J-A22024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN F. TORNESE AND                        :     IN THE SUPERIOR COURT OF
J&P ENTERPRISES,                           :          PENNSYLVANIA
                                           :
                         Appellants        :
                                           :
             v.                            :
                                           :
WILSON F. CABRERA-MARTINEZ,                :
                                           :
                         Appellee          :     No. 172 MDA 2014


             Appeal from the Order Entered December 27, 2013,
              In the Court of Common Pleas of Luzerne County,
                      Civil Division, at No. 2013-10204.


BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 08, 2014

      John   F.    Tornese   (“Tornese”)   and   J&P   Enterprises   (collectively

“Appellants”), appeal the trial court’s order granting preliminary objections

in the nature of a demurrer filed by Appellee, Wilson F. Cabrera-Martinez

(“Cabrera-Martinez”). We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            On August 28, 2013, [Appellants] filed a Complaint against
      [Cabrera-Martinez].    The Complaint was premised upon an
      alleged contract between . . . J&P Enterprises, and Wendy
      Almanzar, the wife of [Cabrera-Martinez]. On October 18, 2013,
      [Cabrera-Martinez] filed Preliminary Objections to [Appellants’]
      Complaint. On October 28, 2013, [Appellants] responded to
      [Cabrera-Martinez’s] original Preliminary Objections by filing an
      Amended Complaint. [Appellants’] Amended Complaint contains
      two counts, one for tortious interference with a contract and the

__________________
*Former Justice specially assigned to the Superior Court.
J-A22024-14



      other for terroristic threats. In response thereto, [Cabrera-
      Martinez] filed a second set of Preliminary Objections.
      [Appellants] did not file a Second Amended Complaint, choosing
      to rely on the Amended Complaint they filed on October 28,
      2013, and filing the identical brief in opposition to the
      preliminary objections that [they] filed previously without
      referencing the new preliminary objections.   The Court, on
      December 20, 2013, reviewed the matter, granted the
      Preliminary Objections and Dismissed [Appellants’] Complaint
      against [Cabrera-Martinez].[1]

            [Appellants’] Amended Complaint is premised on a claim
      that . . . J & P Enterprises and Wendy Almanzar, the wife of
      [Cabrera-Martinez], entered into a contract for the delivery of an
      ATM machine and one lighted sign owned by [J&P Enterprises],
      but to be delivered to [Cabrera-Martinez’s] business [Harlem
      World].

Trial Court Opinion, 3/21/14, at 1-2.

      Appellants filed a timely notice of appeal from the trial court’s order

dismissing Appellants’ amended complaint.           The trial court ordered a

Pa.R.A.P. 1925(b) statement and Appellants timely complied.

      Appellants present the following issue for our review:

      Whether the lower court erred by sustaining [Cabrera-
      Martinez’s] preliminary objections in the nature of a demurrer
      and dismissing all of [Appellants’] claims, when [Appellants
      have] adequately pled all of [their] claims, including conversion,
      tortious interference with contractual relations, and intentional
      infliction of emotional distress?

Appellants’ Brief at 9 (full capitalization omitted).




1
 The court’s order granting Cabrera-Martinez’s preliminary objections was
entered on December 27, 2013.

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      We must first consider whether Appellants’ claims are properly before

this Court. Although Appellants present a single issue, the claim consists of

three distinct questions: 1) whether Appellants adequately pled a claim of

conversion; 2) whether Appellants adequately pled a claim of tortious

interference   with   contractual   relations;   and   3)   whether   Appellants

adequately pled a claim of intentional infliction of emotional distress.

Appellants’ Brief at 9.   Indeed, the argument section of Appellants’ brief

consists of three subparts, each providing argument in support of these

three individual claims. Id. at 12-23.

      As mentioned previously, however, Appellants’ amended complaint

contained two counts: one for tortious interference with a contract and the

second for terroristic threats. Amended Complaint, 10/28/13, at 1-4. Thus,

the claims raised in Appellants’ appellate brief for conversion2 and intentional

infliction of emotional distress, were not raised in Appellants’ amended

complaint, and thus are not properly before this Court for review.          See




2
  Appellants assert that although they raised the issue of conversion in the
body of the amended complaint, the trial court “completely ignored” their
claim of conversion. Appellants’ Brief at 13. As noted, Appellants’ amended
complaint included two counts: Count One - Tortious Interference [With]
Contract; and Count Two - Terroristic Threats.         Amended Complaint,
10/28/13, at 1-4. The trial court did not have a duty to scour the complaint
and uncover all potential claims therein. Steiner v. Markel, 968 A.2d
1253, 1258 (Pa. 2009). Accordingly, the trial court properly declined to
address the alleged claim of conversion.

