J-A20037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DeLUCA ENTERPRISES, INC., AND                :      IN THE SUPERIOR COURT OF
DeLUCA OFFICE ASSOCIATES, G.P.,              :            PENNSYLVANIA
                                             :
              v.                             :
                                             :
SAP AMERICA, INC., AND IDS SCHEER            :
AMERICAS, INC.,                              :
                                             :
APPEAL OF: DeLUCA OFFICE                     :
ASSOCIATES, G.P.,                            :
                                             :
                    Appellant                :           No. 3278 EDA 2013

             Appeal from the Judgment entered on October 24, 2013
                in the Court of Common Pleas of Bucks County,
                         Civil Division, No. 2008-02365

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED SEPTEMBER 05, 2014



entered against it and DeLuca Enterprises, Inc.1 (collectively referred to as



                          2
                              We affirm.

        The trial court concisely set forth in its Opinion the relevant facts and

procedural history underlying this appeal, which we adopt herein by




1
    DeLuca Enterprises, Inc. is not a party to this appeal.
2
    IDS is not a party to this appeal.
J-A20037-14

reference. See Trial Court Opinion, 2/10/14, at 2-5.3, 4

      On appeal, DeLuca presents the following issues for our review:

      Did the trial court abuse its discretion and/or commit an error of
      law in granting a nonsuit in favor of [SAP] on              breach
      of contract claim against [SAP]:

      a. [B]y prejudging and prematurely deciding, and as a
         result dismis
         Complaint[, i.e., breach of contract,] before the close of
                          -]in[-]chief[?]

      b. [B]y failing to find that [DeLuca] presented sufficient
         evidence for the jury to find that [SAP] failed to deliver
         the [Enterprise Resource Planning] Software for the
         Homebuilding Industry [] containing the functional
         specifications [DeLuca] contracted for, as admitted by


          [SAP] breached its contract with [DeLuca?]

      c. [B]y failing to find that [DeLuca] presented sufficient
         evidence for the jury to find that [SAP] denied [DeLuca]

          the [Software Licensing Agreement,] thereby allowing the
          jury to conclude that [SAP] breached its contract with
          [DeLuca?]

      d. Without considering the full and complete testimony of
         [Peterson]?

Brief for Appellant at 6 (some capitalization omitted).



3

                                                                      -in-chief.

at that time.
4
                  -Trial Motion, DeLuca requested that the trial court vacate

different judge) on its breach of contract count against SAP. Therefore, only
DeL

                                  -2-
J-A20037-14

      Initially, we express our disapproval of the Rule 1925(b) Concise



concise, is 14 pages in length and sets forth 20 separate issues (and 28 sub-

issues), many of which are redundant and voluminous.      See Rule 1925(b)

Concise Statement, 12/16/13; see also Pa.R.A.P. 1925(b)(4)(iv) (providing

         he Statement should not be redundant or provide lengthy

                                       Trial Court Opinion, 2/10/14, at 5

                                                                     ement).

Although we acknowledge that Rule 1925(b) provides that, without more,

the number of issues raised in a Concise Statement will not be grounds for

                                                           -redundant, non-

frivolous issues are set fort

Pa.R.A.P. 1925(b)(4)(iv); see also Tucker v. R.M. Tours, 939 A.2d 343,

346



coherent as to permit the trial court to understand the specific issues being

                      Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super.



1925(b) statement, an appe

an opinion addressing the issues on appeal, thereby effectively precluding



1925(b) Statement, we could deem all of its issues waived and dismiss the




                                 -3-
J-A20037-14

appeal. Nevertheless, we, like the trial court, will address the merits of the

issues.



breach of contract claim against SAP.

            The trial court, on the oral motion of a party, may enter a
      nonsuit if the plaintiff has failed to establish a right to relief.
      Pa.R.C.P., Rule 230.1, 42 Pa.C.S.A. In evaluating the trial

      on behalf of the plaintiff as true, reading it in the light most
      favorable to [the plaintiff]; giving [the plaintiff] the benefit of
      every reasonable inference that a jury might derive from the

      favor. Additionally, a compulsory nonsuit may be entered only
      in cases where it is clear that the plaintiff has not established a
      cause of action. When so viewed, a nonsuit is properly entered
      if the plaintiff has not introduced sufficient evidence to establish
      the necessary elements to maintain a cause of action.

                                               , 59 A.3d 621, 631 (Pa. Super.

2012) (quotation marks, brackets, ellipses and citations to case law

omitted).



denial of its Post-Trial Motion seeking a new trial, our standard of review is

                                                                new trial, we must

determine if the trial court committed an abuse of discretion or error of law

                                                   Brady v. Urbas, 80 A.3d 480,

483 (Pa. Super. 2013) (citation and brackets omitted).

