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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                            Appellees                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.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 17, 2015

        Professional Sales, Inc. appeals from the order entered October 15,

2014, granting the motion for judgment on the pleadings filed by (1) the

Estate of Joseph S. Brehaut, C. Christopher Moore, Jr. a/k/a Charles C.

Moore, Jr., executor; (2) C. Christopher Moore, Jr. a/k/a Charles C. Moore,

Jr., individually, and (3) Joseph S. Brehaut and C. Christopher Moore, Jr.,



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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partnership t/d/b/a Moll’s Garage (collectively, Appellees). We reverse and

remand.

       Michael Haber is the Vice President of Professional Sales, Inc.

(Appellant).1     On December 28, 2013, Mr. Haber arranged to meet Mr.

Moore to discuss the purchase of a rare, 1991 Ferrari F40 automobile owned

by Mr. Brehaut.       On the day of the meeting, Mr. Brehaut passed away.

Nevertheless, Mr. Moore advised Mr. Haber that he was the executor of Mr.

Brehaut’s estate. Mr. Haber expressed Appellant’s interest in buying the car.

       Mr. Haber and Mr. Moore spoke again on December 31, 2013, and

arranged another meeting for January 1, 2014.          At the meeting, they

discussed an agreement to purchase the car. Mr. Moore stated he needed to

discuss the agreement with others involved with the estate.      A few days

later, Mr. Haber and Mr. Moore spoke yet again.       Mr. Moore advised Mr.

Haber that the estate wanted to sell the car for eight hundred thousand

dollars ($800,000.00).

       On January 6, 2014, Mr. Haber brought a mechanic to inspect the

Ferrari. Following the inspection, Mr. Haber and Mr. Moore orally agreed to

the sale of the car for the asking price.        The mechanic witnessed the

agreement. Mr. Moore indicated that a transfer of money could not occur


____________________________________________


1
  In light of the procedural posture of the case, this background is derived
solely from the averments in Appellant’s amended complaint.



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until after he discussed the matter with the estate lawyer. Mr. Moore also

advised Mr. Haber that there remained an outstanding loan against the car.

        Later on January 6, 2014, Craig Prutzman of Tri-County Federal Credit

Union called Mr. Haber and advised him that the amount needed to satisfy

the outstanding loan was seventy-five thousand five hundred fifty-four and

30/100 dollars ($75,554.30). Mr. Haber made arrangements to pay off the

loan.

        On January 10, 2014, Mr. Haber was contacted by a broker who

offered to sell Mr. Haber a 1991 Ferrari F40. Due to the rarity of this specific

car, Mr. Haber knew that this was the same car that he had agreed to

purchase from Mr. Moore.

        Mr. Haber immediately called Mr. Moore.       Mr. Moore said, “You’re

going to be pissed at me.” Amended Complaint at ¶ 70. Mr. Moore then

advised Mr. Haber that he had sold the car to someone else for more money.

During their conversation, Mr. Moore acknowledged that they had had an

agreement.

        Appellant commenced this action by complaint on January 17, 2014,

later amended, alleging breach of contract.2 Appellees filed an answer with



____________________________________________


2
  Additional claims for specific performance and tortious interference with
contractual relationships were withdrawn.




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new matter, asserting the Statute of Frauds provision of the Pennsylvania

Commercial Code, 13 Pa.C.S. § 2201.3

       Thereafter, Appellees filed a motion for judgment on the pleadings,

and Appellant timely responded.           In October 2014, the trial court granted

Appellees’ motion and judgment was entered on their behalf.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

       Appellant contends the trial court erred in granting Appellees’ motion

for judgment on the pleadings.           See Appellant’s Brief at 3.   According to

Appellant, the Statute of Frauds is relevant to Mr. Haber’s alleged agreement

with Mr. Moore, but Appellant argues that his well-pleaded allegations, if

proven, would satisfy an exception to the general rule, citing in support 13

Pa.C.S. § 2201(c)(2). We agree.

       Because a motion for judgment on the pleadings is in the nature
       of a demurrer, the trial court must accept all of the well pleaded
       allegations of the party opposing the motion as true, while only
       those facts specifically admitted by the party opposing the
       motion may be considered against him. Furthermore, the court
       may consider only the pleadings themselves and any documents
       properly attached thereto in reaching its decision. In order 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.


____________________________________________


3
  Appellant did not reply to Appellees’ new matter. However, Appellees’ new
matter did not include a notice to defend nor was it endorsed with a notice
to plead. See Pa.R.C.P. 1026.



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Keil v. Good, 356 A.2d 768, 769 (Pa. 1976) (internal quotation marks

omitted). On appeal, we review the trial court’s decision for a clear error of

law and consider whether facts disclosed by the pleadings should be tried

before a fact finder. See Consolidation Coal Co. v. White, 875 A.2d 318,

325 (Pa. Super. 2005).

      The Pennsylvania Statute of Frauds requires a writing indicating the

terms of an oral agreement so there exists “no serious possibility of

consummating fraud by its enforcement.”        Keil, 356 A.2d at 771.     The

general rule is:

      Except as otherwise provided in this section a contract for the
      sale of goods for the price of $500 or more is not enforceable by
      way of action or defense unless there is some writing sufficient
      to indicate that a contract for sale has been made between the
      parties and signed by the party against whom enforcement is
      sought or by his authorized agent or broker. A writing is not
      insufficient because it omits or incorrectly states a term agreed
      upon but the contract is not enforceable under this subsection
      beyond the quantity of goods shown in such writing.

13 Pa.C.S. § 2201(a). There are exceptions to the general rule, including

the following:

      A contract which does not satisfy the requirements of subsection
      (a) but which is valid in other respects is enforceable:

      …

          (2) if the party against whom enforcement is sought
          admits in his pleading, testimony or otherwise in court that
          a contract for sale was made, but the contract is not
          enforceable under this provision beyond the quantity of
          goods admitted[.]

13 Pa.C.S. § 2201(c)(2).

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     Here, the Statute of Frauds clearly applies. At issue is the sale of a

rare automobile valued well above the $500 threshold established by the

general rule. See 13 Pa.C.S. § 2201(a). However, according to Appellant’s

amended complaint, (1) Mr. Moore admitted the existence of an agreement

and (2) there was an eyewitness to the agreement.             See Amended

Complaint at ¶¶ 54, 55. We must accept these allegations as true.       Keil,

356 A.2d at 769. If Appellant can prove Mr. Moore’s admission that an oral

contract for the sale of the 1991 Ferrari F40 was made, then Appellant will

establish an exception to the Statute of Frauds.         See 13 Pa.C.S. §

2201(c)(2).   Accordingly, Appellees were not entitled to judgment on the

pleadings. See Consolidation Coal Co., 875 A.2d at 325.

     The trial court dismissed Appellant’s arguments, noting factual

distinctions between this case and Keil.     See Trial Court Opinion at 5-6

(observing that the Keil plaintiff’s pleadings referenced the existence of a

writing that would, if proven, satisfy the Statute of Frauds); Keil, 356 A.2d

at 771.   We agree with the trial court’s conclusion that Appellant cannot

meet the requirements of the general rule.    Id. at 6. However, the court

failed to examine the relevant exception to the general rule. See 13 Pa.C.S.

§ 2201(c)(2).   In our view, Appellant’s pleadings frame a factual issue

worthy of development.

     Accordingly, we reverse the order of the trial court and remand for

further proceedings.


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     Order reversed. Case Remanded. Jurisdiction relinquished.

     Judge Strassburger files a concurring memorandum in which President

Judge Emeritus Bender joins.

     Judge Jenkins files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




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