J-A01038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DANIEL CASTRO                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LISA MARIE ROSADO                          :   No. 877 EDA 2019

                Appeal from the Order Entered January 22, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): August Term, 2016, NO. 3045


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                               FILED MARCH 04, 2020

        Appellant, Daniel Castro, appeals from the order entered of January 22,

2019, granting non-suit, with prejudice, on Appellant’s cause of action for

breach of fiduciary duty against Appellee, Lisa Marie Rosado, related to her

inadequate filing or failing to file Appellant’s federal income tax returns. This

January 2019 order, in turn, finalized an order from March 9, 2018, granting

Appellee’s motion for summary judgment on additional claims, including a

cause of action for breach of contract.        We reverse the entry of summary

judgment on the breach of contract claim only, and we remand for further

proceedings consistent with this decision.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A01038-20


        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case.        See Trial Court Opinion, filed

June 27, 2019, at 1-10. Therefore, we have no reason to restate them at

length here. For the convenience of the reader, we briefly note that Appellant

commenced this action by complaint on August 23, 2016. By March 21, 2017,

Appellant had filed his third and final amended complaint, which included

counts for conversion of property, breach of contract, and breach of fiduciary

duty.    The third amended complaint listed multiple instances of Appellee

allegedly breaching her fiduciary duty to Appellant, including inadequately

filing or failing to file Appellant’s federal income tax returns. Appellee filed a

motion for summary judgment, which the trial court granted on March 9,

2018, as to all counts, except for the portion of the breach of fiduciary duty

claim relating to Appellant’s tax returns.         Appellant filed a motion for

reconsideration, which the trial court denied on March 23, 2018. The trial

court granted non-suit on the remaining portion of the breach of fiduciary duty

claim on January 22, 2019. Appellant filed this timely appeal on February 21,

2019.1

        Appellant presents the following issues for our review:

        1.   Did the [trial c]ourt error by ignoring the fact that a contract
        may be manifest orally, in writing, or as an inference from the acts
        and conduct of the parties. J.F. Walker Co., Inc. v. Excalibur
        Oil Group, Inc., 792 A.2d 1269, 1272 (Pa. Super. Ct. 2002),
____________________________________________


1Appellant filed his statement of errors complained of on appeal on March 19,
2019. The trial court entered its opinion on June 27, 2019.

                                           -2-
J-A01038-20


       citing John Edward Murray, Jr., Cases and Materials on Contracts
       184 (3rd ed. 1983); Axilband v. McAllister, 180 A.2d 244, 249
       (Pa. 1962), noting that commissions can be proven through oral
       agreement?

       2.     Did the [trial c]ourt error in dismissing [Appellant]’s claim
       for Breach of Contract on the basis that [Appellant] did not provide
       any authority that holds that the breach of a Power of Attorney
       warrants a four-year statute of limitations despite the provision of
       . . . 42 Pa.C.S.A. Judiciary and Judicial Procedure §5525:

          Four year limitation states:

              (a) (8) An action upon a contract, obligation or liability
              founded upon a writing not specified in paragraph (7),
              under seal or otherwise, except an action subject to
              another limitation specified in this subchapter.

Appellant’s Brief at 2-3 (trial court’s answers omitted).2

       Entry of summary judgment is governed by Rule 1035.2 of the Rules of

Civil Procedure:

       After the relevant pleadings are closed, but within such time as
       not to unreasonably delay trial, any party may move for summary
       judgment in whole or in part as a matter of law

          (1) whenever there is no genuine issue of any material fact
          as to a necessary element of the cause of action or defense
          which could be established by additional discovery or expert
          report, or

____________________________________________


2  Generally, to preserve issues for appeal, a timely post-trial motion must be
filed. See Pa.R.C.P. 1038; see also Pa.R.C.P. 227.1; Devon Service, LLC
v. S & T Realty, 171 A.3d 287, 292-93 (Pa. Super. 2017). However, as
Appellant is appealing from the trial court’s grant of the motion for summary
judgment only, not the grant of non-suit, and as Appellant filed a motion for
reconsideration after the order granting summary judgment, we conclude that
Appellant did not need to file a post-trial motion in order to preserve his claims
for appeal. See Note to Pa.R.C.P. 227.1(c) (”A motion for post-trial relief may
not be filed to orders disposing of preliminary objections, motions for
judgment on the pleadings or for summary judgment, motions relating to
discovery or other proceedings which do not constitute a trial.”).

                                           -3-
J-A01038-20


          (2) if, after the completion of discovery relevant to the
          motion, including the production of expert reports, an
          adverse party who will bear the burden of proof at trial has
          failed to produce evidence of facts essential to the cause of
          action or defense which in a jury trial would require the
          issues to be submitted to a jury.

Pa.R.C.P. 1035.2.

