appellant improperly joined a request to
enforce a subpoena to produce documents and included a request in the third
amended complaint for oral argument related to a mediation/arbitration provision
in the draft contracts that had been exchanged between the parties. On September
28, 2015, the trial court issued an order sustaining the Appellees’ preliminary
objection for failure to state a breach of contract cause of action and dismissing the
third amended complaint. In an accompanying opinion, the trial court explained
that Appellant did not allege the existence of a contract because Kelley’s July 21,
2013 email that advised Appellant to “begin work immediately” was not strictly an
acceptance of Appellant’s latest offer but instead contained additional language
that changed the terms and scope of the contract and therefore this email was a


                                          5
counter-offer. (Trial Court Opinion at 2-4.) The trial court concluded that because
Kelley never signed the proposed agreement and Kelley’s next communication to
Appellant on July 23, 2013 was a repudiation of Appellant’s latest draft and their
professional relationship, there was no contract between the parties. (Id. at 4.) The
trial court further stated that in light of its holding, it would not address Appellees’
remaining preliminary objections. (Id.)
               On appeal to this Court, Appellant argues that Kelley’s July 21, 2013
email constituted acceptance of the most recent proposal that Appellant had sent
Kelley and that Kelley’s request in the July 21, 2013 email for Appellant to draft a
new contract was simply to memorialize the terms on which the parties had agreed.
Appellant further argues that the trial court erred in not addressing the first two
claims based upon Appellees’ failure to pay for architectural services actually
rendered prior to Kelley’s July 23, 2013 email because these claims are grounded
in quasi-contract theories and do not depend on the existence of a contract.3
               A claim for breach of contract exists where the party alleging the
breach can show (i) the existence of a contract, (ii) a breach of a duty imposed by
that contract, and (iii) damages resulting from the breach. Fritz v. Glen Mills
School, 894 A.2d 172, 178 (Pa. Cmwlth. 2006); Koken v. Steinberg, 825 A.2d 723,
729 (Pa. Cmwlth. 2003). “In order to form a contract, there must be an offer,

3
  Our scope of review of a trial court’s decision sustaining preliminary objections in the nature of
a demurrer is plenary, and our standard of review is de novo. Mazur v. Trinity Area School
District, 961 A.2d 96, 101 (Pa. 2008). An appellate court may affirm a grant of preliminary
objection in the nature of a demurrer only when, on the facts pled, it is clear and free from doubt
that the plaintiff will be unable to prove facts legally sufficient to establish a right to relief.
Mazur, 961 A.2d at 101; Delaware Township Board of Auditors v. Delaware Township, 132
A.3d 523, 528 (Pa. Cmwlth. 2016). When evaluating the legal sufficiency of the challenged
pleading, we must accept as true all well-pled, material and relevant facts alleged and every
inference fairly deducible from those alleged facts. Mazur, 961 A.2d at 101; Delaware
Township Board of Auditors, 132 A.3d at 528.

                                                 6
acceptance, and consideration or a mutual meeting of the minds.” Ribarchak v.
Municipal Authority of City of Monongahela, 44 A.3d 706, 708 (Pa. Cmwlth.
2012).
             Upon review, we agree with the trial court that the third amended
complaint does not state a claim for breach of contract. Kelley’s statement in his
July 21, 2013 email that Appellant should “begin work immediately” and that he
“will sign” a revised contract could be interpreted in isolation as a tacit acceptance
of Appellant’s most recent proposed agreement, however, Kelley states in the very
next sentence that he would like to make “changes to the scope” of the agreement
and then lists the changes he would like Appellant to make. (Third Amended
Complaint Ex. A.) Rather than an acceptance, this email viewed in its entirety
clearly constituted a counter-offer. As our Supreme Court has explained,

             This court has long adhered to the position of 1 Restatement,
             Contracts, § 60 (1932), that “a reply to an offer, though
             purporting to accept it, which adds qualifications or requires
             performance of conditions, is not an acceptance but is a
             counter-offer.” To constitute a contract, the acceptance of the
             offer must be absolute and identical with the terms of the offer.

