J-S19025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

XCBOB’S PARTS & ACCESSORIES, INC.,                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ED TUCKER DISTRIBUTING, INC.,
T/D/B/A TUCKER ROCKY,

                            Appellee                  No. 1389 MDA 2016


                 Appeal from the Order Entered August 8, 2016
                In the Court of Common Pleas of Snyder County
                     Civil Division at No(s): CV-0390-2015



BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 21, 2017

        Appellant, XCBOB’s Parts & Accessories, Inc. (“XCBOB”), appeals from

the August 8, 2016 order granting Appellee’s, Ed Tucker Distributing, Inc.,

t/d/b/a Tucker Rocky (“Tucker Rocky”), motion for summary judgment and

dismissing Appellant’s complaint with prejudice. We affirm.

        The parties were in a long-standing relationship based upon an oral

contract, whereby XCBOB, who sold motorcycle and ATV parts online,

bought these parts from Tucker Rocky, who is a distributor/manufacturer of




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S19025-17



these parts.1 Following Tucker Rocky’s refusal to allow XCBOB to purchase

its products in June of 2015, XCBOB filed suit, alleging a breach of contract

claim, a detrimental reliance/promissory estoppel claim, and demanding

judgment in excess of $50,000. Subsequently, Tucker Rocky filed a motion

for summary judgment, which was granted by the trial court.

       XCBOB filed this appeal, and now raises the following two issues for

our review:

       1. Whether the trial court erred as a matter of law when it
       granted [Tucker Rocky’s] [m]otion for [s]ummary [j]udgment on
       the basis that the parties’ contract was terminable at any time
       by either party?

       2. Whether the trial court erred as a matter of law when it
       granted [Tucker Rocky’s] [m]otion for [s]ummary [j]udgment on
       the count for promissory estoppel?

XCBOB’s brief at 7.2

       “Our scope of review of a trial court's order granting or denying
       summary judgment is plenary, and our standard of review is
       clear: the trial court's order will be reversed only where it is
____________________________________________


1
 The business arrangement existed from 2008 until 2015 with purchases by
XCBOB over that period totaling more than $1,720,000. See Trial Court
Opinion (TCO), 8/8/16, at 1.
2
  We note that in its brief, Tucker Rocky requests that XCBOB’s appeal be
dismissed because XCBOB’s brief was filed three days late even after this
Court had granted several extensions and provided new due dates. See
Pa.R.A.P. 2188 (“If an appellant fails to file his … brief … within the time
prescribed by these rules, or with the time as extended, an appellee may
move for dismissal of the matter.”). However, because Tucker Rocky failed
to allege prejudice, we decline to dismiss this appeal. See Stewart v.
Stewart, 745 A.2d 955, 956 (Pa. Super. 1999).



                                           -2-
J-S19025-17


        established that the court committed an error of law or abused
        its discretion.” Universal Health Services, Inc. v.
        Pennsylvania Property and Casualty Insurance Guaranty
        Assoc., 884 A.2d 889, 892 (Pa. Super. 2005) (citation omitted).

             The entry of summary judgment is proper whenever
             no genuine issue of any material fact exists as to a
             necessary element of the cause of action.        The
             moving party's right to summary judgment must be
             clear and free from doubt. We examine the record,
             which consists of all pleadings, as well as any
             depositions, answers to interrogatories, admissions,
             affidavits, and expert reports, in a light most
             favorable to the non-moving party, and we resolve
             all doubts as to the existence of a genuine issue of
             material fact against the moving party.

        LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962
        A.2d 639, 647 (Pa. 2009) (citations omitted).
Krapf v. St. Luke’s Hospital, 4 A.3d 642, 649 (Pa. Super. 2010), appeal

denied, 34 A.3d 831 (Pa. 2011).

        We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough opinion authored by the Honorable Michael

T. Hudock of the Court of Common Pleas of Snyder County, dated August 8,

2016.    We conclude that Judge Hudock’s well-reasoned opinion accurately

disposes of the two issues presented by XCBOB on appeal and we discern no

abuse of discretion or error of law. See TCO at 5-6. Accordingly, we adopt

Judge Hudock’s opinion as our own for purposes of further appellate review

and affirm the order from which this appeal arose.




                                     -3-
J-S19025-17



     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




                          -4-
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 XCBOB, INC.,                                                     JN THE COURT OF COMMON PLEAS
                Plaintiff                                          OF THE 1 in' JUDICI1\L DISTRJCT
                                                                        OF PENNSYLVANIA
                                                                     SNYDER COUNTY BRANCH
                v.

