J-A12035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES E. PHILLIPS                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

GREGORY STONE, INDIVIDUALLY;
SINCLAIR REALTY, INC., STONE &
COMPANY AND WENDELL H. STONE
COMPANY, INC.

                         Appellees                  No. 1481 WDA 2016


            Appeal from the Order Entered September 6, 2016
          In the Court of Common Pleas of Westmoreland County
                   Civil Division at No(s): 168 OF 2014


BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 25, 2017

      Appellant, Charles E. Phillips, appeals from the order entered on

September 6, 2016, granting the motion for summary judgment filed by

Gregory Stone (Greg Stone), individually, Sinclair Realty, Inc., Stone &

Company, and Wendell H. Stone Company, Inc. (referred to collectively as

“Stone”) in this action for breach of contract. Upon careful consideration, we

affirm in part, vacate in part, and remand for additional proceedings.

      We set forth the facts and procedural history of this case as follows.

On January 13, 2014, Appellant filed a complaint against Stone for breach of

contract, alleging that the parties entered into an oral contract in July 2012

whereby Appellant agreed to advance money for the construction of a

building on property owned by Stone and that Stone would reimburse
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Appellant for the money advanced. See Complaint, 1/13/2014, at 2, ¶ 7.

Appellant    alleged     that    his   total     investment   for   construction   was

$269,676.00, including interest incurred. Id. at 2, ¶ 9. Appellant conceded

that Stone paid him $100,000.00, but avers that Stone still owes him

$169,676.00.       Id. at 2, ¶ 10.             In paragraphs 11 through 16 of the

complaint, Appellant further alleged that he was entitled to reimbursement

for items and services provided to, or acquired by, Stone that were not

related to construction expenditures.               Id. at 2-4, ¶¶ 11-16. Finally,

Appellant claimed that Stone stole a chandelier and dining room table set

from him. Id. at 3-4, ¶ 17.1



____________________________________________


1
     In its opinion supporting the grant of Stone’s motion for summary
judgment, the trial court examined Appellant’s complaint in three distinct
parts. In separate discussions, the trial court addressed Appellant’s claims
relating to construction-related expenditures (found at paragraphs seven
through 10 of Appellant’s complaint), allegations concerning reimbursement
for items and services unrelated to construction expenses (set forth at
paragraphs 11 through 16 of Appellant’ complaint), and averments relating
to an alleged theft (found at paragraph 17 of Appellant’s complaint). On
appeal, Appellant argues only that the trial court erred in granting summary
judgment on those claims specifically pertaining to the construction of the
building. See Appellant’s Brief at 9-11. Appellant does not challenge the
trial court’s dismissal of his claims unrelated to construction expenditures
and, thus, he has abandoned those issues. See Burrell Const. & Supply
Co. v. Straub, 656 A.2d 529, 534 (Pa. Super. 1995) (failure to cite legal
authority and lack of development of an argument results in waiver).
Accordingly, we affirm the trial court’s grant of summary judgment
regarding claims unrelated to construction expenditures and confine our
analysis to the claim pertaining to the erection of the building at issue.




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       The    parties   took    the       depositions     of   Appellant,   Taylor   Phillips

(Appellant’s son), and Greg Stone. On May 13, 2016, Stone filed a motion

for summary judgment alleging that Appellant failed to establish the

necessary elements of a breach of contract action. Both parties filed briefs

in support of their position and the trial court held oral argument.

Thereafter,     each    party       had     an       opportunity   to   submit   additional

documentation. Appellant filed an affidavit from Eve Phillips.2 Stone filed a

response.



____________________________________________


2
  In the affidavit, Eve Phillips claims, “Mr. Stone stated on numerous
occasions that […] if [Appellant] would construct the building, Mr. Stone
would pay for it.” Affidavit of Eve Phillips, 7/7/2016, at 1. The affidavit
further states that:

       Mr. Stone requested [that] items related to the construction of
       the building be presented to Mr. Stone and [his secretary]. Mr.
       Stone stated that he would pay [Appellant] what was due when
       the loan proceeds were available.

                                *                *             *

       […R]ather than paying the full amount due, Mr. Stone had [his
       secretary] issue a check for [$100,000.00], rather than the
       [$226,715.84], which at that time was the amount due.

                                *                *             *

       Mr. Stone stated that the balance would be paid to [Appellant] in
       a week[;] that payment was never made.

Id. at 2-3.