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J-A22024-14



Pa.R.A.P. 302(a) (Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal).

      Furthermore, Appellants fail to present as an issue in their appellate

brief the trial court’s ruling on the averment of terroristic threats.

Accordingly, the only issue properly before this Court for review is

Appellants’ allegation that they adequately set forth a claim of tortious

interference with contractual relations and, therefore, the trial court erred in

granting the preliminary objections.3

      Appellants maintain that they have adequately pled a claim for tortious

interference with actual contractual relations, establishing each of the four

requisite elements.4   Appellants’ Brief at 14-19.   Thus, Appellants contend

the trial court erred in granting the preliminary objections and dismissing

Appellants’ amended complaint. Id.




3
  We note that although Appellants fail to specifically identify the claim for
intentional interference with an existing contractual relation as an issue they
were pursuing on appeal, we conclude that in reading the Pa.R.A.P. 1925(b)
statement, the claim is fairly pled. Plaintiffs’ Concise Statement of Matters
Complained of on Appeal, 2/12/14, at 1-2. Thus, we decline to find this
issue waived. See Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011)
(quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)) (holding
“[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.”).
4
  See Phillips v. Selig, 959 A.2d 420 (Pa. Super. 2008) for discussion of
claims of interference with prospective contractual relations versus claims of
interference with existing contractual relations.

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J-A22024-14



      Our standard of review of an appeal from the grant of preliminary

objections is as follows:

             [O]ur standard of review of an order of the trial court
      overruling or granting preliminary objections is to determine
      whether the trial court committed an error of law.        When
      considering the appropriateness of a ruling on preliminary
      objections, the appellate court must apply the same standard as
      the trial court.

             Preliminary objections in the nature of a demurrer test the
      legal sufficiency of the complaint. When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.      Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Discover Bank v. Stucka, 33 A.3d 82, 86 (Pa. Super. 2011).           It is well-

established that a plaintiff must provide sufficient factual averments in his or

her complaint to sustain a cause of action. Feingold v. Hendrzak, 15 A.3d

937, 942 (Pa. Super. 2011).        “Pennsylvania is a fact-pleading state; a

complaint must not only give the defendant notice of what the plaintiff’s

claim is and the grounds upon which it rests, but the complaint must also

formulate the issues by summarizing those facts essential to support the

claim.” Id. at 942.

      The elements necessary to a cause of action for interference with

existing contractual relations are as follows:


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J-A22024-14



    (1) the existence of a contractual relationship between the
     complainant and a third party;

    (2) an intent on the part of the defendant to harm the plaintiff by
     interfering with that contractual relationship;

    (3) the absence of privilege or justification on the part of the
     defendant; and

    (4) the occasioning of actual damage as a result of defendant’s
     conduct.

Phillips, 959 A.2d at 429 (Pa. Super. 2008).

      In an attempt to establish the first element, Appellants contend that

they have “clearly pled the existence of a contractual relation between the

complainant and a third party, satisfying prong one.” Appellants’ Brief at 17.

In support of this claim, Appellants cite to paragraph 5 of their amended

complaint, which provides:

      The Plaintiff, J & P Enterprises, entered into a contractual
      agreement with Wendy Almanzar for her placement and
      maintenance of an ATM terminal at Harlem World.

Id. Appellants’ citation to their claim in the amended complaint that there

was a contractual agreement with Wendy Almanzar, however, does not

establish that there was, in fact, a contractual agreement with Wendy

Almanzar.

      Rule 1019 of Pennsylvania Rules of Civil Procedure provides, in

relevant part, as follows:

      Rule 1019. Contents of Pleadings. General and Specific
      Averments


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J-A22024-14




                                     ***

      (h) When any claim or defense is based upon an agreement, the
      pleading shall state specifically if the agreement is oral or
      written.

            Note: If the agreement is in writing, it must be
            attached to the pleading. See subdivision (i) of this
            rule.

      (i) When any claim or defense is based upon a writing, the
      pleader shall attach a copy of the writing, or the material part
      thereof, but if the writing or copy is not accessible to the
      pleader, it is sufficient so to state, together with the reason, and
      to set forth the substance in writing.

Pa.R.C.P. 1019. Furthermore, “a contract implied in fact is a contract arising

when there is an agreement, but the parties’ intentions are inferred from

their conduct in light of the circumstances.” Rambo v. Greene, 906 A.2d

1232, 1236 (Pa. Super. 2006).