          Our standard of review of an appeal from an order granting
          summary judgment is well settled: Summary judgment
          may be granted only in the clearest of cases where the
          record shows that there are no genuine issues of material
          fact and also demonstrates that the moving party is entitled
          to judgment as a matter of law. Whether there is a genuine
          issue of material fact is a question of law, and therefore our
          standard of review is de novo and our scope of review is
          plenary. When reviewing a grant of summary judgment, we
          must examine the record in a light most favorable to the
          non-moving party.

       Newell v. Montana West, Inc., 154 A.3d 819, 821–22 (Pa.
       Super. 2017) (citations and internal quotation marks omitted).

Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 100 (Pa. Super.

2017).

       Appellant only challenges the grant of summary judgment on his breach

of contract claim, not his claims for breach of fiduciary duty or conversion.

Appellant’s Brief at 6.3

____________________________________________


3 Although Appellant’s statement of questions involved pursuant to Pa.R.A.P.
2116 enumerates two appellate claims, the argument section of his brief
contains no divisions, in violation of Pa.R.A.P. 2119(a), which mandates that
“argument shall be divided into as many parts as there are questions to be
argued.” Although we have chosen to apply our rules liberally, we admonish
Appellant and, more importantly, his counsel, and we remind them of the
following:




                                           -4-
J-A01038-20



       “The necessary material facts that must be alleged for [a cause of action

for breach of contract] are simple:            there was a contract, the defendant

breached it, and plaintiff[] suffered damages from the breach.” McShea v.

City of Philadelphia, 995 A.2d 334, 340 (Pa. 2010).

       Appellant contends that the contract at the center of this cause of action

can be inferred from the parties’ actions. Appellant’s Brief at 6.

       Before a contract can be found, all of the essential elements of the
       contract must exist.     Therefore, in determining whether an
       agreement is enforceable, we must examine whether both parties
       have manifested an intent to be bound by the terms of the
       agreement, whether the terms are sufficiently definite, and
       whether consideration existed. If all three of these elements exist,
       the agreement shall be considered valid and binding. Burkett v.
       Allstate Insurance Co., 368 Pa.Super. 600, 534 A.2d 819
       (1987), vacated on other grounds, 520 Pa. 94, 552 A.2d 1036
       (1988). Furthermore, in the case of a disputed oral contract, what
       was said and done by the parties, as well as what was intended
       by what was said and done by the parties, are questions of fact to
       be resolved by the trier of fact . . . Solomon v. Luria, 213
       Pa.Super. 87, 246 A.2d 435 (1968). “The burden is on the plaintiff
       to prove by a preponderance of the evidence the existence of the
       contract to which the defendant is a party.” Viso v. Werner, 471
       Pa. 42, 46, 369 A.2d 1185, 1187 (1977).

Johnston the Florist, Inc. v. TEDCO Construction Corp., 657 A.2d 511,

516 (Pa. Super. 1995) (en banc).

____________________________________________


       The briefing requirements scrupulously delineated in our appellate
       rules are not mere trifling matters of stylistic preference; rather,
       they represent a studied determination by our Court and its rules
       committee of the most efficacious manner by which appellate
       review may be conducted so that a litigant’s right to judicial review
       as guaranteed by Article V, Section 9 of our Commonwealth’s
       Constitution may be properly exercised.

Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011).

                                           -5-
J-A01038-20



     In the current case, the trial court interpreted the breach of contract

cause of action in Appellant’s third amended complaint as arising only from a

breach of the power of attorney. We disagree. The third amended complaint

also alleges the existence and breach of a non-written contract. The facts

section of the third amended complaint avers that the parties had an

“agreement” that Appellee would “use [Appellant]’s money appropriately for

house maintenance and wedding expenses.”          Third Amended Complaint,

3/21/2017, at ¶ 17.    The facts section continued that Appellee “accepted

$55,000.00 in addition while living rent free and agreed to use the money to

pay for wedding expenses for the pending marriage.” Id. at ¶ 19. Count III

of the third amended complaint, the breach of contract claim, incorporated

these facts. Id. at ¶ 38. That count continues:

     41. [Appellant] entrusted [Appellee] with $55,000.00 to pay for
     expenditure towards their pending wedding as well as additional
     money for his home, for upkeep, maintenance, utility bills and
     necessary repairs in exchange for living rent free in [Appellant]’s
     home. . . .

     43. . . . [Appellee] has breached her promise to use the money as
     agreed between the parties and not to steal it.

Id. at ¶¶ 41, 43. The allegations in Appellant’s complaint were supplemented

by his deposition, where he testified: “[Appellee] was responsible to ensure

that the moneys I set aside for the household bills, mortgage, maintenance,

that they were being paid timely.” Appellant’s Deposition at 36.

