J-A14005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PROFESSIONAL SALES, INC.                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

THE ESTATE OF JOSEPH S. BREHAUT, C.
CHRISTOPHER MOORE, JR., A/K/A
CHARLES C. MOORE, JR., EXECUTOR
AND C. CHRISTOPHER MOORE, JR.,
A/K/A CHARLES C. MOORE, JR.,
INDIVIDUALLY AND JOSEPH S. BREHAUT
AND C. CHRISTOPHER MOORE, JR.
PARTNERSHIP T/D/B/A MOLL’S GARAGE

                            Appellee                 No. 1957 MDA 2014


                Appeal from the Order Entered October 15, 2014
                 In the Court of Common Pleas of Berks County
                         Civil Division at No(s): 14-818


BEFORE: BENDER, P.J., JENKINS, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY JENKINS, J.:                  FILED JULY 17, 2015

        I respectfully dissent.

        As the learned majority accurately observes, to succeed on a motion

for judgment on the pleadings, the moving party’s right to prevail must be

so clear that a trial would clearly be a fruitless exercise. Keil v. Good, 356

A.2d 768 (Pa.1976).

           As our Supreme Court has explained, appellate review of a
           trial court’s decision to grant or deny judgment on the
           pleadings is limited to determining whether the trial court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A14005-15


        committed an error of law or whether there were facts
        presented which warrant a jury trial. In conducting this
        review, we look only to the pleadings and any documents
        properly attached thereto. Judgment on the pleadings is
        proper only where the pleadings evidence that there are no
        material facts in dispute such that a trial by jury would be
        unnecessary.

        In passing on a challenge to the sustaining of a motion for
        judgment on the pleadings, our standard of review is
        limited. We must accept as true all well pleaded
        statements of fact of the party against whom the motion is
        granted and consider against him only those facts that he
        specifically admits.

John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963, 967

(Pa.Super.2007).

     Although Appellant and the majority contend that Appellant’s well-

pleaded allegations, if proven, would satisfy the 13 Pa.C.S. § 2201(c)(2)

exception to the Statute of Frauds, I disagree. The exception clearly states

that a contract could be enforceable, even if not in writing as mandated by

the Statute of Frauds, if “the party against whom enforcement is sought

admits in his pleading, testimony or otherwise in court that a contract

for sale was made…” 13 Pa.C.S. § 2201(c)(2) (emphasis added).

     In his amended complaint, Appellant alleges Appellee Mr. Moore told

him that he could have the Ferrari F40 for $800,000.00. Appellant claims

Mr. Moore said at a meeting on January 1, 2014, “it’s your car.” He submits

that, on January 6, 2014, after Appellant inspected the car with a mechanic,

Mr. Moore shook his hand and said, “we have a deal.” Further, he avers that

James Maghee, a mechanic, heard this conversation.         Appellant further


                                   -2-
J-A14005-15


alleges that Mr. Moore admitted to the existence of the oral contract over

the phone and specifically said, “you’re going to be pissed at me,” when

telling him that he had sold the Ferrari F40 to another buyer.1

       If we take all of Appellant’s allegations as true, this situation is very

unfortunate for him.       However, nowhere in Appellant’s pleadings does he

claim that Mr. Moore admitted to the existence of this oral contract in a

pleading, testimony, or otherwise in court. Thus, Appellant fails to allege an

exception to the Statute of Frauds, and his oral contract for the sale of

goods for the Ferrari F40, which was well over $500.00, is not enforceable

because it was not in writing.2

       I would affirm the trial court’s order granting Appellees’ motion for

judgment on the pleadings.
____________________________________________


1
  Appellee specifically denies all of these allegations in his answer to
Appellant’s complaint.
2
 This case is distinguishable from the case upon which Appellant relies,
Keil, 356 A.2d. In Keil, the plaintiffs alleged in their complaint that a
written contract existed:

          In paragraph 8 of their complaint, plaintiffs allege the
          existence of a writing which, if its existence is proven,
          would remove the bar of the Statute of Frauds…. In their
          answer[,] defendants deny the execution of such a deed.
          Thus, the pleadings framed a factual issue which,
          depending on whether plaintiffs’ allegations or defendants’
          allegations were ultimately proven, might have removed
          the Statute of Frauds’ prohibition against enforcement of
          an oral contract for the sale of real estate.

Keil, 356 A.2d at 771.



                                           -3-