      Here, despite the claim being based on an agreement, Appellants have

failed to state whether the agreement was oral or written pursuant to

Pa.R.C.P. 1019(h). Furthermore, if the agreement was written, Appellants

failed to attach any such writing, or an explanation for its absence, to their

amended complaint pursuant to Pa.R.C.P. 1019(i).         Moreover, Appellants

failed to sufficiently plead or establish that there was an implied contract. In

fact, Appellants have provided no details regarding the alleged arrangement,

such as the date the ATM and sign were placed at Harlem World, the

duration of the agreement, and any arrangement for payment between the


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J-A22024-14



parties. As such, Appellants have failed to sufficiently plead the existence of

a contractual relationship between the parties. See Foster v. UPMC South

Side Hosp., 2 A.3d 655, 666 (Pa. Super. 2010) (trial court properly granted

preliminary objections in the nature of a demurrer where plaintiff failed to

establish that a contract existed for purposes of a claim of intentional

interference with a contract because the complaint failed to provide a

scintilla of information regarding the purported contractual relationship).

Accordingly, we conclude that Appellants failed to establish the first prong

necessary to a claim of interference with actual contractual relations.

      Additionally, we note that Appellants allege that the contractual

relationship was between Appellants and Wendy Almanzar (“Almanzar”) and

maintain that “[Appellants] entered into a contractual agreement with

Wendy Almanzar for her placement and maintenance of an ATM terminal at

Harlem World.” Appellants’ Brief at 15; Amended Complaint, 10/28/13, at ¶

5.   Furthermore, Appellants assert that Almanzar is married to Cabrera-

Martinez and advised Appellants that she had authority to place the ATM at

Harlem World. Id.; Amended Complaint, ¶¶ 5, 6. Appellants maintain that,

at the direction of Almanzar, Appellants placed the ATM at Harlem World.

Id.; Amended Complaint, at ¶ 7.

      There is no allegation in the amended complaint or evidence of record

that establishes Almanzar’s relationship to Cabrera-Martinez and Harlem




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J-A22024-14



World other than the allegation that she was married to Cabrera-Martinez.

Despite Appellants’ allegation that Almanzar advised Appellants that she had

authority to have the ATM placed at Harlem World, there is no claim or

evidence of record that she did, in fact, have authority to act on Harlem

World’s behalf.

      However, even presuming that Almanzar had authority to allow J&P

Enterprises to place the ATM at Harlem World, it would not be unreasonable

to conclude that she was acting as agent for Harlem World.5 Followed to its

logical end, if Almanzar was acting as agent for Harlem World, there was no

third party as is required by the first element.   Appellants cannot have it

both ways: they cannot argue on one hand that Almanzar had authority on

behalf of Cabrera-Martinez and Harlem World to have the ATM placed there,

but then, on the other, argue that Almanzar was the third party with whom

they contracted and Cabrera-Martinez acting on Harlem World’s behalf

interfered with that contractual relationship.

      Next, Appellants assert that Cabrera-Martinez specifically intended to

harm the existing contractual relationship, thus satisfying prong two.

Appellant’s Brief at 17. Appellants claim that when they demanded return of

the ATM, Cabrera-Martinez refused to allow Appellants to retrieve the ATM.

Id. at 17. Additionally, Appellants argue that Cabrera-Martinez’s threat to


5
 Without details regarding the contract, it is impossible to determine in
what, if any, capacity Almanzar acted on behalf of Harlem World.

                                       -9-
J-A22024-14



shoot Tornese if he attempted to retrieve the ATM constituted “improper

conduct,” satisfying the third element. Id. at 19.

      This Court has provided the following guidance when analyzing the

second and third prongs of a claim for intentional interference with

contractual relations:

      The second element requires proof that the defendant acted ‘for
      the specific purpose of causing harm to the plaintiff.’ Phillips v.
      Selig, 959 A.2d 420, 429 (Pa. Super. 2008) (quoting Glenn v.
      Point Park College, 441 Pa. 474, 272 A.2d 895, 899 (1971)).
      The second element of this cause of action is closely intertwined
      with the third element, which requires a showing that Appellant’s
      actions were not privileged. See Restatement (Second) of Torts
      § 766. Thus, in order to succeed in a cause of action for tortious
      interference with a contract, a plaintiff must prove not only that
      a defendant acted intentionally to harm the plaintiff, but also
      that those actions were improper. In determining whether a
      defendant’s actions were improper, the trial court must take into
      account the following factors listed in Restatement (Second) of
      Torts section 767:

            (a) the nature of the actor’s conduct; (b) the actor’s
            motive; (c) the interests of the others with which the
            actor’s conduct interferes; (d) the interests sought to
            be advanced by the actor; (e) the social interests in
            protecting the freedom of action of the actor and the
            contractual interests of the other; (f) the proximity
            or remoteness of the actor’s conduct to the
            interference; and (g) the relations between the
            parties.