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       The trial court granted Stone’s motion for summary judgment in an

opinion and order filed on September 6, 2016. This timely appeal resulted. 3

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

          1. Did the [t]rial [c]ourt commit an error of law when
             entering summary judgment for [Stone]?

          2. Did the [t]rial [c]ourt abuse its discretion in granting
             summary judgment for [Stone]?

          3. Are there questions of fact, including the admissions by
             [Stone] of the existence of a debt owed to [Appellant],
             creat[ing] a question of fact for the [j]ury[?]

Appellant’s Brief at 6.

       Initially, we address Stone’s contention that Appellant’s brief fails to

follow our rules of appellate procedure and is so deficient that it precludes

our review.     See Stone’s Brief at 5-8.        Upon review, Appellant’s brief is

underdeveloped, providing only four citations to legal authority pertaining to

the rules of civil procedure governing summary judgment and our standard

of review in such cases.        See Appellant’s Brief at ii.   For this reason, we

could dismiss the appeal, but because we can discern the issue presented,

we will address this appeal pursuant to our discretion under Pa.R.A.P.

105(a).     See AmerisourceBergen Corp. v. Does, 81 A.3d 921, 923 (Pa.

____________________________________________


3
   Appellant filed a notice of appeal on September 30, 2016. On October 6,
2016, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on October 24, 2016. The trial court relied upon its opinion filed on
September 6, 2016.



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Super. 2013). “However, we caution counsel to adhere to the dictates of our

rules of procedure in future practice before this Court.”       Id. (citation

omitted).

     All of Appellant’s issues challenge the trial court’s grant of Stone’s

motion for summary judgment and we adhere to the following standard of

review:

     Summary judgment is appropriate only in those cases where the
     record clearly demonstrates that there is no genuine issue of
     material fact and that the moving party is entitled to judgment
     as a matter of law. When considering a motion for summary
     judgment, the trial court must take all facts of record and
     reasonable inferences therefrom in a light most favorable to the
     non-moving party. In so doing, the trial court must resolve all
     doubts as to the existence of a genuine issue of material fact
     against the moving party, and, thus, may only grant summary
     judgment where the right to such judgment is clear and free
     from all doubt. On appellate review, then, an appellate court
     may reverse a grant of summary judgment if there has been an
     error of law or an abuse of discretion. But the issue as to
     whether there are no genuine issues as to any material fact
     presents a question of law, and therefore, on that question our
     standard of review is de novo. This means we need not defer to
     the determinations made by the lower tribunals. To the extent
     that this Court must resolve a question of law, we shall review
     the grant of summary judgment in the context of the entire
     record.

Feleccia v. Lackawanna College, 156 A.3d 1200, 1209 (Pa. Super. 2017)

(citations and brackets omitted).

     While Appellant presents three issues in his statement of questions

presented, he essentially presents a single issue for our review.        See

Appellant’s Brief at 9-11.   Appellant argues that the trial court abused its

discretion in granting Stone’s motion for summary judgment because there

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J-A12035-17



were genuine issues of material fact regarding the existence of an oral

contract.     Id. at 9-10.         Appellant avers that he agreed to advance

construction expenses, Stone agreed to reimburse him for those expenses

and Stone’s partial payment is evidence of the existence of the oral contract.

Id.    More specifically, Appellant contends that he set forth facts that Stone

paid Appellant $100,000.00 and promised to pay the balance of the amount

Appellant spent on construction within a week.4 Id. Thus, Appellant posits

____________________________________________


4
     Appellant contends that he supplemented the record with an affidavit
from Eve Phillips who claimed she heard the business dealings between
Appellant and Stone. See Appellant’s Brief at 9.           Upon review of the
affidavit, we conclude that it was proper for the trial court to not consider it.
An affidavit is defined as:

         a statement in writing of a fact or facts, signed by the
         person making it, that either (1) is sworn to or affirmed
         before an officer authorized by law to administer oaths, or
         before a particular officer or individual designated by law as
         one before whom it may be taken, and officially certified to
         in the case of an officer under seal of office, or (2) is
         unsworn and contains a statement that it is made subject to
         the penalties of 18 Pa.C.S.[A.] § 4904 relating to unsworn
         falsification to authorities.