     If all of Appellant’s allegations are believed, then he would have

established a contract.   Specifically, he claimed that the parties made



                                    -6-
J-A01038-20



promises that manifested their intent to be bound, with the sufficiently definite

terms that Appellant would give Appellee money for her to pay for household

upkeep and wedding expenses, and Appellee could live rent-free in Appellant’s

home as consideration. See Johnston, 657 A.2d at 516; see also Appellant’s

Deposition at 36; Third Amended Complaint, 3/21/2017, at ¶¶ 17, 19, 41, 43.

      As this agreement was a non-written contract, “what was said and done

by the parties, as well as what was intended by what was said and done by

the parties, are questions of fact to be resolved by the trier of fact[.]”

Johnston, 657 A.2d at 516; see also GMH Associates, Inc. v. Prudential

Realty Group, 752 A.2d 889, 898 (Pa. Super. 2000) (“In the case of a

disputed oral contract, what was said and done by the parties as well as what

was intended by what was said and done by them are questions of fact.”);

Rader v. Palletz, 51 A.2d 344, 346 (Pa. Super. 1947) (“Where the evidence

is conflicting, the determination whether a contract existed and what its terms

were is for the jury.”).   Accordingly, summary judgment should have only

been granted if there were no genuine issues of material fact to be submitted

to a jury. Pa.R.C.P. 1035.2; Reason, 169 A.3d at 100.

      In her answer to the third amended complaint, Appellee provided the

following responses to the above-quoted paragraphs from said complaint:

      17. The allegations in this paragraph are conclusions of law to
      which no answer is required. To the extent an answer is required,
      these allegations are denied and strict proof is demanded at the
      time of trial, if material.
      ...



                                      -7-
J-A01038-20


       19. Admitted in part, denied in part. [Appellee] admits that she
       did not pay rent during this time. All other allegations are denied.
       By way of further response, [Appellee] states that she was not
       given money to pay for wedding expenses, nor agreed to use any
       money to pay for wedding expenses.
       ...

       38.    No response necessary.
       ...

       41.    Denied.
       ...

       43. The allegations in this paragraph are conclusions of law to
       which no answer is required. To the extent an answer is required,
       these allegations are denied and strict proof is demanded at the
       time of trial, if material.

Appellee’s Answer to Appellant’s Third Amended Complaint, 5/24/2017, at 5,

7-8 ¶¶ 17, 19, 38, 41, 43.4 Given that Appellee has denied all of Appellant’s

relevant factual assertions,5 there are genuine issues of material fact in this

case that should have been resolved by a trier of fact.       Pa.R.C.P. 1035.2;

Johnston, 657 A.2d at 516; Reason, 169 A.3d at 100. Ergo, the trial court

erred by granting summary judgment. Pa.R.C.P. 1035.2.

       As for Appellant’s second appellate challenge that the trial court should

have applied a four-year statute of limitations to his claim, Appellant’s Brief
____________________________________________


4Pursuant to our review of the record, we find no deposition of Appellee nor
any exhibits submitted by Appellee. Consequently, we have no evidence from
Appellee to review and can only refer to her answer to the third amended
complaint to discern her factual allegations.
5 However, we note that Appellee’s answer to paragraph 41 of the third
amended complaint merely stated, “Denied”, Appellee’s Answer to Appellant’s
Third Amended Complaint, 5/24/2017, at 7 ¶ 41, and that “[g]eneral denials
constitute admissions where—like here—specific denials are required. See
Pa.R.C.P. No. 1029(b).” Bank of America, N.A. v. Gibson, 102 A.3d 462,
466–67 (Pa. Super. 2014).

                                           -8-
J-A01038-20



at 7 (citing 42 Pa.C.S. § 5525(a)(8)), we observe that the trial court did not

grant summary judgment on the breach of contract claim on the basis of the

statute of limitations.   Trial Court Opinion, filed June 27, 2019, at 22-25.

Hence, we need not address this claim. However, in order to avoid having to

address this issue as part of a potential subsequent appeal, we first observe

that, for the other two causes of action, the trial court concluded that the

statute of limitations began to accrue by September 2013.            Trial Court

Opinion, filed June 27, 2019, at 18, 20. As Appellant does not appeal the

other summary judgment and non-suit on these two other claims, he must

thereby agree that this date is correct. “The statute of limitations for a breach

of contract claim is four years.” Steiner v. Markel, 968 A.2d 1253, 1255 n.5

(Pa. 2009) (citing 42 Pa.C.S. § 5525). Four years after September 2013 was

September 2017.        Appellant commenced this action by complaint on

August 23, 2016. Thus, the statute of limitations had not run by the time

Appellant initiated this action.

      For the reasons set forth above, we reverse the grant of summary

judgment as to Appellant’s cause of action for breach of contract only. All

other rulings of the trial court remain in effect.     We remand for further

proceedings consistent with this decision.

      Grant of summary judgment on breach of contract claim reversed. All

other rulings affirmed. Case remanded. Jurisdiction relinquished.

Judge Murray joins the memorandum

Judge Nichols notes her dissent.

                                      -9-
J-A01038-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/20




                          - 10 -