      Restatement (Second) of Torts § 767; see, e.g., Adler Barish
      Daniels Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d
      1175, 1184 (1978); Phillips, 959 A.2d at 429–30.

           Courts require a showing of both harm and improper
      conduct because we have recognized that some intentionally
      harmful conduct is done “at least in part for the purpose of


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J-A22024-14



      protecting some legitimate interest which conflicts with that of
      the plaintiff.” Phillips, 959 A.2d at 430.

Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923,

933-934 (Pa. Super. 2013).

      In the case sub judice, the trial court provided the following analysis

regarding these two prongs:

             A review of [Appellants’] Complaint discloses that
      [Appellants] have failed to state a claim for the intentional
      interference with a prospective contractual relation because
      Count 1 fails to contain a sufficient allegation of specific intent.
      Glenn [v. Point Park College], 272 A.2d [895,] 899 [(Pa.
      1971)]. [Appellants] do not plead any allegation that [Cabrera-
      Martinez] knew or had knowledge of any contractual relationship
      between [Appellants] and Wendy Almanzar.             There is no
      allegation that [Cabrera-Martinez] intended to cause harm to
      [Appellants]. The [Appellants] plead that there was harm but
      not that [Cabrera-Martinez] intended to harm [Appellants].

             The Supreme Court of Pennsylvania has held that in order
      to state a claim for tortious interference with a contract, there
      needs to be an allegation that [Cabrera-Martinez] acted with ‘the
      specific purpose of causing harm to the Plaintiffs. Glenn, 272
      A.2d 899 (“the wrong ordinarily requires conduct intended to
      interrupt negotiations or prevent the consummation of the
      contract”).’ . . . At most, [Appellants] plead, in paragraph 17,
      that the “conduct of [Cabrera-Martinez] in converting
      [Appellants’] property was intentional, willful, wanton and
      outrageous”, but this is insufficient to state a cause of action
      under this theory. In Glenn, the court ruled that even an
      allegation that the [d]efendant “intentionally, wrongfully, and
      maliciously . . . interfered with a prospective contractual
      relationship”[6] was insufficient because there was no allegation


6
   We note that Glenn involved an allegation of interference with
prospective contractual relationship wherein the case at hand involves a
claim of interference with existing contractual relationships. The analysis in
Glenn as to the second and third elements, however, is helpful and relevant

                                       -11-
J-A22024-14



      that the [d]efendant intended to cause harm to the [p]laintiffs.
      There is nothing in the pleading to suggest that [Cabrera-
      Martinez] intended to cause harm to [Appellants] or its business,
      even if harm was inevitable by the actions of [Cabrera-Martinez].
      Moreover, there is no allegation in the Amended Complaint
      regarding whether [Cabrera-Martinez’s] actions were made with
      or without “privilege or justification.”

Trial Court Opinion, 3/21/14, at 2-3.

      We agree with the trial court’s analysis. Here, there is no allegation

that Cabrera-Martinez acted with the intent to harm Appellants by interfering

with the alleged contractual relationship. In fact, it is unclear that Cabrera-

Martinez was even aware of the alleged contractual relationship. Appellants

have failed to allege that Cabrera-Martinez’s actions of refusing to allow

Appellants to retrieve the ATM were not privileged. The complaint as drafted

does not negate the existence of privilege on the part of Cabrera-Martinez.

Glenn, 272 A.2d at 900.        Indeed, as our Court has recognized, “some

intentionally harmful conduct is done ‘at least in part for the purpose of

protecting some legitimate interest which conflicts with that of the plaintiff.’”

Empire Trucking Co., Inc., 71 A.3d at 933-934.7



to our inquiry here as the second, third and fourth elements of both claims
are the same. See Phillips, 959 A.2d at 428-430 (outlining requirements
for allegations of interference with prospective contractual relations and
allegations of interference with existing contractual relations.)

7
  We make no ruling regarding Appellants’ claim that Cabrera-Martinez’s
conduct was not privileged and was improper when he threatened to shoot
Tornese. While such behavior, if true, would obviously be “improper,” we
note references to two “personal” visits by Tornese, and we decline to

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J-A22024-14



      As such, we conclude that Appellants have failed to satisfactorily plead

facts establishing the second and third prongs of the cause of action for

intentional interference with existing contractual relations. Accordingly, the

trial court properly granted Cabrera-Martinez’s preliminary objections in the

nature of a demurrer.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2014




speculate as to what may have occurred during these exchanges and fueled
subsequent interactions between the parties.          Furthermore, given our
conclusion that Appellants have failed to establish the first and second
elements of his claim, a decision regarding this allegation is not necessary to
the disposition of this case.

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