Pa.R.C.P. 76; see also Ackler v. Raymark Industries, Inc., 551 A.2d
291, 295 (Pa. Super. 1988) (citation omitted) (“An affidavit is a formal
written or printed voluntary ex parte statement sworn or affirmed to before
an official authorized to take oaths.”). “Generally, affidavits must be
executed by one who possesses personal knowledge of the facts alleged[.]”
Ackler, 551 A.2d at 295. Here, the certified record contains two copies of
an affidavit executed by Eve Phillips. Neither copy contains an oath by an
official officer or a verification relating to unsworn falsification to authorities
under 18 Pa.C.S.A. § 4904. The trial court gave Appellant an opportunity to
file a notarized affidavit in response to Stone’s motion for summary
judgment. Trial Court Opinion, 9/6/2016, at 1 (the trial court “gave each
(Footnote Continued Next Page)


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J-A12035-17



that “Stone admitted [] liability by making partial payment and promising to

pay the rest[.]” Id.

      Here, the trial court completely failed to address Appellant’s contention

that Stone paid him $100,000.00 towards their alleged contract, which

amounted to an acknowledgement of the debt.           Instead, the trial court

concluded:

      After a review of all the pleadings, and viewing the evidence in
      the light most favorable to [Appellant], it is evident that
      [Appellant] failed to provide sufficient evidence to raise a
      genuine issue of material fact as to the existence of a contract,
      which is a necessary element of a breach of contract action.
      [Stone’s] brief in support of motion for summary judgment
      points out contradictions between [Appellant’s] complaint and
      [Appellant’s] deposition testimony that support this finding. For
                       _______________________
(Footnote Continued)

[party] an opportunity to provide additional documentation, including a
notarized affidavit from [Appellant] and response to said affidavit by
[Stone].”). The certified record contains two identical copies of Eve Phillips’
affidavit.     Although Stone filed a “reply to [Appellant’s] amended
affidavit[,]” there is no “amended” affidavit contained in the certified record.
Thus, we are confined to review the only affidavit contained in the certified
record. See Commonwealth v. Ross, 57 A.3d 85, 96 (Pa. Super. 2012).
We remind Appellant “[i]t remains the appellant's responsibility to ensure
that a complete record is produced for appeal.” Kessler v. Broder, 851
A.2d 944, 950 (Pa. Super. 2004). Based upon all of the foregoing, the trial
court properly disregarded Eve Phillips’ affidavit in ruling on Stone’s motion
for summary judgment. See Al Hamilton Contracting Co. v. Cowder, 644
A.2d 188, 190 (Pa. Super. 1994) (“The order of a trial court may be affirmed
on appeal if it is correct on any legal ground or theory, regardless of the
reason or theory adopted by the trial court.”). Nevertheless, as we shall
explain, we are constrained to vacate summary judgment on Appellant’s
construction reimbursement claim since the deposition testimony of
Appellant and his son, Taylor Phillips, raises genuine issues of material fact
regarding the existence of Stone’s promise to reimburse Appellant for
construction expenditures, and breach of that commitment.



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J-A12035-17


       example, [Appellant] alleges that [Stone] agreed to reimburse
       those costs. Since there is no evidence that a contract existed,
       [Stone] is entitled to summary judgment.

Trial Court Opinion, 9/6/2016, (unpaginated) at *2.                Upon review of the

certified record, we disagree with the trial court’s assessment.

       Here, at all times, Appellant has maintained that Stone’s payment of

$100,000.00 showed Stone’s acknowledgment of the debt that resulted from

their oral contract for construction.          See Complaint, 1/13/2014, at 2 ¶ 10

(“[Stone has] paid to [Appellant] toward the total debt $100,000.00, leaving

a balance due on the money advanced by [Appellant] to [Stone] towards the

above mentioned buildings of $169,676.00.”). In his deposition, Appellant

testified   consistently     with   this   averment,     stating    that   Stone   paid

$100,000.00 to Appellant after receiving construction invoices totaling

$269,676.00. Deposition of Charles Phillips, 8/13/2014, at 34-35, 105. In

addition, Appellant testified that Stone promised to pay the balance within a

week.5      Id.    Appellant’s son, Taylor Phillips testified similarly.           See
____________________________________________


5
   The trial court determined that there was no evidence that Stone agreed
to reimburse Appellant for construction expenses.      However, Appellant
testified:

       Q:     […] Now, Paragraph 10 of the [c]omplaint […] alleges that
              you and your son promised Mr. Stone that you would
              assume the costs of construction for this new building.

       A:     Right.

       Q:     […] Are you denying that you and your son agreed to pay
              for the costs of the construction of this building?

