J-A23039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MALCOLM S. MORRIS, D.M.D.                 :       IN THE SUPERIOR COURT OF
2031 Perry Highway                        :             PENNSYLVANIA
Wexford, PA 15090,                        :
                                          :
                  Appellant               :
                                          :
            v.                            :
                                          :
DAVID C. MARTIN, JR., ESQUIRE, AND        :
PATTI LERDA, ESQUIRE, Individually        :
and t/d/b/a MARTIN & LERDA,               :
ATTORNEYS AT LAW,                         :
                                          :
                  Appellees               :           No. 1868 WDA 2013

            Appeal from the Order entered on November 4, 2013
             in the Court of Common Pleas of Allegheny County,
                      Civil Division, No. GD-13-011433

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 31, 2014

      Malcolm S. Morris, D.M.D. (“Morris”) appeals from the Order sustaining

the preliminary objections filed by David C. Martin, Jr., Esquire, Patti Lerda,

Esquire, individually (“Lerda”) and t/d/b/a Martin & Lerda, Attorneys at Law

(collectively, “the Appellees”), and dismissing Morris’s Second Amended

Complaint with prejudice. We reverse and remand for further proceedings.

      The Appellees hired Morris as an expert witness in a dental malpractice

case. After the case settled, Morris filed a Complaint against the Appellees

for failure to pay his expert witness fees, amounting to $345,100.00. The

Appellees filed Preliminary Objections, arguing that the Complaint did not

contain any allegation of agreed-upon contractual terms or a clear
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accounting of the expert witness fees sought by Morris.           On August 21,

2013, the trial court granted the Appellees’ Preliminary Objections and

ordered   Morris   to   “amend    his   pleading   and   attach    the   required

documentation …” within twenty days of the entry of the Order.

      On September 6, 2013, Morris filed an Amended Complaint, arguing

that the Appellees had breached an oral contract to pay Morris’s expert

witness fees.   Morris attached to the Amended Complaint emails between

Morris and Lerda regarding the fees in question.         Morris also attached a

check from the Appellees for $10,000.00, which they purported was

payment in full for Morris’s services.      Morris filed a Second Amended

Complaint on September 13, 2013, to correct a typographical error.1

      The Appellees filed Preliminary Objections, arguing that Morris failed to

specify the agreed-upon contractual terms, and Morris failed to support his

claim for $345,100.00 in expert fees. The trial court granted the Appellees’

Preliminary Objections and dismissed the Second Amended Complaint with

prejudice. The trial court specifically found that Morris failed to sufficiently

plead the existence of a contract based upon course of conduct; Morris did

not attach any bills; and Morris’s claim for $345,100.00 in expert fees was




1
   In the Second Amended Complaint, Morris adopted the averments made in
the Amended Complaint. In addressing Morris’s claims on appeal, we will
cite to the Amended Complaint, which sets forth, in detail, Morris’s relevant
averments.

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unreasonable on its face, as there was no itemization of work done. Morris

filed a Motion for Reconsideration,2 which the trial court denied.

      Morris filed a timely Notice of Appeal. The trial court ordered Morris to

file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement.

Morris filed a timely Concise Statement, and the trial court issued an

Opinion.

      On appeal, Morris raises the following questions for our review:

      1. [Whether t]he trial court erred in dismissing [Morris’s] Second
         Amended Complaint with prejudice and without leave to
         amend, as the Second Amended Complaint complied with
         Pa.R.C.P. 2128[?]

      2. [Whether t]he trial court erred in dismissing [Morris’s] breach
         of oral contract claim with prejudice, as the Second Amended
         Complaint sufficiently states a claim for damages arising out
         of [the Appellees’] breach of a binding oral contract[?]

      3. [Whether t]he trial court erred in dismissing [Morris’s] claim
         for breach of a contract implied in law with prejudice, as the
         Second Amended Complaint sufficiently states a claim for
         damages arising from [the Appellees’] breach of a binding
         contract implied from the conduct of the parties in light of the
         surrounding circumstances, including the parties’ course of
         dealing[?]