 ED TUCKER DISTRIBUTING, JNC.                                                     CIVIL ACTION - LA\YI
 t/d/b/a TUCKER ROCKY,
             Defendant                                                               NO. CV -390-2015


                                                 OPINION

 HUDOCK, P .J,, At1gnst 8, 2016

        Plaintiff, n corporation, is an on line seller of motorcycle and 1\ TV parts. Defendant,                                  a

corporation, is a distributer/ manufacturer of motorcycle and ATV parts. Plaintiff applied onlinc to

become a dealer of Defendant, Tucker Rocky parts. Contained in the application were photos of a

physical storefront out of which Plaintiff proposed to operate. Plaintiff asserts, after its application,

it was visited by one of Defendant's regional sale representatives . .At nil times, Plaintiff operated its

business out of its owner's home. Plaintiff asserts it entered into an oral distribution contract with

Defendnnr wherein Plaintiff purchased products nt discounted prices. Plaintiff ordered parts from

the Defendant    from 2008 until 2015.       Plaintiff's purchases in that time totaled                           in excess of

S1 ,720,000.00. Beginning in February 2015, Defendant raised concerns with Plaintiffs overall sales

and lack of store front. Plaintiff alleges, on June 26, 2015 Defendant barred Plaintiff from online

ordering of the Defendant's products,   Plaintiff raises: a) J\ breach of contract claim allegu1g an oral

contract that required mutual consent to terminate; b) A detrimental Reliance/Promissory                               Estoppcl




                                                         1
 claim, aUeging Plaintiff relied on Defendant's   promise to supply the products and Plaintiff suffered a

 loss as result.    Plainti ff demands judgment in an amount in excess of $50,000.00.

            Defendant filed nn Answer with New Matter in which it admits to a business relationship

 with Plaintiff but specifically denies it barred Plaintiff from onlinc purchases. Defendant raises the

 defense of Fraud in the Inducement because the Plaintiff operated out of its owner's home and

 Unjust Enrichment because Plaintiff received discounts to which it was not entitled.

           Defendant has filed a Motion for Summary Judgment in which it requests the entry of

 judgment in its favor anti against the Plaintiff.        For reasons explained herein, we will grant

 Defendant's Motion.

           "After the relevant pleadings arc closed, but within such time as not to unreasonably delay

 trial, nn}' party mny move for summary judgment in whole or in part as a matter of law whenever

there is no genuine of any material fact as to n necessary clement of the cause of action or defense

which could be established by additional discovery ... " 42 Pa.R.C.P. No. 1035.2(1). " ... [A] motion

for summnry judgment is based on an evidential')' record which entitles the moving party to

judgment as a matter of law." Note. "In considering the merits of a motion for summnry judgment,

a court views the record in the Hght most favorable to the non-moving pnrty, and nil doubts as to the

existence of a genuine issue of material fact must be resolved against the moving pnrty. Finally, the

court   Jnll}'   grant summnry judgment only when the right to such judgment is clear and free from

doubt." S111ords n: T-ladeys/lilleJJ1s. Co., 883 A.2d 562, 566-67 (Pn.2005)(citations omitted).

          The record supporting Defendant's Motion consists of the pleadings filed by both parties

and "deemed admissions." Defendant attached to the Motion a cop)' of "Defendant's First Request

for Admissions Addressed to Plaintiff." [Sec, Defendant's Motion for Summary Judgment, Exhibit




                                                     2
         Requests for admissions are governed by Pa.R.C.P. No.4014 which states in pertinent part:

"A party may serve upon nn>' party a written request for admission ... of the truth of any matters

within the scope of Rules 4003.1 and 4003.5 ... The matter is deemed admitted unless within thirty

days after service of the requests, or within such shorter or longer time as the court may allow, the

party to whom the request is directed serves upon the party requesting the admission an answer

verified by the party or objections, signed by the party or by the party's attorney."          42 Pn.R.C.P. No.

4014(a), (b). "Any matter admitted under this rule is conclusively established unless the court on

motion permits withdrawal or amendment of the admission."              42 Pa.R.C.P. No. 4014(d).1

          lu the instant motion, Defendant avers that as Plaintiff has foiled to admit, deny or object

within thirty (30) days after the date of service, the Requests            for .Admissions arc now deemed

admitted pursuant to Pn.R.Civ.P. 4014.             To the extent that Plaintiff has neither answered            nor

objected to the Request for Admissions attached to the Motion, the factual statements                   set forth

therein arc deemed admitted by operation of Rule 4014. Accordingly, Plaintiff has admitted                      the

following pertaining to the Credit Application submitted by Plaintiff to the Defendant:                      a) The

photographs attached arc authentic; b) the photographs are an authentic pictures of a sign that was

attached to a brick and      mortar    building; c) Plaintiff submitted     the photos to Tucker Rocky; d)

Plaintiff filled out the document attached.

         Defendant asserts that Plaintiff bore the burden of proving the breach of contract, and that

to avoid entJ)' of summary judgment, it could not simply rely npon its pleadings. See Pn.R.C.P.

1035.2(2) (provMjng for summa1y judgment if "an adverse party who will bear the burden of proof

at trial has foiled to produce evidence of facts essential to the cause of action or defense"). J t alleges

that Plain tiff offered no proof of   1\   contractual relationship with Defendant.




' The Court would note Plaintiff references their Intention to serve Defendant Answer to the Discovery. No
motions were filed with the Court, nor were the purported Answers filed for the Court's review.