(Footnote Continued Next Page)


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J-A12035-17



Deposition of Taylor Phillips, 8/13/2014, at 74-75. Taylor Phillips specifically

rejected the suggestion that the $100,000.00 check from Stone was for the

purchase of furniture or some other reason.       Id. at 76.   Instead, Taylor

Phillips stated that the check from Stone came in response to Appellant’s

submission of invoices for the costs of the building construction.       Id. at

78-81.
                       _______________________
(Footnote Continued)

      A:     We were going to pay for the construction of the building,
             yes.

      Q:     […] Is it your contention that Mr. Stone was going to pay
             you back for the money you spent building this building?

      A:     Yes.

      Q:     And on what basis do you assert that Mr. Stone was going
             to pay you back for this money you advanced? Did he
             agree to that up front?

      A:     Yes.

Deposition of Charles Phillips, 8/13/2014, at 90-92. Thereafter, Appellant
testified that the form of Stone’s reimbursement may have changed from a
cash repayment to the transfer of property or to the formation of a granite
business partnership between the parties. Id. at 92. While this later
testimony could have raised issues surrounding Appellant’s credibility, it
does not support the entry of summary judgment, as the trial court
determined, because Appellant’s testimony regarding Stone’s promise to
reimburse construction-related expenditures offered an evidentiary basis for
finding a valid oral agreement between the parties.            It remained the
factfinder’s responsibility to resolve conflicts in the evidence and determine
whether a contract for reimbursement of construction expenses existed. As
we will discuss infra, Appellant’s testimony coupled with the testimony that
Stone paid Appellant $100,000.00 after receiving invoices for construction
costs present compelling circumstances for allowing this case to proceed to
trial. See Deposition of Taylor Phillips, 8/13/2014, at 74-81.



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      In its motion for summary judgment, Stone contended that Appellant

“not only failed to aver how [Stone] allegedly breached the supposed oral

agreement, but has produced no evidence that Greg Stone ever agreed to

reimburse [Appellant] for the construction costs of the [n]ew [b]uilding.”

Stone’s Motion for Summary Judgment, 5/13/2016, at 8.         However, in its

answer to the complaint, and in a subsequent amended answer, Stone

admitted to paying Appellant $100,000.00, but claimed the payment was not

pursuant to a valid oral contract for construction. See Stone’s Answer and

New Matter, 3/11/2014, at 3, ¶ 10; see also Stone’s Amended Answer,

4/24/2014, at 3-4, ¶ 10. Instead, Stone maintained that the $100,000.00

payment to Appellant was “for various furniture expenditures and other

items related to the project.” See Stone’s Amended Answer, 4/24/2014, at

3-4, ¶ 10.

      “It is black letter law that in order to form an enforceable contract,

there must be an offer, acceptance, consideration, or mutual meeting of the

minds.”      Walton v. Johnson, 66 A.3d 782, 786 (Pa. Super. 2013). “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 pleaded specifically, it is axiomatic that a contract may be

manifested orally, in writing, or as an inference from the acts and conduct of

the parties.”    Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 896 (Pa.

Super. 2011) (citation omitted).

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J-A12035-17



     We previously determined:

     An implied contract arises where the parties agree upon the
     obligations to be incurred, but their intention, instead of being
     expressed in words, is inferred from their acts in the light of the
     surrounding circumstances.

     Implied contracts arise under circumstances which, according to
     the ordinary course of dealing and the common understanding of
     men, show a mutual intention to contract. When ascertaining the
     intent of the parties, we must look to the outward and objective
     manifestations of the assent to enter into the contract.

Dittman v. UPMC, 154 A.3d 318, 325–326 (Pa. Super. 2017) (internal

citations and quotations omitted).   “This court has recognized that there can

be no more clear and unequivocal acknowledgement of a debt than

payment.” Cole v. Lawrence, 701 A.2d 987, 990 (Pa. Super. 1997).

     Here, Appellant testified that Stone agreed to reimburse construction

expenses and it is undisputed that Stone paid Appellant $100,000.00.

Appellant claims that said payment confirmed a valid oral contract for

reimbursement and represented Stone’s tangible acknowledgment of that

obligation. Stone admits that he paid Appellant $100,000.00, but claims it

was for expenses unrelated to the construction of the building at issue.

These contentions are squarely at odds and create an issue of material fact

for a factfinder to determine.   Accordingly, we vacate the portion of the

order granting summary judgment as to Appellant’s claim that Stone

breached a contract to reimburse Appellant for construction expenses.

Because Appellant failed to preserve any other issues, we affirm the trial




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J-A12035-17



court’s order insofar as it granted summary judgment as to the other claims

in Appellant’s complaint.

      Order affirmed in part and vacated in part.      Case remanded for

additional proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




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