      4. [Whether t]he trial court erred in dismissing all claims stated
         in [Morris’s Second] Amended Complaint with prejudice, to
         the extent [that] such dismissal was based on the trial court’s
         insistence upon greater specificity in pleading[?] Claims and
         damages are properly pleaded generally, and no greater
         specificity is required by the [Pennsylvania] Rules of Civil
         Procedure.


2
  Morris attached a detailed description of his work on the underlying
malpractice claim to the Motion for Reconsideration.       See Motion for
Reconsideration, 11/15/13, at 1-2 (unnumbered), Exhibit A.

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Brief for Appellant at 3-4 (emphasis omitted).

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

Joyce v. Erie Ins. Exch., 74 A.3d 157, 162 (Pa. Super. 2013) (citation

omitted).

     We will address Morris’s claims together, as he has only set forth a

single claim in his Argument section. Morris contends that the trial court’s

dismissal of his Second Amended Complaint with prejudice denied him the

right to collect his expert witness fees on a breach of contract claim. Brief

for Appellant at 7.      Morris asserts that preliminary objections are

inappropriate to challenge the damages sought in a complaint. Id. Morris

argues that a trial judge or a jury should have determined the amount of

fees owed to him. Id.

           A breach of contract action involves (1) the existence of a
     contract, (2) a breach of a duty imposed by the contract, and (3)
     damages. While every element must be pled specifically, it is


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      axiomatic that a contract may be manifest orally, in writing, or
      as an inference from the acts and conduct of the parties.

Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super.

2005) (citations and quotation marks omitted); Pennsy Supply, Inc. v.

Am. Ash Recycling Corp. of Pennsylvania, 895 A.2d 595, 600 (Pa.

Super. 2006) (stating that “[w]hile not every term of a contract must be

stated in complete detail, every element must be specifically pleaded.

Clarity is particularly important where an oral contract is alleged.”) (citation

omitted).

      Instantly, Morris averred that he entered into an oral agreement with

the Appellees to be a key expert witness in a lawsuit involving dental

malpractice.   Amended Complaint, 9/6/13, at 2.        Morris stated that the

Appellees had previously retained him as an expert witness, each pursuant

to oral agreements, wherein the Appellees would pay him after the case

concluded. Id. Morris stated that his usual billing rate is $350.00 per hour

and that the Appellees were aware of this rate based upon their prior

dealings with Morris. Id. Morris stated that he worked on the underlying

dental malpractice case for a total of 986 hours over a five-year period. Id.

Morris sought payment of expert fees totaling $345,100.00.           Id. at 3.

Morris averred that the Appellees refused to pay him the $345,100.00, and

instead gave him a $10,000.00 check as payment for his expert fees. Id.;

see also id., Exhibit 3 (wherein the Appellees sent Morris a letter stating




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that they were enclosing a $10,000.00 check as payment in full for his

services).

      In light of the facts alleged in Morris’s Second Amended Complaint,

which are assumed to be true, and the inferences reasonably deducible

therefrom, we conclude that Morris’s Second Amended Complaint was

adequate to survive the Appellees’ preliminary objections.     Indeed, Morris

pled the existence of an oral contract, the Appellees’ failure to pay under the

contract, and damages. See Sullivan, 873 A.2d at 716-17 (concluding that

preliminary objections in the nature of a demurrer were improperly granted

on a breach of contract claim where appellant averred the existence of a

contract, the appellee’s breach of the contract, and damages); see also id.

at 716 (stating that while the “[a]ppellant will carry the burden of proving

the oral agreement’s existence at trial, for purposes of this appeal we are

constrained to accept [a]ppellant’s averments as true.”); Gaston v.

Diocese of Allentown, 712 A.2d 757, 758 (Pa. Super. 1998) (stating “[i]f

the facts pleaded state a claim for which relief may be granted under any

theory of law, then there is sufficient doubt to require rejection of the

demurrer.”) (citation omitted).    Accordingly, we reverse the trial court’s

Order dismissing the Second Amended Complaint with prejudice and remand




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the case for further proceedings.3

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/31/2014




3
  This Court, like the trial court, is skeptical of the amount claimed by Morris
for expert witness fees. However, because of the relevant standard of
review, we are constrained to reverse the Order sustaining Preliminary
Objections.

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