Hedden v. Lupinsky, 176 A.2d 406, 408 (Pa. 1962) (citation omitted); see also
Hatalowich v. Redevelopment Authority of Monessen, 312 A.2d 22, 24 (Pa. 1973);
Ribarchak, 44 A.3d at 709; Restatement (Second) of Contracts § 59 (1981).
Rather than assenting to the terms of Appellant’s latest proposed agreement,
Kelley’s July 21, 2013 email proposed substantially different terms and thus is
more properly considered a counter-offer than an acceptance.
             Appellant and Kelley had also not come to a meeting of the minds
with nothing left but to memorialize the agreement in writing. A meeting of the
minds requires the concurrence of both parties to all the terms of the agreement;

                                          7
anything less will result in a failure to execute an enforceable contract. City of
Erie v. Fraternal Order of Police, Lodge 7, 977 A.2d 3, 12 (Pa. Cmwlth. 2009);
Department of Transportation v. Pennsylvania Industries for the Blind and
Handicapped, 886 A.2d 706, 713 (Pa. Cmwlth. 2005). In his July 21, 2013 email,
Kelley removed two of the five categories of architectural services that Appellant
had proposed to perform. (Third Amended Complaint Ex. A.) Appellant sent
Kelley a revised agreement (Id. Ex. B), but Kelley informed Appellant in a July 23,
2013 email that Kelley was not pleased with this new draft because Appellant had
not removed all of the services as Kelley had requested and Appellant had
increased the price despite the fact that he would be providing fewer services. (Id.
Ex. E.)   Therefore, it was apparent that Kelley and Appellant were never in
agreement on all terms of the agreement such that there could have been a meeting
of the minds.
             However, though Appellant did not allege a breach of contract and
Count III of the Third Amended Complaint was properly dismissed, we must
conclude that the trial court erred by dismissing the first two claims asserted by
Appellant. In Counts I and II, Appellant seeks payment for architectural services
that he performed for Appellees to prepare his initial estimate, which Appellant
alleges was included in an application for a state grant that Appellees received, and
the services he performed after Kelley’s July 21, 2013 email when he told
Appellant he could begin work until he received Kelley’s July 23, 2013 email in
which Kelley stated that their agreement was unacceptable and he would hire
another architect. (Id. ¶¶26-33.) Appellant argues that he has causes of action for




                                         8
promissory estoppel, quantum meruit and unjust enrichment,4 asserting that he
relied on Kelley’s promise that he would be awarded the full contract, that Kelley
was enriched by a public grant in excess of $500,000 based upon Appellant’s work
and that he had been explicitly authorized by Kelley to work in the period between
July 21 and July 23, 2013. (Id. ¶¶27, 30, 32, 33.) Causes of action pursuant to
promissory estoppel, quantum meruit and unjust enrichment do not depend on the
existence of a valid, enforceable contract between the parties. See Shafer Electric
& Construction v. Mantia, 96 A.3d 989, 996 (Pa. 2014) (“It is well-settled at
common law...that a party shall not be barred from bringing an action based in
quantum meruit when one sounding in breach of express contract is not
available.”); Crouse v. Cyclops Industries, 745 A.2d 606, 610 (Pa. 2000)
(observing that the doctrine of promissory estoppel may be invoked where the
plaintiff relies on a promise by the defendant but there is no enforceable agreement
between the parties because the agreement was not supported by consideration);
Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999) (stating that unjust
enrichment is an equitable doctrine where the law implies a contract between
parties to require one party to pay another for the value of a benefit conferred
where no express contract exists). Therefore, the trial court erred in dismissing the
third amended complaint on the ground that no contract was entered between the
parties.




4
  Appellant also cited detrimental reliance in the third amended complaint, which is merely
another name for a promissory estoppel claim. Matarazzo v. Millers Mutual Group, Inc., 927
A.2d 689, 692 (Pa. Cmwlth. 2007).

                                            9
            Accordingly, we reverse the trial court’s September 28, 2015 order to
the extent it dismissed Counts I and II of the third amended complaint and remand
for consideration of Appellees’ remaining preliminary objections.



                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                        10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



James Spinola,                            :
d/b/a/ Hillcrest Architecture,            :
                    Appellant             :
                                          :
                   v.                     : No. 2120 C.D. 2015
                                          :
Patrick Kelley;                           :
Waste Not Technologies, LLC,              :
jointly and severally                     :


                                     ORDER

             AND NOW, this 21st day of September, 2016, it is hereby ORDERED
that the order of the Court of Common Pleas of Monroe County is hereby
AFFIRMED to the extent it dismissed Count III of the third amended complaint
filed by Appellant James Spinola, d/b/a Hillcrest Architecture, and REVERSED to
the extent it sustained the preliminary objection in the nature of a demurrer to
Counts I and II of the third amended complaint and dismissed the third amended
complaint in its entirety. This matter is REMANDED for consideration of the
remaining preliminary objections filed by Appellees Patrick Kelley and Waste Not
Technologies, LLC to Count I and Count II of the third amended complaint.

             Jurisdiction Relinquished.



                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge
