J-A16027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

METAL BUILDING DIRECT, INC.                   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

RENNINGER CONSTRUCTION, INC.

                        Appellee                  No. 1214 WDA 2015


                    Appeal from the Order July 10, 2015
              In the Court of Common Pleas of Beaver County
                     Civil Division at No(s): 10948-2014

BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED DECEMBER 05, 2016

     Appellant, Metal Buildings Direct, Inc. (MBD), appeals from an order

entered on July 10, 2015 in the Civil Division of the Court of Common Pleas

of Beaver County that granted a motion for judgment on the pleadings in

favor of Renninger Construction, Inc. (Renninger). After careful review, we

vacate and remand.

     Based upon our review of the trial court’s opinion, MBD’s complaint

(and attachments thereto), Renninger’s answer and new matter, and MBD’s

reply to Renninger’s new matter, we summarize the facts as follows:

     [MBD is a Pennsylvania corporation with offices located in Beaver
     County. Renninger is a Pennsylvania corporation with offices
     located in Erie County. Larry Renninger, the owner of MBD,
     previously owned and operated Renninger and sold it to the
     present owners.]

     [MBD initiated this breach of contract action against Renninger
     by filing a writ of summons on June 23, 2014. In its complaint


*Retired Senior Judge assigned to the Superior Court.
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       filed on September 10, 2014, MBD sought payment for services
       allegedly provided to Renninger in 2010.] MBD [claimed] that
       beginning in 2009 and continuing into 2010, it provided services
       to Renninger by allowing Renninger to use its employees to
       perform work on various gas compressor construction projects.
       The alleged contract for these services was a verbal agreement
       between the two companies. MBD claim[ed] there was an
       ongoing arrangement between the companies, where the parties
       shared labor on an occasional basis. MBD charged Renninger for
       the services of its employees associated with a project in
       Washington County, Pennsylvania, by sending invoices dated
       May 15, 2010 through June 12, 2010. All of the invoices had
       payment terms [stating] “Payable Upon Receipt.” The invoice
       from May 15, 2010 also had a hand written note on it that asked
       for the payment to be made “ASAP.”[1] The total amount of the
       invoices was $60,288.80.          [MBD Complaint, 9/10/14,
       Attachments 1-5.]

       In its [a]nswer and [n]ew matter, Renninger admit[ed] that MBD
       provided labor on the Washington County project, but den[ied]
       that the invoices reflect the fair market value for the services.
       [Renninger Answer and New Matter, 10/3/14, at 1 ¶ 5.]
       Renninger also denie[d] that the parties ever agreed to specific
       terms and conditions for the labor, including the rate of $44.25
       per hour. [Id. at 1,2, and 4 ¶¶ 3, 5-9, and 19.] Renninger has
       pled that these were general laborers, and the fair market value
       for their services was $10.00 per hour. [Id. at 4 ¶¶ 17 and 20.
       Renninger also denied that the invoices accurately reflected the
       parties’ agreement and course of dealing. Id. at 2 ¶¶ 7-9.]

       Because of the dispute over the cost of these services,
       Renninger did not pay the invoices. Three years later, on April
       19, 2013, MBD’s counsel sent a letter to Renninger seeking
       payment. [MBD Complaint, 9/10/14, Attachment 6.] A week
       later, Renninger’s counsel responded [by] asking for more
       information, but did not affirm the bill or promise to pay the
       2010 invoices. [Id. at Attachment 7.]


____________________________________________


1
 The term “ASAP” is an acronym that commonly stands for “as soon as
possible.”



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        [Renninger moved for judgment on the pleadings on 11/21/14,
        arguing that the applicable four-year statute of limitations barred
        MBD’s breach of contract action. Renninger advanced two claims
        in support of its motion. First, Renninger alleged that the
        limitations period began to run on the date of the last invoice
        (i.e., June 12, 2010) and, therefore, it expired on June 12, 2014.
        Renninger also argued that nothing tolled the limitations period
        because Renninger neither promised to make payments or
        acknowledged the debt. In response, MBD argued that nothing
        triggered the limitations period until April 19, 2013, when
        counsel for MBD forwarded a letter to Renninger demanding
        payment for the 2010 invoices. The trial court determined that
        the invoices sent by MBD to Renninger constituted separate,
        unambiguous written agreements between the parties providing
        that payment was due upon receipt. Since Renninger’s receipt
        of the invoices occurred “a couple of days after June 12, 2010,”
        the court concluded that the four-year limitations period barred
        the filing of MBD’s writ of summons on June 23, 2014. This
        appeal followed.2]

Trial Court Opinion, 7/10/15, at 1-3.

        MBD raises the following issues for our consideration.

        Whether the [trial] court erred in failing to find that the parties
        entered into a continuing contract, and in failing to find that no
        evidence exists in the record that the contractual relationship
        was terminated prior to April 19, 2013?

        Whether the [trial] court erred in finding as a matter of fact that
        the invoices were actually mailed by [MBD] on the day that each
        was dated, and erred in finding that at most the mail would have
        taken [one to three] days from Beaver County to Erie County?

        Whether the [trial] court erred as a matter of law in finding that
        the statute of limitations began to run on the date of each
        invoice rather than on the demand for payment?

MBD’s Brief at 8.

____________________________________________


2
    Both MBD and the trial court have complied with Pa.R.A.P. 1925.



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     MBD’s claims each challenge the order granting Renninger’s motion for

judgment on the pleadings.    Because these issues are closely related, we

address them in a single discussion.

     Here, the court reviewed the pleadings, including the invoices attached

to MBD’s complaint.    The court reasoned that each invoice constituted a

separate, unambiguous contract because each invoice stated it was payable

upon receipt.    The date appearing on the final receipt MBD forwarded to

Renninger was June 12, 2010. Allowing a few days for delivery, the court

held that the four-year limitations period applicable to breach of contract

actions, see 42 Pa.C.S.A. § 5525(a), barred MBD’s writ of summons filed on

June 23, 2014.

     In a breach of contract action, the limitations period begins to run on

the date an action accrues, i.e. the date of the breach. Packer Soc. Hill

Travel Agency, Inc. v. Presbyterian Univ. of Pa. Med. Center, 635 A.2d

649, 652 (Pa. Super. 1993). Our task here is to determine whether the trial

court correctly concluded, based on the pleadings, that Renninger breached

the parties’ agreement and triggered the limitations period when it failed to

make payment upon receipt of MBD’s June 12, 2010 invoice.            For the

reasons that follow, we hold that Renninger is not entitled to judgment.

     We begin by noting our well-settled standard of review for judgment

on the pleadings.




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     Entry of judgment on the pleadings is permitted under
     Pennsylvania Rule of Civil Procedure 1034, which provides that
     “after the pleadings are closed, but within such time as not to
     unreasonably delay trial, any party may move for judgment on
     the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on
     the pleadings is similar to a demurrer. It may be entered when
     there are no disputed issues of fact and the moving party is
     entitled to judgment as a matter of law.

     Appellate review of an order granting a motion for judgment on
     the pleadings is plenary. The appellate court will apply the same
     standard employed by the trial court. A trial court must confine
     its consideration to the pleadings and relevant documents. The
     court must accept as true all well pleaded statements of fact,
     admissions, and any documents properly attached to the
     pleadings presented by the party against whom the motion is
     filed, considering only those facts which were specifically
     admitted.

     We will affirm the grant of such a motion only when the moving
     party's right to succeed is certain and the case is so free from
     doubt that the trial would clearly be a fruitless exercise.

Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 92 (Pa.

Super. 2015), quoting Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d

177, 185 (Pa. Super. 2013) (citation omitted), appeal denied, 96 A.3d 1029

(Pa. 2014).

     MBD argues that the trial court erred in granting Renninger’s motion

for judgment on the pleadings because the parties entered a continuing

agreement.    According to MBD, the parties’ contractual arrangement

encompassed the mutual provision of labor for various construction projects.

MBD further alleges that the parties’ practice was to set-off sums owed as a

result of supplying labor for the various projects. MBD argues that this was

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done on an ongoing basis and that there was no fixed time for payment or

for the termination of the contractual relationship.

      In cases of a written contract, the intent of the parties is the
      writing itself. If left undefined, the words of a contract are to be
      given their ordinary meaning. When the terms of a contract are
      clear and unambiguous, the intent of the parties is to be
      ascertained from the document itself. When, however, an
      ambiguity exists, parol evidence is admissible to explain or
      clarify or resolve the ambiguity, irrespective of whether the
      ambiguity is patent, created by the language of the instrument,
      or latent, created by extrinsic or collateral circumstances. A
      contract is ambiguous if it is reasonably susceptible of different
      constructions and capable of being understood in more than one
      sense. While unambiguous contracts are interpreted by the
      court as a matter of law, ambiguous writings are interpreted by
      the finder of fact.... [T]he question of whether a contract is
      ambiguous is a question of law. Our standard of review over
      [this question] is de novo and to the extent necessary, the scope
      of our review is plenary as this court may review the entire
      record in making its decision.

Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 890 (Pa.

Super. 2006), citing Kripp v. Kripp, 849 A.2d 1159, 1163–1164 & n.5 (Pa.

2004) (citations omitted).

      The trial court’s decision here rested upon the conclusion that the MBD

invoices constituted separate, unambiguous contracts since each provided it

was payable upon receipt. Because the final invoice forwarded by MBD was

dated June 12, 2010, the four-year statute of limitations barred MBD’s writ

of summons filed on June 23, 2014.         Our review of Renninger’s answer

reveals that in three separate paragraphs, the defendant denied that “the

invoices accurately reflect[ed] the parties’ agreement and course of dealing.”

Renninger’s Answer and New Matter, 10/3/14, at 2 ¶¶ 7-9.            Renninger’s

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denial injected an ambiguity into the terms of the parties’ written

agreement, which required resolution by the fact finder.           As such,

Renninger’s right to relief was not free from doubt and the trial court erred

in granting judgment on the pleadings in its favor.     Accordingly, we are

constrained to vacate the court’s order and remand this matter for further

proceedings.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2016




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