      DeLuca first argues that the trial court committed reversible error by



contract    against   SAP   []   in   the   very    early   stages   of

                                      -4-
J-A20037-14
                                                  5
case[-]in[-                                           In support of this claim,



made outside of the presence of the jury during the direct examination of



because this is a fraud [in] the inducement case and we are now talking

                                                                      -45; see

also Trial Court Opinion, 2/10/14, at 16 (setting forth the full exchange

between Judge Mellon and counsel for DeLuca). According to DeLuca,



      two causes of action as against [SAP]: Breach of Contract, and



      for fraud in the inducement against [SAP], but rather against

                                                , the Trial Court clearly
      exhibited a pre-


Brief for Appellant at 23.




      There is no evidence on the record showing prejudgment or

      received a fair trial. [DeLuca was] allowed to present all of [its]

5
 As noted above, the record is clear that the trial court did not actually rule
                                   after                                   -in-
chief.

                                  -5-
J-A20037-14


      point did the [Trial] Court interject in an inappropriate manner,
      or limit DeLuca from presenting [its] case.

Trial Court Opinion, 2/10/14, at 15; see also id. at 16 (wherein Judge




supported by the record, and we discern no reversible error in his isolated



                                     tract claim against SAP.6    Contrary to



                         i.e., the contract between SAP and DeLuca.



together, as both assert that the trial court erred in granting a nonsuit based

upon its determination that DeLuca had failed to establish a prima facie

claim for breach of contract against SAP. See Brief for Appellant at 24-43.

DeLuca first argues that the trial court erred in determining that, as SAP had
                                                                           7
undisputedly delivered the                                                     to

DeLuca, and the software was never run by DeLuca, DeLuca could not


6
                                        was actually made in reference to


DeLuca did not raise a breach of contract claim against IDS.
7

an integrated solution for the Homebuilding Industry with state-of-the-art
Variant Configuration (i.e., construction options coordination and fully
integrated pricing and system management) functionality embedded within


                                  -6-
J-A20037-14

establish a prima facie claim for breach of contract. Id. at 24-25, 26-28, 38.

Specifically, DeLuca maintains that SAP breached the SLA by failing to

               -in-

                                                 Id. at 25, 27, 38. In support

of this claim, DeLuca points to the trial testimony of



licensed ERP software[,] i.e.[,] a fully integrated software system built upon

                                     Id. at 25 (citing N.T., 5/14/13, at 162).

According to DeLuca, the trial court erred in failing to adequately consider




                                                -26, 34.




                                                            equired under the

         Id. at 38-39 (quoting Trial Court Opinion, 2/10/14, at 12).

      Additionally, DeLuca argues that the trial court erred in failing to find
                                                                [8]



contractually licensed t




8

See Trial Court Opinion, 2/10/14, at 12 n.58.

                                  -7-
J-A20037-14

(footnote added; some internal quotation marks and capitalization omitted);

see also id. at 37-38.

     Finally, DeLuca argues that SA




                                             Id. at 39.

     In its Opinio

above-mentioned claims, set forth the applicable law, discussed the relevant

evidence of record, and determined that the court properly granted a nonsuit

                                       See Trial Court Opinion, 2/10/14, at

7-

by the law and the record, and we therefore affirm on this basis as to

                                  See id.

     In its final issue, DeLuca argues that Judge Mellon erred by granting



                                                  -47.    Specifically, DeLuca

contends that, during the playing to the jury of the videotaped deposition of



                                                                          Id.

at 43-44.

     The trial court addressed this claim in its Opinion and determined that

DeLuca waived the claim by its failure to object to this alleged impropriety.

See Trial Court Opinion, 2/10/14, at 17; see also Pa.R.A.P. 302(a)

                                 -8-
J-A20037-14



                                          Additionally, the trial court correctly

determined that even if this claim was not waived, it lacks merit because the



                                                         Trial Court Opinion,

2/10/14, at 9; see also id.



rationale, which is supported by the record. See id. at 9, 17.

      After reviewing the record, and viewing all of the evidence adduced at

trial in the light most favorable to DeLuca, we conclude that the trial court

properly determined that DeLuca had failed to establish a prima facie cause

of action for breach of contract against SAP, and c

Motion for Nonsuit regarding this count. Additionally, the trial court properly

                      -Trial Motion seeking a new trial on the breach of

contract count. Therefore, we affirm the Judgment entered against DeLuca.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/5/2014




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