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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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,,                         :       No. 1957 MDA 2014

                       Appellant

              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.E., JENKINS and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED JULY 17, 2015

      I join the Majority Memorandum.

      I write separately to respond to the learned dissent.       The dissent

correctly points out that the admission exception to the Statute of Frauds in

Pennsylvania’s version of the Uniform Commercial Code, 13 Pa.C.S.

§ 2201(c)(2), requires an admission by the party to be charged in a

pleading, testimony or otherwise in court. At this stage of the case, Plaintiff

can do no more than allege an admission. This he has done. Whether the

testimony will prove him out must abide a trial. See Keil v. Good, 356 A.2d



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


768, 771 (Pa. 1976) (“If … in their complaint, or in their answer to

defendant’s ‘new matter’, plaintiffs allege facts which, if proved, would take

the oral contract outside the statutory prohibition, then an issue of fact is

presented, and the case must proceed to trial. The plaintiffs have alleged

such facts here, and for that reason the order of the court granting

defendants’ motion for judgment on the pleadings must be vacated and the

case allowed to proceed to trial.”)

      President Judge Emeritus Bender joins this concurring memorandum.




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