                                                         3
        111e Superior Court held in   Lackner v. Glosser, 892 A2d 21, 24 (Pa.Super. 2006), in order

"[r]o maintain a cause of action in breach of contract, a plaintiff must establish: (1) the existence of n

contract, including its essential terms; (2) a breach of a duty imposed by the contract; nnd (3)

resulting damages." Plaintiff has met the initial burden of proving a contractual relationship with

Defendant. Plaintiff has pleaded a contract wherein Plaintiff distributed principally Defendant's

products, and provided evidence of those products and ngreed prices. Plaintiff has asserted

Defendant's duty to provide the products at the proposed prices, and alleged damages for the Joss of

th~ distribution contract,

        Defendant argues that Plaintiff's claims are barred by the Statute of Frauds under the

Uniform Commercial Code 13 Pa.C.S. §2201 (a). Plaintiff asserts the parties' oral contract was

documented by subsequent "emails and written sheets". Sei• Exhibit A of Plaintiffs Answer to the

Motion for Summary Judgment. \'<'hethcr these writings are found to be sufficient to satisfy the

UCC or in the alternative represent     n   writing confirming a contract between merchants rests on

factual determinations not yet in the record.


       Defendant asserts the defense of fraud in the inducement in response to Plaintiff's breach of

contract claim. Defendant avers the deemed admissions "essentially admit" their claim of fraud in

the inducement. The clements of fraud in the inducement arc:


       (1) 1\ representation;

       (2) which is material to the transaction at hand;

       (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;

       (4) with the intent of misleading another into relying on it;

       (S) justifiable reliance on the misrepresentation; and,

       (6) the resulting injmy was proximately caused by the reliance.

                                                    4
             Bortz v. Noo11, 556 J>a. 489, 729 A2d 555, 560 (Pa, 1999).


 The Court cannot agree that through the deemed admissions and pleadings alone Defendant has

 proven Fraud in the T nducement. Plaintiff admits to filling out the application and providing the

 photogrnphs.      The Court cannot determine whether the alleged representation of a "brick and

 mortar" storefront wns material to the transaction given the parties continuing business relationship

 for years in absence of n storefront. Nor can the Court determine the Plaintiff's intent at this

 juncture.

         Defendant argues that, if the contract exists, it was terminable n twill of either party pursuant

 to 13 Pn.C.S. §2309(b) which reads: (b) Duration ~(provision for SN1w.r.riva pc,for1J1a11ct1s. \Vhere the

contract provides for successive performances but is indefinite in duration it is valid for a reasonable

time but unless otherwise agreed may be terminated at any time by either party. The Court must

agree that any contract that may .havc existed between the parties did not express its duration and

was therefore terminable by either party at any time. The Court gmnts the motion for :mmmary

judgment in favor of Defendant on this basis. Plaintiff alleges Defendant's breach was that act of its

termination of the contract. Absent a specific ten:n, the parties alleged contract was terminable at

will of either party. Plaintiff's claim for breach of contract is dismissed. The Court will not determine

whether the contract foils for its vagueness as this determination is unnecessary.

        Plaintiffs next claim is for promissory            estoppel. 11)e doctrine of promissory cstoppel

permits a claimant to enforce a promise in the absence of consideration. Shor.111aker f). Co1m110111walth

B,mk, 700 A2d 1003 (Pa. Super. 1997).

                To maintain a promissory estoppcl action a claimant must aver the following
        elements: 11(1) the promiser made a promise that [it) should have reasonably expected would
        induce action or forbearance on the part of the promiscc; (2) the promisee actually took
        action or refrained from taking action in reliance on the promise; and (3) injustice can be
        avoided only by enforcing the promise." Id. at 1006; see aiso Crouse n: (ye/ops Iuduuries, 560 Pa.
        394, 403, 745 i\.2d 606, 611 (2000) (noting that clements of promissory cstoppcl claim
        sound in contract for purpose of determining applicable statute of limitations).

                                                       5
           Sullivan v, Charrwcll Inv. Partners, LP, 873 A2d 710, 717-718 (Pa. Super. Ct. 2005)



            Plaintiff avers   Defendant   promised     to allow   Plaintiff to purchase whatever amounts of

 Tucker Rocky products it wished to buy        at    discounted rates. In the Complaint, Plaintiff fails to aver

 that the Defendant should          have reasonably       expected the promise would induce action            or

 forbearance on the part of Plaintiff. Plaintiff docs not aver Defendant required the Plaintiff to stop

 using his other suppliers or even that the Defendant become the Plaintiff s principal supplier.

 Plaintiff does not aver that he cannot use other suppliers, and even concedes that now, it relics on

 other suppliers. Plaintiff has not pleaded an unavoidable injustice because of his necessity to use

 other suppliers.


          Therefore, Defendant's Motion for Summary Judgment is granted. Plaintiffs complaint is

dismissed with prejudice.


                                                       BY THE COURT:



                                                        /h., . l          1   r---    ,.;   I   .tJ . /   J
                                                         /l·l~!·~
                                                      JvIJCHAEL T. HUDOCK, P. J.

c:        J:unes L. Best, Esquire
          Scott N. Godcs, Esquire
          The Honornblc Louise 0. Knight, S.J.
          jcnna r\. Neidig, Esquire
          Plaintiff
          Defendant

c-copy:     'foe Honorable Michael H. Shelley, J.




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